Wednesday, October 31, 2018
A Message for Young People Who Aren’t Voting Because of Climate Change by Emily Atkin
Defeatism is understandable. But it's not based on reality.
By EMILY ATKIN
October 31, 2018
The midterm elections next week could be the most consequential in modern U.S. history. But a staggering number of young people aren’t planning to vote in them. To figure out why, New York magazine interviewed 12 conscious non-voters ranging in age from 21 to 29 years old, and published the results on Tuesday. They were not well-received.
Kevin M. Kruse
✔
@KevinMKruse
"Why should I vote for a party that doesn’t really do anything for me as a voter?"
Well, why should a party do anything for you if you don't vote?
Do you think sitting it out is going to change things? They'll suddenly care about your issues because...?http://nymag.com/intelligencer/2018/10/12-young-people-on-why-they-probably-wont-vote.html …
1:18 AM - Oct 31, 2018
12 Young People on Why They Probably Won’t Vote
Only a third of Americans ages 18 to 29 say they will cast a ballot next month. Here, we ask why.
nymag.com
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Most of the voters’ explanations read like lazy excuses (or excuses for laziness). “I had a hectic schedule,” said Laura, 21, on why she didn’t register to vote. “I just didn’t have the time and energy.” Some said they didn’t know enough about political issues to feel confident casting a vote. Others said they weren’t sure how to register or vote in the first place.
Tom & Lorenzo
✔
@tomandlorenzo
"Honestly, if someone had the forms printed for me and was willing to deal with the post office, I’d be much more inclined to vote." God help us all. http://nymag.com/intelligencer/2018/10/12-young-people-on-why-they-probably-wont-vote.html#comments …
1:05 AM - Oct 31, 2018
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The most disheartening response, however, was from Adam, a 25-year-old former Bernie Sanders volunteer who is registered to vote and knowledgable about politics. The issue, he said, is that mainstream Democrats aren’t “exciting.” And Adam doesn’t believe most Democratic Party politicians will make any difference in solving the problems he cares about—specifically, climate change.
“I look at it this way,” Adam said. “That report just came out the other day about global warming, talking about how we have 12 years, until 2030, for this radical change unlike the world has ever seen. And The Hill newspaper just put out that article about how the DNC does not plan on making climate change a big part of their platform, even still.
“I just do not understand why I would vote for a party that doesn’t care about me in any way,” he added. “They can say, ‘Sure, we’ll lower student interest rates.’ Well, I don’t give a shit about student interest rates if I’m not going to live past 13 more years on this planet.”
Adam’s frustration is valid. As a whole, the Democratic Party has never treated climate change with the urgency it deserves. Its leaders have also given no indication that the party will work aggressively to solve the problem if voters elect Democratic majorities to both the House and Senate next week.
But Adam’s defeatism—his idea that humanity is doomed no matter which party controls the government—is based on a misunderstanding of the climate problem.
The report he cites does not actually say that everyone is going to die by the year 2030. It doesn’t even say humans have twelve years until the fight is over. It says humans have twelve years to implement changes that will limit global warming to 1.5 degrees Celsius. Warming of 1.5 Celsius is very bad, but it’s not as bad as 2 degrees or 3 degrees. And it’s nowhere near as deadly and catastrophic as warming of 4 or 5 degrees, which are plausible scenarios if we allow fossil fuel companies to continue spewing carbon dioxide in the atmosphere.
Many political issues are complicated. But on climate, the parties’ differences are relatively simple: The Republican Party’s political platform rests on allowing fossil fuel companies to continue emitting unchecked—even removing existing regulations—in perpetuity. The Democratic Party’s political platform does not. Their platform may not have a comprehensive plan to solve climate change, but it has emissions regulations and renewable energy investments. Most importantly, it acknowledges the reality of catastrophic global warming, and the need to reduce it and adapt to it.
Humans are no longer voting to preserve our current climate. We’re deciding whether, in 50 years, the situation will be apocalyptic or merely pretty bad. The former is guaranteed if Republicans remain in charge and continue to deny that humans cause climate change. The latter is still possible, with the right people in power. That may not be the “exciting” reason to vote that Adam is looking for. But it’s an incredibly high-stakes and meaningful one nonetheless.
Emily Atkin is a staff writer at The New Republic.
@emorwee
Friday, October 26, 2018
Justice Thomas in his Own Words By Eric Segall
FRIDAY, OCTOBER 26, 2018
Justice Thomas in his Own Words
By Eric Segall
Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since.
Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.”
Dozens of Thomas’ law clerks have become federal judges, and his originalist statements about constitutional interpretation have been largely adopted by the Federalist Society, a conservative non-profit that is now assisting President Trump in his selection of Supreme Court Justices and lower court judges.
No one can deny Justice Thomas’ influence on our law and politics since he became a Justice more than 25 years ago. Yet, there are numerous aspects of his career that are troubling and mystifying. Here is Justice Thomas in his own words and votes.
A. Affirmative Action and Race
Although Justice Thomas has said affirmative action helped him get into Yale Law School, he has minced no words about his hatred for such programs. In Fisher v. Texas I, the plaintiffs challenged the University of Texas’ limited used of racial preferences to fill out 25% of its class (the other 75% was decided through a facially neutral top 10% program). At the time, the University was roughly 50% white and 50% non-white. Justice Thomas compared the University’s admission process to slavery and desegregation:
Slaveholders [also] argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life …. In our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today …. The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.
The reference to slavery is extraordinary and needs no comment. As to segregation, the first black student to attend the University of Texas did so in 1955. To Justice Thomas, the intentions of people who in good faith wanted more racial diversity on campuses in 2013 are no different from the intentions of people who wanted all-white campuses in 1954. This is a shamelessly wrong false equivalence.
Justice Thomas also has strong feelings about minority students attending elite universities. In Grutter v. Bollinger, he said this about black students at the University of Michigan Law School: “The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition.” And in Fisher, he said that “Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates…. As a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where under performance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete.”
Justice Thomas relied on controversial academic studies to make these bold claims. Moreover, who is he to decide for minority students whether it is in their best interests to attend elite schools? No one is forcing them to do so. And, it is also fair to ask what any of this fiery rhetoric has to do with whether the 14th Amendment precludes elite schools from seeking racial diversity by using racial criteria.
Off the Court, Justice Thomas has compared his experiences in the segregated South to those at Yale Law School:
At least southerners were up front about their bigotry: You knew exactly where they were coming from. Not so the paternalistic big-city whites who offered you a helping hand so long as you were careful to agree with them but slapped you down if you started acting as if you didn't know your place.
Thomas is of course completely entitled to resent the condescension that he says he faced at Yale, but again to suggest white liberal Yale law professors in the early 1970’s were similar to white bigots during segregation is another matter altogether.
B. Gay Rights
In one of the most controversial dissents of the last fifty years, Justice Antonin Scalia said the following about a Texas statute that criminalized consensual, private gay sodomy: “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable…’ the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” Scalia went on to say that the law was constitutional because “[m]any Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Justice Thomas joined this horrific dissent without qualification. He also wrote a short opinion explaining that, although he agreed with Scalia that the law was constitutional, he would vote against this law if he were in the legislature: “If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.” Apparently, Thomas’ objection to punishing gays and lesbians for private, consensual sodomy is that other crimes deserve more attention, not that gays and lesbians have a right to enjoy private, consensual intimacy.
C. Abortion
Although Thomas’ confirmation hearing is most famous for Anita Hill’s allegations of sexual harassment, the part of the hearing about abortion is well worth remembering. Thomas graduated from Yale Law School in 1974, one year after the Court handed down Roe v. Wade. Seventeen years later, Senator Patrick Leahy asked Thomas about what was at the time and still is the most controversial constitutional law issue of the last fifty years.
Senator LEAHY. “Have you ever had discussion of Roe v. Wade, other than in this room, in the 17 or 18 years it has been there?”
Judge THOMAS. “Only, I guess, Senator, in the fact in the most general sense that other individuals express concerns one way or the other, and you listen and you try to be thoughtful. If you are asking me whether or not I have ever debated the contents of it, that answer to that is no, Senator….”
Senator LEAHY: “So you don’t ever recall stating whether you thought it was properly decided or not?
Judge THOMAS. “I can’t recall saying one way or the other, Senator.”
Here is another excerpt about abortion from Thomas’ testimony:
"Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."
Andrew Peyton Thomas’ biography of Justice Thomas alleges that William Bradford Reynolds, conservative assistant attorney general under Ronald Reagan, said that “I know we [he and Justice Thomas] discussed [Roe]. I think that he thought little of Roe v. Wade. … [F]rom a scholarly standpoint, we were talking about constitutional law, constitutional issues, and Supreme Court decisions. It was clear he didn’t think much of it.”
Despite widespread reporting of Reynolds’s claims, it appears he has never denied that this conversation took place. Therefore, there are only three possibilities. Either Thomas had the conversation but didn’t remember it, or he never had it, or he lied about it. For the sake of argument, let’s assume that Thomas was telling the truth. That means a Supreme Court nominee never once discussed the correctness of Roe or formed an opinion about it, from the day he graduated law school in 1974 until his confirmation hearing in 1991. Arguably, that itself should have been substantially troubling to the Senate Judiciary Committee.
In 1992, Justice Thomas’ first full year on the bench, the Court reaffirmed Roe v. Wade’s conclusion that women have a constitutional right to terminate their pregnancies in Planned Parenthood v. Casey (albeit the Justices changed the legal framework protecting that right from a trimester approach to the “undue burden” standard). Justice Thomas joined the bitter and harsh dissents of Chief Justice Rehnquist and Justice Scalia arguing that Roe should be reversed. Many years later. Thomas summed up his views in a different abortion case:
My views on the merits of the Casey joint opinion have been fully articulated by others (referring to Scalia and Rehnquist). I will not restate those views here, except to note that the Casey joint opinion was constructed by its authors out of whole cloth. The standard set forth in the Casey joint opinion has no historical or doctrinal pedigree. The standard is a product of its authors’ own philosophical views about abortion, and it should go without saying that it has no origins in or relationship to the Constitution and is, consequently, as illegitimate as the standard (the trimester framework) it purported to replace.
These views are similar to the 1992 dissents of Scalia and Rehnquist, which Thomas joined in full. Maybe Thomas’s views on abortion were only formed after he heard arguments in the case, but it is still interesting that when asked about Roe, he didn’t say he couldn’t answer as has been the case for most nominees; he said he had not yet formed an opinion. A year later, he voted to overrule it.
D. Children and Speech
The issue in Brown v. Entertainment Merchants Association, was the constitutionality of a California law banning the sale of violent video games to minors. The majority struck down the law on the grounds, among other things, that violent games were protected speech as to minors. Thomas disagreed, saying that “the practices and beliefs of the founding generation” did not “include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” In a prior case, Thomas had said that children have no first amendment rights in public schools.
As Ian Millhiser pointed out in his article on Justice Thomas’s importance as a legal thinker, Thomas believes that children have no speech rights separate from their parents. Thomas “rooted” these views “in his belief that seventeenth and eighteenth-century adults lorded over children like petty tyrants.”
Millhiser correctly questioned why Thomas’s summary of the relationships between children and parents in 1787 mattered to constitutional law. “That is, even if Thomas is correct that the founding generation ‘believed parents to have complete authority over their minor children and expected parents to direct the development of those children,’ why does it follow that the founding generation would have let the government restrict children’s speech…?” Although we can all agree that children do not have the same speech rights as adults, the notion that they have no speech rights at all separate from their parents, teachers, and guardians, is quite simply absurd.
Two critics of Justice Thomas’s conclusion about the complete lack of students’ speech rights in public schools said the following about his analysis of that issue:
This is an extraordinary claim for many reasons, not the least of which is the fact that public schools did not exist when the First Amendment was drafted. Even by the time the 14th Amendment was adopted, making the First Amendment applicable to the states, public schools were just getting started…. Justice Thomas evidently believes the question of whether students have free-speech rights should be answered by conducting an imaginary séance with 18th- and 19th-century Framers and ratifiers, who should be asked: Do you think public-school students have a constitutional right to free speech while in school? This line of inquiry is about as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?
E. Originalism
Justice Thomas, first and foremost, identifies himself as an originalist. During his confirmation hearings, he clearly signaled his originalist philosophy. In numerous important constitutional law cases, Justice Thomas has said that the Justices should be guided by the Constitution’s original meaning. For example, in United States v. Lopez, Thomas argued that the Court should alter its commerce clause jurisprudence to greatly reduce the power of Congress in order be “more faithful to the original understanding of that Clause.” In McDonald v. City of Chicago, in which the Court applied the Second Amendment to the states for the first time, Thomas wrote a sole concurrence arguing that it is the original meaning of the Privileges or Immunities Clause of the 14th Amendment that allows the Second Amendment to restrict state action, not the Due Process of the Fourteenth Amendment, an opinion which if accepted by the rest of the Court could have major implications for constitutional law. And, in U.S. Term Limits v. Thornton, he strenuously argued, in dissent, that the Constitution’s original meaning allows the states to place term limits on members of Congress, a conclusion rejected by the majority opinion.
Yet, despite Justice Thomas’s constant refrains about the importance of the Constitution’s original meaning to constitutional interpretation, he has regularly voted to strike down state and federal laws without any mention of originalist evidence. For example, he has voted to strike down every campaign finance law (state and federal) and every affirmative action program (state and federal) that has come before him without once relying on ratification era sources. He joined with the other conservative justices to invalidate the key provision of the Voting Right Act despite the opinion’s silence on historical sources. This list could go on and on. Justice Thomas’ failure to harness originalist evidence for these major constitutional law decisions, and there are many more, speaks louder than those opinions where he claims such evidence supports his decisions.
As I detailed in a prior work, Justice Thomas’ America looks like this: Americans possess a right to own guns but no right to abortion; no city, state or federal government may take racial criteria into account where trying to address our racist past and current racial problems; gays and lesbians are strangers to equal rights under the law; Congress is prohibited from addressing serious economic issues that plague our country; corporations may spend as much money on elections as they want because money is speech and corporations are people; the President of the United States may fight terrorism without any constitutional check from the other two branches of government; states may place term limits on members of Congress; and the rights of majority religions constitute constitutional trump cards authorizing discrimination against minorities and traditionally disadvantaged groups.
Perhaps Justice Thomas reached all these conclusions based on his good faith examination of 1787, 1789, and 1868 sources. But if so, it is surprising that so many of his opinions contain no such summary or evidence. Moreover, the sum of all these votes looks surprisingly similar to the Republican Party Platforms both in 1992 and today. Maybe that’s just a coincidence--or maybe not.
Justice Thomas often cloaks his right-wing extremism in originalist musings and obviously deeply-felt personal experiences. Regardless of how he came to his political views, however, his consistently partisan votes as a Justice are unlikely to change with more experiences or more historical analysis. He will almost certainly support the far right in our political and cultural wars for as long as he remains a Supreme Court Justice.
POSTED BY ERIC SEGALL AT 7:30 AM
Wednesday, October 17, 2018
The positive power of partisanship by Judd Legum
The positive power of partisanship
"When
bad men combine, the good must associate; else they will fall, one by
one, an unpitied sacrifice in a contemptible struggle." — Edmund Burke
One
thing Americans can agree on is that Americans are too disagreeable.
Our partisan divisions, we are told, are an acute threat to our
democracy.
"[M]embers
of the self-declared resistance are tearing America apart because the
election didn't go their way," Michael Goodwin, a pro-Trump columnist
for the New York Post, opined in October -- an argument echoed by Sean Hannity and many others on the right.
Meanwhile, nearly six in ten Americans believe Trump is "tearing the country apart."
Arnold Schwarzenegger, the former Governor of California, blames both sides. "The politics of division and anger and resentment can drive a strong base to the polls, yes. But it is tearing our country apart at the seams," the Governator said.
According
to the centrists who grace the nation's prestigious op-ed pages, the
solution is to cast aside our partisan divisions and seek compromise.
The problem with politics, David Brooks explained in a 2014 column, is that people care too much.
The problem is that hyper-moralization destroys politics. Most of the time, politics is a battle between competing interests or an attempt to balance partial truths. But in this fervent state, it turns into a Manichaean struggle of light and darkness. To compromise is to betray your very identity.
This is deeply misguided.
Disagreement
and partisanship are essential components of a vibrant democracy.
Muting criticism and debate is a feature of totalitarian regimes.
This
is not to say that America's political system does not have problems.
But the solution is not less partisanship; it's better partisanship.
Partisans make democracy work
In
a democracy, progress requires a large group of people to come together
around a set of common goals. This is the function of parties and
partisans.
Party
affiliation itself requires compromise. Partisans share a basic set of
core beliefs but individuals, particularly those running for office, are
willing to curtail or amend their beliefs to attract others to the
group.
This
is a balancing act. There is a limit to how much individuals are
willing to compromise their personal views to achieve the party's larger
goals. Defining these limits is often the source of intraparty
disputes, which are also a healthy part of a functioning democracy.
Major policy requires partisans
Major policy initiatives -- the kind that can change people's lives for the better -- require a durable political coalition.
Take
Obamacare, for example. It was signed into law in 2010. But its core
features did not get implemented until 2014. It contains pilot programs
to curb costs that won't be completed for another decade.
For
Obamacare to have a chance at success, it needs a loyal group of
partisans to defend it. The defenders of Obamacare are not blind to
facts. But they are believers in the cause and exhibit loyalty and
patience.
In
American democracy, all of the House and one-third of the Senate is up
for election every two years. The decision-makers change. The linkage of
loyalty to party gives ambitious policies a chance to succeed.
The nonpartisan alternative
The
alternative to partisanship is to pursue ad hoc, nonpartisan
compromises around individual policies. This avenue seems more
intellectually honest and rigorous. Russell Muirhead explains the appeal
in his book, The Promise of Party in a Polarized Age:
Independence often seems a more admirable political posture than partisanship. Ideally, citizens should be impartial, like judges, and objective, like scientists. They should make up their minds based on facts, not longstanding loyalties.
But
an independent approach has its limitations. It's no surprise that
advocates of this approach promote a version of politics that is about
making small changes to the status quo.
David Brooks, in a column called "Why Partyism Is Wrong," offers this description of what's at stake:
[P]olitical campaigns and media provocateurs build loyalty by spreading the message that electoral disputes are not about whether the top tax rate will be 36 percent or 39 percent, but are about the existential fabric of life itself.
It's
true that if you believe elections should be about deciding whether the
top tax rate is 36 percent or 39 percent, partisanship has little
value. This is fine if you believe, in general, that the status quo is
good. You don't need partisans to work around the margins.
In
this way, nonpartisanship functions as a smart way for certain kinds of
conservatives to advance their beliefs while seeming open-minded. They
may have convinced themselves that they support a nonpartisan version of
politics because they want to heal America's divisions. But they are
comfortable with nonpartisanship because they are comfortable with how
things stand in America.
But
if you believe, on the other hand, that it is wrong that virtually all
economic gains in the last 40 years have been captured by the top 10%,
you require a different, more partisan, approach.
You
can't resolve political problems through reason and evidence alone,
because a big part of the political debate is determining what
constitutes a problem to be solved. Even if there is an agreement on the
definition of the problem, it needs to be prioritized against all other
problems. Disputes about these fundamental questions can be messy and
divisive. But they are also necessary.
Good partisanship
Partisanship
gets a bad rap. It is a term that is generally used to describe those
who have blinded themselves to reality. Some partisans are like that.
But it doesn't have to be that way.
Good
partisanship is like a good friendship. A good friend is loyal and
supportive. Good friends unite around common values or interests. A
friend would not abandon you over small things, like showing up late to a
movie. When you need help, a friend is there for you, even if it is
inconvenient.
But friendship is not blind allegiance. If your friend steals your car, you may decide not to be friends anymore.
Good
partisans exhibit the same traits of loyalty and patience as good
friends. But if problems arise, a good partisan does not stay silent. If
things get bad enough, a good partisan will sever ties with the party.
Bad partisanship
Partisanship
is not always a virtue. Good partisans unite around values and
interests. Bad partisans unite around hatred and a distorted view of
reality.
The
problem with Trump is not that he's uniting a large group of people
around an agenda. It's that the agenda is not based on values and
defensible facts but bigotry and misinformation.
Six
months after he was elected, 58% of Republicans believed Obama was not
born in the United States, despite incontrovertible evidence disproving
the claim. Trump used that shared belief to launch his political career.
That
is bad partisanship. The way to overcome that is not to seek a middle
ground with those advancing a backward agenda. It's to defeat bad
partisanship with better partisanship.
Division creates accountability
A
common critique of the current political environment is that Congress
has grown increasingly polarized, with Republicans and Democrats nearly
always voting as a block, resulting in gridlock.
It
is true that, over the last 40 years, partisanship has increased in
both chambers, although it has been more pronounced among Republicans in
the last 20 years.
 |
Partisanship
has slowed down the workings of Congress but has not brought it to a
halt. Obama was able to pass Obamacare and a stimulus package. Trump got
his tax cut. None of those policies were passed with bipartisan
support.
America
is becoming more like a parliamentary system, where the party in power
has near complete control of the legislative agenda. That comes with an
often overlooked feature: accountability.
Voters
only vote for one representative. But partisan polarization allows them
to hold an entire legislative body accountable since each candidate is a
rough proxy for an overall agenda. A fan of Trump's tax cuts? Vote for
the Republicans, who nearly unanimously supported the legislation. Want
an approach that does more to boost the incomes of working Americans?
Vote for the Democrats, who unanimously opposed the tax cuts.
We
saw the converse in 2004, where John Kerry ran on a platform of
opposition to the Iraq War. The argument was not as compelling as it
could have been, however, since the war was authorized with huge
bipartisan majorities, including Kerry.
Partisanship gets voters to the polls
The conventional wisdom is that partisan politics turns off voters and sours them on the political process. This is false.
Op-ed
writers seek technocratic compromises, but voters crave clear
differences. Partisan politics brings voters to the polls, and that's a
good thing. Pietro S. Nivola of the Brookings Institution explains:
Marc J. Hetherington of Vanderbilt University demonstrates… voter participation has surged as the partisan divide has grown sharper.The electorate is not turned off by the chasm, and contestation, between the parties. On the contrary, Hetherington finds, the polarized political parties have animated voters of all stripes—liberals, conservatives, and moderates. Growing civic engagement and voter turnouts are hallmarks of a vibrant democracy, not of a “broken” one.
This is also why turnout in party primaries, where the differences between candidates are smaller, is always lower.
There
has been a dramatic rise in political independents in recent years. But
that growth is mostly comprised of political partisans who do not want
to affiliate formally with a party. True independents, who have no
strong ideological leanings, tend to be uninformed and politically inactive.
Liberals, the reluctant partisans
The main difference between liberal partisans and conservative partisans is that the liberals feel bad about it. Muirhead details the problem:
[T]he problem with liberals is that they are reluctant to admit they are in a partisan contest -- and to fight effectively, they need to become less embarrassed by their own partisanship. Liberals tend to believe… they are simply being reasonable and rational. As a result, they expect others will come to the same views as theirs through nothing more than reasoning about evidence… they see their goals supported by common sense and their policy preferences supported by social science.
This
is what many liberals get wrong. They will not convince their opponents
through reason and social science. They must engage in political
combat.
Thanks for reading! Send me feedback at judd@popular.info.
Thursday, October 11, 2018
Why Won’t Democrats Move Left in the Suburbs? By Lee Drutman
September 27, 2018
8-10 minutes
The sprawling 10th district of Virginia stretches from the
conservative West Virginia border to the wealthy and more liberal D.C. suburbs.
With a median household income of more than $120,000, it is the
third-wealthiest congressional district in the country. In 2016, Hillary
Clinton won it, 52 percent to 42 percent, but its Republican congresswoman,
Barbara Comstock, a former lawyer and congressional staffer with an estimated
personal net worth of nearly $1.3 million, was narrowly reelected. Two years
later, though, it looks as if Comstock might lose. Early polling shows her
Democratic challenger, Jennifer Wexton, with a 10-point lead, and Democrats are
starting to believe they can win this seat for the first time since 1978.
The path to a Democratic House majority goes straight
through upscale suburban districts like VA-10, places where Hillary Clinton
outperformed the local Democratic congressional candidate two years ago, and
where enough Republicans are unhappy with Donald Trump and the GOP that their
partisan allegiances are up for grabs. The average median income across
districts that voted for Clinton but sent a GOP member to Congress in 2016 is
just over $75,000. The average median income across all other House districts
is just under $60,000. Arguably then, a simple math holds for the Democrats: To
take back the House, they have to win wealthier districts.
At what cost? How much will Democrats have to compromise the
party’s liberal economic and social principles? My own analysis, published last
year by the Democracy Fund Voter Study Group, suggests that it won’t be that
much. Disaffected Republicans who supported Clinton aren’t just anti-Trump;
they’re also worried about economic inequality, generally supportive of social
welfare programs, and willing to accept higher rates of progressive
taxation—perhaps not as much as core Democrats, but still, far more than typical
Republicans.
The implications are clear: The party, in all likelihood,
could safely move left on economic issues and still win the suburbs—and with
them, the House. But the party establishment seems to have drawn different
conclusions. Democratic power brokers don’t seem to be debating whether their
candidates would do better if they embraced more left-leaning fiscal policies.
Instead, in these pivotal suburban swing districts, the party has consistently
supported corporate-friendly candidates who can raise tons of money (often
because they have personal networks of wealthy friends and business associates)
and who present a “moderate” face to upscale suburban voters. They’re people
like Jon Ossoff, the fiscal and social moderate who ran (and lost) a special
election in Georgia, and Angie Craig, a medical device executive in the Twin
Cities, whose experience running her company’s corporate PAC made her the
leadership’s pick to run for Minnesota’s 2nd district. Such candidates have
left the party once again out of step with its voters and grassroots
organizers, as Democratic strategists continue to chase after suburban
Republican moms who, they believe, would vote for a Democrat, if only Democrats
didn’t want to regulate the big banks quite so much.
How did the suburbs become so pivotal? Democrats and
Republicans once competed equally in the cities and in the countryside, because
both national parties were really just loose coalitions of state and local
parties that spanned the ideological spectrum. In 1960, for example, almost
every state was competitive, regardless of how urban or rural it was.
Following the civil rights era in the 1960s and the
subsequent cultural backlash of the 1970s, the parties began to align along
more consistent cultural lines, and the geographical alignment of the parties
shifted, too. Democrats became the party of cosmopolitan values, secularism,
and diversity, and therefore the cities. Republicans became the party of
traditional values, and therefore the conservative countryside. As a result,
the suburbs became pivotal battlegrounds. Districts like PA-4 (outside
Philadelphia) and CO-6 (outside Denver), situated at the swing-y intersection
between the country and big-city suburbs, earned an increasingly coveted place
as the deciders of elections. A suburban vote had become worth more than an
urban one.
These shifts have not been good for the Democrats. The
Republicans, as the rural party, have a distinct advantage. There are very few
congressional districts that are all country. But there are many districts that
combine small-to-medium cities with countryside, or that combine big-city
suburbs with countryside (like VA-10). Republican voters are simply spread more
efficiently across congressional districts.
In 2016, there were 62 overwhelmingly Democratic
congressional districts (where Clinton won 70 percent of the vote), but just 23
overwhelmingly Republican districts (where Trump won 70 percent of the vote).
This is partly because of Republican gerrymandering since 2010. But the
consequence, by most analysts’ estimates, is that Democrats will have to win
the popular vote in the 2018 midterms by a good 6 or 7 percentage points to win
a majority of seats in the House. It’s a similar story in the Senate, where there
are more red states than blue states, although there are slightly more blue
voters than red across the country.
This situation is more than just unfair. It influences how
Democrats position themselves to win: Structural disadvantages push the Democrats
toward more conservative candidates, and structural advantages allow
Republicans to be even more conservative and still win. The fact that wealthy
suburbs are so pivotal only makes the problem worse. American political
institutions hinge on a key swing voter who is both a little more conservative
and a little more affluent than the average voter. It’s up for debate just how
conservative that key voter actually is, but what’s clear is that the current
system dictates the kind of fights the party is having, and gives those who
want to pull the party to the right more leverage than they’d otherwise have.
For the moment, Democratic voters, however much they want
left-leaning candidates, might be stuck with cautious moderation. Their leaders
don’t yet seem ready to gamble on candidates with more liberal economic
stances. But if Democrats do take Congress, they should use their power to
implement a fairer system that treats all voters equally, regardless of where
they live.
Most advanced democracies have some form of proportional
representation, but few started out with it. America’s current antiquated
electoral system was imported from the British countryside more than 200 years
ago, applied unthinkingly by colonists who didn’t have the benefit of knowing about
modern, fairer voting systems. The Framers did, however, give Congress the
power to determine how states elect their representatives. And there are models
for reform. The Single Transferable Vote (STV), for example, a form of
proportional representation that has been used successfully in Ireland for
almost 100 years, doesn’t have any single-member districts. Each district has
between three and five representatives. During an election, voters rank
candidates in order of preference. If one candidate is the overwhelming choice
in a particular district, some of her “overhang” votes are then redistributed
to second-choice candidates. Candidates are eliminated from the bottom up. The
top three to five are elected. The result is that all districts are competitive,
and therefore all voters matter equally. No party could take an unfair
geographic advantage.
Admittedly, such significant electoral reform is a long shot
in the United States. But it’s not impossible. In Maine, voters this year
reaffirmed their 2016 choice to implement statewide ranked-choice voting, a
variant of STV. That made Maine the first state in the nation to abandon the
old system.
If applied nationally, such a change would effectively
create a multiparty system in which left-wing politicians could run as
left-wing politicians without needing the blessing of Democratic Party. For
now, however, the only way to make districts like VA-10 obsolete is to win
them.
Sunday, October 7, 2018
The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court
The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court
Marty Lederman
Saturday, October 06, 2018
On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents. I had just turned eight years old. I’m now almost 58. And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats. That’s right: By the time the Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control.
The appointment of Merrick Garland should have brought an end to that extraordinary streak. Retaining control of the Court, however, has become an article of Republican faith--hardly surprising when it's become a bulwark of theirs, a virtual background assumption, for fully half a century. And now, thanks to Mitch McConnell's deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years (or perhaps even longer) until we see another Democratic majority. A full century of Republican control is not hard to imagine. (And how’s this for a (related) factoid?: In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.)
It would be one thing, of course, if the Presidency and the Senate had been Republican-dominated for all of my adult life: In that case, such GOP dominance of the Court over many generations might be alarming (and frustrating), but would hardly be surprising. But Democratic Presidents have served five terms since 1969, and have won a majority or plurality of the popular vote in seven of the twelve elections in that period--including in six of the past seven elections. Democrats have also secured a majority of the Senate in more than half of the 25 Congresses since Fortas's resignation—including at least a couple of huge majorities. Yet nevertheless, the Court has remained, and will continue to remain, in GOP control for decades on end.
This stark contrast between electoral and judicial ratios is especially pronounced today. When Justice Kavanaugh takes the bench he will solidify a very strong, and unusually cohesive, five-Justice Republican majority, only one member of which (Justice Thomas) was appointed by a Republican President who entered office with a majority or plurality of the popular vote. Indeed, in that 27-year span, which covers the entire tenure of all of the current Justices, a Republican President has won the popular vote in just one election (2004, of course, which resulted in the Roberts and Alito appointments).
Moreover, two key Justices in this robust majority, Gorsuch and Kavanaugh, not only were appointed by a President who received almost three million votes fewer than his Democratic opponent--and who continued to have historically low disapproval ratings when he made the appointments--but their nominations were actually rejected by Senators representing strong majorities of the nation’s population. The Senators who confirmed Gorsuch, for example, represented states in which only 47 percent of Americans lived (based on the 2017 estimates, and splitting the population totals for the nine states (CO, FL, ME, MO, MT, NV, OH, PA, WI) in which the two Senators split their votes). The gap on Kavanaugh’s vote is even greater: Using estimated 2018 population figures—and not even counting the millions of Americans in the territories, including Puerto Rico—my rough calculation is that Kavanaugh was confirmed by the votes of Senators representing only 44 percent or so of the nation’s population (once again, splitting equally the population totals for the 13 states (AL, AK, CO, FL, IN, ME, MO, MT, ND, NV, OH, PA, WI) in which the two Senators split their votes) [I'm counting Sen. Daines as a "yes" vote and Sen. Murkowski as a "no."]
What’s more, because of our increasing partisan polarization and the corresponding battle lines that have been drawn in terms of jurisprudence, the solid conservative majority on the new Court will—perhaps for decades to come—be much more homogenous on the vast majority of closely contested and important questions than the pre-Roberts Court ever was. (After all, Justices Brennan and Souter were more liberal than the Presidents who appointed them, and Justices O'Connor and Kennedy occasionally voted with the "left" wing of the Court on a handful of high-profile issues, including abortion and gay rights.)
Of course the future is unwritten, and no one can say for certain. Even so, it's fairly safe to assume that the new Court will be far more aggressively conservative than any in (at least) the past 80 years.
And then there are the many cases the Court majority will likely decide, invoking several different constitutional provisions and doctrines--the Free Speech Clause (especially); perhaps the Property and Contract Clauses; extra-textual federalism limits; limiting constructions of Congress’s post-Civil War enforcement powers; perhaps the Free Exercise Clause (and certainly RFRA); etc.—to narrow the scope of constitutionally permissible initiatives if and when the Democrats ever do again obtain majorities in the political branches.
The new five-Justice majority is also likely to dramatically enhance executive authority, in both foreign and domestic affairs, including by, inter alia, endorsing “unitary executive” theories (rejected by all but one of the Justices on even the Rehnquist Court) and statutory interpretations (see, e.g., the SG's aggressive brief in Lucia) that will constrict agency independence; perhaps re-asserting a more robust nondelegation doctrine; discounting the role of international law in construing the President’s war powers (see Justice Kavanaugh’s remarkable opinion in al Bihani, discussed here); applying extraordinary deference to the President in areas of foreign affairs, national security and immigration, even in cases (e.g., Trump v. Hawaii) where the presidential rationales are transparently pretextual.
In all of these ways, the Court will (probably) strengthen the ability of the Republican Party to entrench electoral power, and place obstacles in the way of future Democratic Presidents and legislatures to accomplish their desired substantive ends, despite the fact that the nation’s demographics and its electorate appear to be heading inexorably in the opposite direction.
[An aside, to anticipate the inevitable pushback: No, I am not asserting that these five Justices will, more than others, decide cases on purely “partisan” grounds (e.g., by asking themselves “Will it Benefit the GOP?”). That overly simplistic account is (mostly) not the way these things work. Indeed, I agree with Justice Kagan that the Justices' votes are not "simply an extension of the terribly polarized political process." I assume they sincerely believe that their decisions do, in an important sense, reflect the better view of the law as they see it, at least in most cases (but perhaps not all—see, e.g., Janus). Like most of us, however—and certainly like, say, the FDR appointees who dominated the Court beginning in 1937—their views of how the nation is best governed powerfully influence their views of how the Constitution and laws are best understood. And, as it happens, there’s a stark contrast between the two parties these days on most important questions of governance, with virtually no overlap (i.e., the most conservative Democrat is not as conservative as the most liberal Republican, etc.). Moreover—and here’s the important point—the Presidents and Senates who choose Supreme Court Justices can now be very confident about which jurists share their views about how the nation should be governed (by which I mean much more than “which party should win elections?”) and, more specifically, about how the Constitution and laws ought to be interpreted . . . and they choose their nominees accordingly. Although I know others might differ on this score, I don’t think there’s anything necessarily unprincipled or nefarious about this—it’s simply that it’s become much easier for prevailing actors in the political branches to guarantee that the Justices they choose will share their own principles, especially about how best to interpret the law.]
The remarkable thing about this imminent conservative dominance on the Court is that, unlike the post-New-Deal Court, the new majority will likely accomplish all of this, and more, despite the absence of any sustained partisan electoral dominance by their party--indeed, in the midst of a long stretch in which we have, at most, a so-called “50/50 nation.” (And that’s being generous to the GOP.)
Don’t get me wrong: I am most surely not saying that the Court ought to abjure its important countermajoritarian function, let alone “follow th’ iliction returns.” I’m simply pointing out that there’s been an extraordinarily stark and prolonged mismatch between (on the one hand) Democrats’ political power and the embrace of Democratic positions by strong majorities of the nation, and (on the other hand) Republican dominance on the Court—leading to a possible forthcoming ultra-conservative era of jurisprudence. And that there’s a strong--and not coincidental--symbiosis between the Republicans’ long-term, successful efforts to shape the Court and the ability of the GOP to secure success in the political arena beyond what its popular support would naturally produce: the entrenchments are mutually reinforcing.
Of course, whether and to what extent you think this is a serious problem (a vicious circle, of sorts) likely depends on where you sit. Feature/bug and all that.
* * * *
If I’m right about all this, it naturally raises two other important questions: What are the causes of the phenomenon, of the radical disjuncture, and what (if anything) can and should we do about it?
As for the former, I don’t have anything especially incisive to add to what you probably already know. I assume that the perpetual entrenchment is the result of the confluence of a whole host of things—a witch’s brew that includes at least the following:
-- The indefensibly unrepresentative Senate, of course—something that (technically) could only be remedied by a constitutional revolution of sorts.
-- The related, and also indefensible, method of choosing the President based upon electoral votes, especially given that the electoral college itself is unjustly skewed by the “equal number of Senators” problem. (This could be remedied by an interstate compact or constitutional amendment, but if there’s no powerful impulse among the electorate to make such changes now, even after 2000 and 2016, I doubt there ever will be.)
-- The fact that state legislatures are in charge of drawing federal districts and that they do so on the basis of baldly partisan considerations that are widely understood to be flatly impermissible in countless other constitutional contexts.
[These first three causes are, of course, serious defects in the Constitution itself—provisions that would never be adopted today if anyone were sitting down to draft a constitution for such a modern, complex state, but that easily withstand any changes because of steadfast resistance from countless officials and interests who benefit from well-established institutional “settlements.”]
-- The decisions of some Justices not to retire while Democrats are in the White House.
-- Numerous aspects of the Court’s own jurisprudence, often (but not always) by 5-4 votes (see the cases listed above).
-- Asymmetric Constitutional Hardball in which the Democrats have been, well, the political equivalent of the Washington Generals
-- Geographic segmentation. See this acute observation from Mike Dorf (with his permission): “For my money, both the baked-in countermajoritarian features of our system (especially the Senate) and the contingent ones (especially partisan gerrymandering in the House) do the damage they do chiefly because of the socio-political context in which we live. We happen to have the bad luck to live in a country in which the geographic distribution of social conservatives, racists, and tolerators of racism gives them disproportionate political power. Worse, the institutional structures we have also give those people an effective veto over changing that disproportionate power.”
-- Perhaps Putin, and those in his employ and in his thrall, although I haven’t yet seen conclusive evidence that the Russian efforts (unlike, say, Comey’s indefensible actions) changed the outcome of the election.
-- Plain ol’ dumb, bad luck, sometimes taking the form of bad institutional design.
I’ll leave it to others to assess the relative importance of these and other sources of the “State of the Court” (and the Nation).
Suffice it for me to offer but one prediction in this regard: When our grandchildren look back fifty years from now, in 2068, they might well find that the three individuals who have had the greatest impact on the development of American law, including constitutional law, over the course of the Twenty-first Century, will turn out to have been Mitch McConnell, Jim Comey and Theresa LePore.
Finally, as for the all-important “So what can we do about it now?” question . . . well, my guess is as good as yours (at best!). I hope my fellow bloggers, here at Balkinization and elsewhere, will weigh in with some (modestly) hopeful speculations for the future. For starters, check out the "Way Forward" section of Jack's latest post.
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