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."

Fox News@FoxNewsFox News Poll: 56% say @POTUS is tearing the country apart.

August 31 2017

402 Retweets768 Likes

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.  

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Thanks for reading! Send me feedback at judd@popular.info.

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.

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.  

The new majority will likely take significant steps, for instance, to sanction further Republican-enacted limits on the franchise; to bless efforts that skew the electoral system strongly in favor of Republican majorities; and to invalidate laws of other kinds (campaign finance regulations; agency fees; affirmative action initiatives; etc.) that tend, on the whole, to strengthen Democratic constituencies.  In other words, we should expect to see plenty more decisions to add to an already imposing list that includes, e.g., Bush v. Gore; Crawford/Husted; Gill/Benisek, et al.; Citizens United/WRtL (and other campaign finance cases); Shelby County; Parents Involved; Janus; Epic/Concepcion, et al.; etc. 

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.

Posted 4:31 PM by Marty Lederman [link]