As Adam Serwer writes, with Kavanaugh's ascension to the Supreme Court, "there is no discriminatory voting restriction the justices will be unable to sanction, no immigration law born in animus they will be unable to approve, no expansion of corporate power they will be unable to accept, no grant of presidential immunity they will be unable to uphold, no financial or environmental regulation they will be unable to strike down, no religious objection to an antidiscrimination law they will be unable to recognize, no worker protection they will be unable to repeal, no limitation on abortion they will be unable to allow, and no abuse of power by law enforcement they will feel compelled to restrict". The Court will be a generational disaster for workers, women, minorities, immigrants, both undocumented and legal, and the environment, returning us to the era before the protections of the New Deal and to the late 1800s when it comes to voting rights.
Kavanaugh's confirmation makes the illegitimacy of the Court manifest. Four of the five members of the conservative majority have been confirmed with only the votes of Senators representing a minority of the country's population. Three have been appointed by presidents who originally did not win the popular vote. Two are creditably accused of sexual harassment or assault and two have been appointed by a President who bragged about his own sexual assaults. The only principle that holds them together is expediency.
To quote Serwer again, "The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived...the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice...Where federalism meets its goals, it [the Court] will employ federalism. Where the supremacy of the federal government must be invoked, it will invoke the supremacy of the federal government. A Court that concludes that anti-Christian animus motivated the decision to uphold an antidiscrimination law protecting gay and lesbian couples but is deaf to the anti-Muslim statements of a president imposing a ban on Muslim travelers is not interested in consistency. A Court that says it is a violation of the First Amendment for California to make crisis pregnancy centers provide patrons with information about the availability of state abortion services but allows South Dakota to force doctors to read from an anti-abortion script is unconcerned with integrity. A Court that preaches fidelity to the Constitution but strikes down part of the Voting Rights Act without so much as naming what part of the founding document it violates regards honesty as a disposable virtue."
Moreover, the Supreme Court, with substantial help from Mitch McConnell, has become the most destructive force for the 21st century American democracy. Bush v. Gore, the partisan and unprecedented decision that installed G.W. Bush as President was without grounding or precedent and amounted to nothing less than a judicial coup. Citizens United has turned the American political system into the playground of billionaires who can keep their purchased politicians and policies on the national stage despite lack of any significant public support. Sheldon Adelson, the man who drove the universally condemned move of the US Embassy to Jerusalem, alone could spend over $100 million helping Republicans get elected over the last two election cycles. Despite Justice Alito's protestations to the contrary, dual nationals such as Adelson have illustrated one of the ways boatloads of foreign money have been funneled to influence our elections.
Even more destructive than these two decisions, however, was Shelby v. Holder, which gutted the 1965 Voting Rights Act and revived the Jim Crow tactics of massive voter suppression and, now, purges of the voting rolls. The Court's unwillingness to restrain extreme partisan gerrymandering and inability to prevent illegal racial gerrymandering, as illustrated by the disenfranchisement of voters in North Carolina and Texas for every election this decade, has further broken our democracy.
Because of this, it is estimated that Republicans have a built-in advantage of 7% to 11% in elections for the House of Representatives. Democrats have, in fact, won more votes for the House than Republicans in the last three election cycles but still remain a minority. It's even worse in the Senate because of the small state bias of the Constitution. Currently, Senate Democrats and 2 independents represent 40 million more Americans than the Republican majority and it is forecast that within the next two decades 30% of the population will control an unheard of 70 seats in the Senate. Finally, because of the perpetual stain of slavery, America's original sin, we have the wholly undemocratic Electoral College. In two of the last three elections where Republicans won the presidency, they have lost the popular vote. I think it is safe to say that this is the first time in over two centuries, if ever, where Congress and the White House are controlled by a party that has lost the overall popular vote in the House, Senate, and Presidency.
Even when Democrats manage to win the presidency, they run up against the obstruction of Mitch McConnell who has shown a willingness to obliterate virtually every Senate norm and procedure in a wanton grab for political power. Beginning with his stated goal of obstructing President Obama's agenda from the moment after his election to his refusal to fulfill the Senate's constitutional duty to advise and consent by denying even a hearing to Merrick Garland, thereby blocking the shift in the balance of the Court from conservative control that has existed for the last half century, McConnell has been an equal partner to the Court in the destruction of American democracy.
In a frightening article by historian Christopher Browning, he states, "If the US has someone whom historians will look back on as the gravedigger of American democracy, it is Mitch McConnell. He stoked the hyperpolarization of American politics to make the Obama presidency as dysfunctional and paralyzed as he possibly could. As with parliamentary gridlock in Weimar, congressional gridlock in the US has diminished respect for democratic norms, allowing McConnell to trample them even more. Nowhere is this vicious circle clearer than in the obliteration of traditional precedents concerning judicial appointments...One can predict that henceforth no significant judicial appointments will be made when the presidency and the Senate are not controlled by the same party. McConnell and our dysfunctional and disrespected Congress have now ensured an increasingly dysfunctional and disrespected judiciary, and the constitutional balance of powers among the three branches of government is in peril." Considering the previously mentioned small state bias in the US Senate and the Electoral College, that means it is quite possible that no Democratic president will be able to get a Court nominee confirmed for the foreseeable future. In addition, the relative youth of the current illegitimate conservative majority makes it even more likely that conservative control of the Court will extend for another generation at least.
McConnell's and his fellow Republicans' thirst for power has also led them to get behind probably one of the most unqualified presidents in American history. But, despite all his baggage and clear penchant for authoritarian rule, Trump promised to give them what they truly desired, a government for plutocrats, in the form of tax cuts, deregulation, destruction of the social safety net, and a Court sympathetic to almost unfettered corporate power. The fact that the GOP is teeing up another round of tax cuts that are already unpopular even with their base only illustrates where the party's fealty lies.
While Republicans congratulate themselves on all that "winning", Trump has set about dismantling the world order that has existed since the end of World War II. To continue with Browning, "His preference for bilateral relations, conceived as zero-sum rivalries in which he is the dominant player and 'wins,' overlaps with the ideological preference of Steve Bannon and the so-called alt-right for the unfettered self-assertion of autonomous, xenophobic nation-states—in short, the pre-1914 international system. That 'international anarchy' produced World War I, the Bolshevik Revolution, the Great Depression, the fascist dictatorships, World War II, and the Holocaust, precisely the sort of disasters that the post–World War II international system has for seven decades remarkably avoided."
This is compounded by Trump's penchant for isolationism, tariffs, and restricting immigration, views that reflect America First but result in America Alone. As Browning also notes, in the 1920s these policies resulted in "an increase in income disparity and a concentration of wealth at the top, and both Congress and the courts eschewed regulations to protect against the self-inflicted calamities of free enterprise run amok. The government also adopted a highly restrictionist immigration policy aimed at preserving the hegemony of white Anglo-Saxon Protestants against an influx of Catholic and Jewish immigrants. (Various measures barring Asian immigration had already been implemented between 1882 and 1917.) These policies left the country unable to respond constructively to either the Great Depression or the rise of fascism, the growing threat to peace, and the refugee crisis of the 1930s." Sound familiar?
On the domestic front, Trump is busy enriching himself through the powers of his office primarily through events at his hotels and golf courses but also apparently by offering foreign policy favors in return for investments his business. His attacks on the independence of the judicial branch and the DOJ not only go largely unrefuted by the GOP majority but are actually abetted by a group of co-conspirators on the House Intelligence Committee. Creditable evidence of the Trump campaign's collusion with Russian in influencing our electoral processes goes uninvestigated because, as Browning notes, Republicans largely felt "Better Putin than Hillary." Clear evidence that Trump brazenly violated campaign finance laws in the Stormy Daniels' case is simply passed off as Trump being Trump. Just this week, Trump was creditably accused a being a life-long money launderer and tax evader and the Republicans will do nothing because they got their "win" with Kavanaugh, primarily by refusing to release relevant documents and information, now apparently with the complicity of Chief Justice John Roberts, and actually controlling an FBI investigation into the allegations of his sexual assaults.
Browning, who specializes in the rise of fascism in the wake of World War I, notes the frightening similarities between Weimar Germany and the US today. To quote Browning again, "Thinking that they could ultimately control Hitler while enjoying the benefits of his popular support, the conservatives were initially gratified by the fulfillment of their agenda...Needless to say, the Nazis then proceeded far beyond the goals they shared with their conservative allies, who were powerless to hinder them in any significant way."
Now, as even Browning agrees, the US is not about to turn into a Nazi dictatorship. Rather it is becoming to look more and more like what I like to call a "managed democracy" and others an "illiberal democracy", similar to what exists in Russia, Hungary, and Turkey. The semblance of a democracy remains, as does the semblance of a free press, but the reality is that no real challenge to the ruling party's authority will be tolerated. Elections can be "managed" through gerrymandering and voter suppression. The explosion of new media means that there are plenty of outlets for government propaganda while attacking independent and opposition media as "fake news" or threatening their licenses, both of which are frequent tactics of Trump. This autocratic "managed media" not only includes using government agencies' press offices as part of the propaganda machine, but also restricting potentially damaging information from becoming public. Meanwhile, the oligarchs and plutocrats feed at the country's trough.
Trump and his friends in the GOP have already signaled that Jeff Sessions is history after the midterms. The new Attorney General will be expected to continue the re-opened investigation of Hillary Clinton's emails and purge the FBI and DOJ of those involved in the initiating the Russia investigation. Regardless of what happens in the midterms, it seems probable that the Mueller investigation will be terminated or severely constricted after those elections. That is especially probable if the Democrats win the House because nothing would play to Trump's strength than to turn that investigation into another partisan scrum. In addition, all of those convicted by Mueller in connection with the probe could be pardoned. Trump will also be especially bolstered by the fact that the majority of the Supreme Court is on board with the concept of the "unitary executive" where the President is immune from any legal restriction other than impeachment and, as Alan Dershowitz explains it, can "tell the Justice Department who to investigate, who to prosecute, and who not to investigate, and who not to prosecute". Trump has already been successful in that regard, forcing investigations to be opened by the DOJ while limiting others that might be detrimental to him. He also knows Republicans will have enough votes in the Senate to ensure he is never convicted of impeachment. It's an autocrat's dream.
Those are just the near-term atrocities. Longer term, the attack on gays, transgenders, immigrants, the poor, minorities, Jews, and civil rights will intensify. Affirmative action and abortion rights will be severely curtailed. The American gulag into which undocumented parents and children, along with some actual American citizens, disappear will expand. It's quite possible that Trump will not only order that the DOJ investigate the Democrat who emerges as his most formidable opponent in 2020 but that the DOJ will comply and open such an investigation. It seems probable that we will see what is essentially government-sponsored violence, mainly driven by Trump's divisive and destructive rhetoric. And the existential threat to much of humanity, climate change, will not only go unaddressed but also be exacerbated by Trump and his plutocrats.
Today, the focus of our anger and rage should be ensuring that Democrats at least win the House come November. Doing so is critical for the our future. That means voting for virtually any Democrat, no matter how uninspiring they might be, because Democrats at least need one lever of power. Winning the House will at least put an end to the GOP's destructive legislative agenda and will provide the platform for exposing the crimes of Trump and his administration, as well as the myriad of lies about multiple subjects told by Kavanaugh and perhaps even for investigating Roberts for withholding to complaints against Kavanaugh from the DC Circuit. As Eugene Robinson put it the other day, "Voters are the last line of defense. You must save the day."
But it is important for Democrats to fully understand that we have entered an era of minority rule. The built-in, structural disadvantages that Democrats now face in elections for the House, the Senate, and the Electoral College will limit the chances for Democratic power. And, even when Democrats do manage to gain enough power to pass a legislative program, the illegitimate conservative Court will strike down any extension of federal power that would restrict the free hand of the plutocrats. We have already seen a clear example of this in the creation of a new judicial principle out of whole cloth by Roberts in order to strike down Medicaid expansion. The democracy in this country that you and I have known for the last half century after the Voting Rights and Civil Rights Acts no longer exists and is gone for the foreseeable future.
For Democrats, then, beyond the obvious of continuing to try to overcome these inherent structural barriers and win as many elections as possible, it is time to think about how we can restructure our democracy to actually make it more democratic and representative. Revamping the electoral system for the Senate or the Electoral College is almost a non-starter because of the impossibility of passing the constitutional amendments that would be required. As Paul Campos wrote, the Constitution "has become fundamentally dysfunctional for the age in which we now live." Its obsession with restricting the abuses of the majority have allowed for the emergence of a tyranny of the minority.
One ongoing effort to at least deal with the situation of a president being elected with the minority of the vote is the National Popular Vote Interstate Compact (NPVIC) initiative. Under this plan, states would commit their Electoral College delegates to vote for the winner of the national popular vote even if their state had not voted for that candidate. The plan would kick in when states with a total of 270 electoral votes commit to it. So far, only eleven states and the District of Columbia have signed on to this plan and they account for only 172 electoral votes, less than two-thirds of the 270 required. It is unlikely that the smaller states in the Union will sign on to the NPVIC, making it unlikely to ever realize its goal.
An easier task, yet still formidable, is to create a number of primarily blue states, thereby reducing some of the current inequity in both the Senate and the Electoral College. Senator Schatz has written, "One of our highest medium term priorities must be to enfranchise - to empower, Americans in Puerto Rico, DC, Guam, American Samoa with full representation in Congress." That is also the idea behind the Three Californias initiative. But creating new states is also difficult under our present Constitution. The initiative must not only be passed by the new state or the entire state from which the new state is being carved but it must also receive approval from Congress and the President.
Regarding the illegitimacy of the nation's highest court, one avenue is to at least neuter the power of the Supreme Court by packing the Court with at least two Democratic, I won't even say liberal, nominees in order to restore the balance to the Court that should have been in place if Merrick Garland had been confirmed as he should have. This strategy will, unfortunately, only force the Republicans to respond in kind and create of cycle of retribution that will destroy whatever tiny scintilla of credibility the Court might have left.
Similarly, one thought being considered is for Democrats to simply ignore the rulings of the current Court. As I've written earlier, over the last few years, Republicans have realized courts really have no independent enforcement tool and been effectively ignoring court orders, including those of the Supreme Court, especially when it comes to voting rights. As Mark Joseph Stern notes, "The Supreme Court has always needed buy-in from the political branches to enforce its rulings...What if Democrats pass Medicare for All, and the Supreme Court strikes it down, with Kavanaugh casting the decisive fifth vote? It’s not hard to envision Democrats marching in the streets, demanding that the president and Congress ignore the ruling... It’s easy to envision the presidential statement: 'As the chief executive, it is my duty to enact this legislation, passed through the democratic process, and to reject the illegitimate ruling of Donald Trump’s Supreme Court'." In the nearer future it's easy to envision similar actions being taken by governors in blue states where Democrats control the legislature and the executive, prompting a federal intervention order by a Republican president and a constitutional crisis.
Legislatively, others recommend getting rid of the filibuster entirely in the Senate, making it easier for Democrats to pass popular expansive programs in the rare moments when we do have control of the House, Senate, and White House. The resiliency of Obamacare so far has illustrated that, despite the difficulties in passing this kind of legislation, the majority of the country eventually rallies behind these programs when the benefits become clear. But, as in the case of Court packing, removing the filibuster for all legislation will create an equal and perhaps even more forceful reaction from the GOP.
To my mind, the biggest bang for the buck in terms of electoral reform is an approach that is mentioned way too infrequently, namely greatly expanding the size of the House of Representatives. Not only would this potentially make partisan gerrymandering far more difficult, it would also alleviate much of the small state bias in the Electoral College. Reducing the size of the current districts would make running for the House far less dependent on raising a ton of money and would simply make the House much more representative than it is now, in accordance with the framer's original intention. In fact, historical research has shown that the founders wanted districts to have no more than 50,000 inhabitants.
The other bonus of expanding the size of the House is that is simply take an act of Congress and the signature of the President in order to get it done. The current 435 seat limit was imposed by the Reapportionment Act of 1911 and has not changed in the century since.
All of these option require political power and that means winning elections despite the structural disadvantages. Right now, the most direct and easiest path for the near term is to do everything in our power to expand the electorate. That primarily means gaining power at the state level in order to stop the voter suppression, draw fairer districts, make registering and voting easier, and expanding the franchise to felons and possibly younger voters.
But we need to be clear, the next two years ahead are perhaps the most perilous time for our country since the Civil War. The Republican party has become increasingly extremist in the last to decades. In 2008, they had a choice to pivot back toward the center. They chose obstruction instead. In 2016, they had a choice to repudiate an unqualified, ignorant, aspiring autocrat. They chose to ride him to victory. The party has become almost cult-like in its obeisance to Trump. That will not change as long as the plutocrats they party represents get what they want. Never forget that the GOP is a minority party and an increasingly shrinking minority at that. For them, every election going forward will be yet another "Flight 93" election and the methods and tactics they will use to stay in power will only become more extreme and brazen.
Regardless of what happens in the midterms, Trump's autocratic tendencies will only become more apparent and more terrifying in 2019 and 2020. If Democrats don't win the House, he will feel he has a free hand. If Democrats do win the House, the pressure of the resulting investigation will push Trump to become even more aggressive and more authoritarian in order to protect himself and his family from ruin.
The corruption of the legislative, executive, and judicial branches by Trump will continue, and the media and criminal justice system will be under a broad assault. It is up to all of us to fight to save our democracy. As Sarah Kendzior writes, "That leaves one check: the people. That is why we fight. That is why we protest. That is why we vote. Because we, the people, are all we have left."
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