* The United States has been turned into a “safe space” for a permanent ruling class, what David Sirota calls “the accountability-free zone”.
* Kavanaugh has been installed as a sentinel to protect that zone, from a lifetime perch on America’s very own star chamber, the U.S. Supreme Court. Rule of law? Democracy? Emasculated.
* You could write off this last month as an anomaly – but, no. It is the norm, not the exception. And the main stream media and journalistic network outlets we normally rely on are powerless.
8 October 2018 (Rome, Italy) — Over the weekend we had a riveting discussion … “we” being my colleagues at the International Bar Association annual meeting that started with a few dinners last night … and “that Kavanaugh thing” was a good part of the conversation. Some thoughts and reflections:
Conservatives don’t like to talk about it squarely but the goal of the conservative legal movement is to enact a drastic rollback or environmental, labor, and financial regulation that would be far too politically toxic to enact via legislation. Yes, Kavanaugh will be numerically one-ninth of the Supreme Court. But he’ll draw a vastly disproportionate share of attention and speculation, controversy and criticism.
As the conventional wisdom goes, he will provide the decisive vote tipping the justices to the conservative side, effectively making this the “Kavanaugh Court”. But as I explain below, this Court was “tipped” conservative way before Kavanaugh.
Yes: abortion, affirmative action, campaign finance, gay rights — all those are going to go in a very different direction because Anthony Kennedy is gone and Brett Kavanaugh will be there. And don’t expect the 5-4 decisions by the Kavanaugh Court to be humble, meek, narrow. I expect far-reaching, sweeping decisions. I think they’ll set out to harpoon a bunch of white whales — unions, voting rights, economic regulation. The aim? To rub salt into an open sore. People are going to raise their fist and growl: “Kavanaugh!'” And abortion rights? That’s the political hot potato. I do not see an outright overturning of Roe v. Wade. It’s not necessary. It can be accomplished through narrower rulings that fail to find any “undue burden” in draconian restrictions that in practice make abortion unavailable. The same way equal protection of voting rights have been eroded in red states through ever more insidiously designed voter suppression laws and gerrymandering. The Supreme Court will make it clear that it will not intervene to curb such measures. I mean, gosh: in the Shelby County v. Holder decision the five conservative justices arbitrarily decided that racially motivated voter suppression was no longer a problem.
Why does it matter? Because both sides made it clear that they plan to keep Kavanaugh in the news for political purposes, deepening and prolonging the most divisive new issue of the Trump era. Trump was ecstatic over the weekend, very fired up and happy, aides say. Trump has been briefed on the polling impact — on his own approval rating, and on the “Brett bounce” that is closing the “enthusiasm gap” between Republicans and Democrats for midterms, now less than 30 days from now.
So look for Trump to trumpet the win and continue to brag about the Kavanaugh confirmation, as he continues to do about Justice Neil Gorsuch. It feels like the same narrative of what was going on in 2016. Although the reality is probably more mixed. The threat of Democrats impeaching Kavanuagh (rife all weekend by the Democrats themselves, and very stupid) creates the all-important “fear of a loss” needed among Republican voters to keep them supercharged for the next five weeks. Kavanaugh is rocket fuel to Republican voters.
And before I move on, just a brief note on the “accountability free-zone”, a term used by many but the focus in a forthcoming book by David Sirota. Quoting from his introduction:
When former Enron CEO Jeffrey Skilling was released from prison in the fall of 2018, the news conjured memories of a corporate scandal that now seems almost quaint – and it was also a reminder that Enron executives were among the last politically connected criminals to face any serious consequences for institutionalized fraud.
Since Skilling’s conviction 12 years ago, our society has been fundamentally altered by a powerful political movement whose goal is not merely another court seat, tax cut or election victory. This movement’s objective is far more revolutionary: the creation of an accountability-free zone for an ennobled aristocracy, even as the rest of the population is treated to law-and-order rhetoric and painfully punitive policy.
Let’s remember that in less than two decades, America has experienced the Iraq war, the financial crisis, intensifying economic stratification, an opioid plague, persistent gender and racial inequality and now seemingly unending climate change-intensified disasters. While the victims … all average citizens … have been ravaged by these crime sprees, crises and calamities, the perpetrators have largely avoided arrest, inquisition, incarceration, resignation, public shaming and ruined careers.
That is because the United States has been turned into a safe space for a permanent ruling class. Inside the rarefied refuge, the key players who created this era’s catastrophes and who embody the most pernicious pathologies have not just eschewed punishment – many of them have actually maintained or even increased their social, financial and political status. The effort to construct this elite haven has tied together so many seemingly disparate news events, suggesting that there is a method in the madness.
He goes on to describe John McCain’s funeral – a memorial billed as “an apolitical celebration of the Arizona lawmaker”, but which served as a made-for-TV spectacle letting America know that everyone who engineered the Iraq war is doing just fine. The event was attended by Iraq War proponents of both parties, from Dick Cheney to Lindsey Graham to Hillary Clinton. The funeral featured the resurrection of George W Bush … the codpiece-flaunting war president who piloted America into the cataclysm with “bring ‘em on” bravado, “shock and awe” bloodlust and “uranium from Africa” dishonesty … suddenly portrayed as an icon of warmth and civility when he passed a lozenge to Michelle Obama.
Ah, the scene was depicted not as the gathering of a rogues gallery fit for a war crimes tribunal, but as a venerable bipartisan reunion evoking “nostalgia for the supposed halcyon days – and Bush promptly used his newly revived image to campaign for Republican congressional candidates and lobby for Kavanaugh’s appointment”. The Bush-Kavanaugh relationship goes way back.
The underlying message was clear: nobody other than the dead, the injured and the taxpayer will face any real penalty for the Iraq debacle.
“Kavanaugh will delegitimize the Court!” Nope. That’s already been done.
Many American lawyers … and perhaps even regular American citizens … are sad that people have lost confidence in the judiciary. But what has happened is not so much that the court has become politicized but that society has. We have been pummeled with the media fallacy that everything Republicans did to help Kavanaugh’s nomination “worked” and everything the Democrats did “failed.” I’m sure it had nothing to do with a GOP president sending a conservative nominee to a GOP Senate. For the past 25 years, the judiciary has moved increasingly further right and the Supreme Court has tossed out duly enacted legislation, opened the floodgates to public corruption, and undermined substantive democracy. The public has largely missed this bigger picture because the American progressive movement has focused attention on the role of Court in protecting abortion rights. The Supreme Court has spent the better part of 20 years chipping away at American democracy.
The Supreme Court Justices have become mere junior varsity political players. Case in point? Kavanaugh’s handlers readily admitted he was “too emotional” in that Senate testimony, and he faced even more severe criticism over whether he lacked the temperament and independence required for a seat on America’s highest bench. So a statement was called for. Writing in an Op Ed in the Wall Street Journal, Kavanaugh argued that his testimony “reflected my overwhelming frustration at being wrongly accused. I was very emotional last Thursday. I know that my tone was sharp, and I said a few things I should not have said”. He then went on address concerns that his nakedly partisan display to say “the supreme court must never be viewed as a partisan institution”.
The timing of Kavanaugh’s article was no coincidence. But not lost on anybody was that rather than release an open statement, his choice of outlet was the Wall Street Journal, owned by Rupert Murdoch, who frequently supports Donald Trump’s agenda. And Kavanaugh had just recently also defended himself on the Murdoch-owned Fox News. As scores of commentators noted, his choice of media outlets screamed total lack of independence and impartiality, a total lack of judicial temperament.
For those of us that like numbers, one of the most fascinating articles or papers published in the past few months was by Kevin McMahon of Trinity College, a paper entitled “Will the Supreme Court Still ‘Seldom Stray Very Far’?: Regime Politics in a Polarized America” (click here). It is a very long read so let me try and give it some justice and pull out the most interesting (to me) morsels:
- In the entire history of the court, exactly one justice (prior to Kavanaugh) has been nominated by a president who didn’t win the popular vote and was confirmed by a majority of senators who collectively won fewer votes in their last election than did the senators who voted against that justice’s confirmation. Yes, you might feel obligated to leapfrog back to the 19th century.
- Not that far. The answer is Neil Gorsuch. Donald Trump won just under 46 percent of the popular vote and 2.8 million fewer votes than Hillary Clinton. And Judge Gorsuch was confirmed by a vote of 54-45. According to McMahon, the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.
- And the Brett Kavanaugh confirmation fell along similar lines, meaning we now have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.
- There is more. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them. They are Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.
- And, gentle reader, ponder this. If fate were to hand Trump one more opportunity to put a justice on the court before 2021, it would almost certainly again be a bitterly contested and a close vote, and it would probably leave us with a majority of Supreme Court justices, five, who were confirmed by senators who received a minority share of the vote. Yes, it might be contingent on the upcoming mid-term elections but my view: there will be no change of control in the House or Senate.
- Oh, and since you asked? This sort of thing has never happened with nominees advanced by Democratic presidents. First, no Democratic president has ever taken office after losing the popular vote. And second, justices nominated by Democrats have never been confirmed by such narrow margins. Of the four liberals currently on the court, all received 63 votes or more, from senators winning and representing clear majorities of their voters.
This is big stuff. Because the court, as Professor McMahon notes in his analysis, was intended never to stray far from the mainstream of American political life. The fact that justices represented that mainstream and were normally confirmed by lopsided votes gave the court’s decisions their legitimacy. It’s also why past chief justices worked to avoid 5-4 decisions on controversial matters: They wanted Americans to see that the court was unified when it laid down a major new precedent.
NOTE: related to this, most of you have seen the “Politico” numbers. Republicans begin with a systemic advantage in electing senators and representatives, because the Democratic Party’s constituency has become heavily concentrated in big states and big cities. By their calculation every currently serving Democratic senator represents roughly 3.65 million people; every Republican roughly 2.51 million. Put another way, the fifty senators from the twenty-five least populous states — twenty-nine of them Republicans — represent just over 16 percent of the American population, and thirty-four Republican senators represent states with a total of 21 percent of the American population.
And as Christoper Browning notes (more on him below) in the five presidential elections of the twenty-first century, Democrats have won the popular vote four times. Two of these four (2000 and 2016) nonetheless produced Republican presidents, since the Electoral College reflects the same weighting toward small, more often Republican states as the Senate. Given the Supreme Court’s undermining of central provisions of the Voting Rights Act (Shelby County v. Holder), its refusal to take up current flagrant gerrymandering cases (Gill v. Whitford for Wisconsin; Benisek v. Lamone for Maryland), and its recent approval of the Ohio law purging its voting rolls (Husted v. Randolph Institute), it must be assumed that the Court will in the future open the floodgates for even more egregious gerrymandering and voter suppression.
Michael Tomasky, the editor of the website Democracy (a brilliant website that looks at every angle of a subject matter) jumped into the McMahon study and said:
So now, in an age of 5-4 partisan decisions, we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.
How has this happened? Conservatives would look at the numbers presented and say: “Look, this shows that our side is more reasonable than the other side. Republicans vote for nominees they don’t like in greater numbers than Democrats do. We’re the civil ones.”
The real explanation, of course, is quite different. Bill Clinton and Barack Obama did not nominate jurists who had left paper trails of judicial extremism or dropped other hints that their jurisprudence would be radical.
Republican presidents have. None more so than Mr. Trump, who seems to have outsourced the judicial-selection process to right-wing groups like the Federalist Society and the Heritage Foundation and twice nominated judges with an eye cast largely toward how happy they would make conservative evangelicals.
So in the end the Republicans are doing to the Supreme Court what they have already accomplished in Congress. There, through aggressive gerrymandering, they’ve muscled their way to a majority even as their candidates have sometimes received collectively fewer votes than Democrats. We have seen congressional Republicans so utterly eviscerate the Internal Revenue Service’s budget that “there may never be a better time to be a tax cheat”, according to a recent ProPublica report. We have seen no consequences for a pharmaceutical company that made big moneyoff peddling opioids – and, in fact, now we see the same company turn the crisis into another prospective profit opportunity by patenting a treatment to help wean people off opioids.
And now they’re doing it to the court, by breaking the rules (Merrick Garland) and advancing nominees who are confirmed by legislators representing minority support.
Because as Christopher Browning, in his essay last week The Suffocation of Democracy, noted:
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.
Whatever secret reservations McConnell and other traditional Republican leaders have about Trump’s character, governing style, and possible criminality, they openly rejoice in the payoff they have received from their alliance with him and his base: huge tax cuts for the wealthy, financial and environmental deregulation, the elevation of two conservative Supreme Court justices (so far) and a host of other conservative judicial appointments, and a significant reduction in government-sponsored health care (though not yet the total abolition of Obamacare they hope for). McConnell and the Republicans have prided themselves on the early returns on their investment in Trump.
For two years, McConnell has been carefully and purposefully breaking the Senate. There is no comity or tradition left. It’s just about power politics.
You say journalism will save us? Don’t hold your breath.
Over the weekend the New York Times led with this story:
Well, sure. If you grind respect for the Supreme Court into dust, complete its transformation into a purely partisan institution, and polarize the country anew to get your guy in there, then you have “won,” had a great week, according to the savvy press. Jesus.
Ok. If one proffered an answer that “hard-hitting journalism” will help there is no doubt that righteous media vigilantes such as Ronan Farrow have occasionally sparked some much-needed paroxysms of accountability. However, for every investigative reporter doing the hard work to break open a much-needed story of corruption and criminality, there is an entire machine that continues to provide platforms to those who are firmly ensconced in the accountability-free zone.
As a journalist, I hate it. I have the President of the United States … in fact his whole party … leading a hate movement against journalism, and with his core supporters it is succeeding. They reject the product on principle. Their leading source of information about Trump is Trump, which means an authoritarian news system is for them up and running. Before journalists log on in the morning, one third of their potential public is gone. No one knows what to do about it.
And total control of the press and other media is likewise unnecessary, since a flood of managed and fake news so pollutes the flow of information (look at their success in creating “Baby Breitbarts”, a growing trend of opaque, locally focused, ideological outlets, dressed up as traditional newspapers with names and layouts designed to echo those of nonpartisan publications) that facts and truth become irrelevant as shapers of public opinion. Throw in a little demonization of the press and … voila! You’ve won.
Trump gone is not going to solve anything. The racial division, cultural conflict, and political polarization Trump has encouraged and intensified will be difficult to heal. Gerrymandering, voter suppression, and uncontrolled campaign spending will continue to result in elections skewed in an unrepresentative and undemocratic direction.
Browning, in the essay I noted above The Suffocation of Democracy, said:
Upon his appointment as chancellor, Hitler immediately created a new Ministry of People’s Enlightenment and Propaganda under Joseph Goebbels, who remained one of his closest political advisers. In Trump’s presidency, those functions have effectively been privatized in the form of Fox News and Sean Hannity. Fox faithfully trumpets the “alternative facts” of the Trump version of events, and in turn Trump frequently finds inspiration for his tweets and fantasy-filled statements from his daily monitoring of Fox commentators and his late-night phone calls with Hannity. The result is the creation of a “Trump bubble” for his base to inhabit that is unrecognizable to viewers of PBS, CNN, and MSNBC and readers of The Washington Post and The New York Times.
Browning, a specialist in the areas of the Holocaust, Nazi Germany, and world war-era Europe, isn’t arguing that Trump is a modern Adolf Hitler or that Trumpism is akin to Nazism. But he does argue that certain stress fractures in the society and the international order appear to be re-emerging and that these patterns portend troubling trends for the United States and the rest of the world.
Worse, the fake news merchants are a step ahead, thanks to techniques that allow them to mask their location, masquerade as local activists and purchase political ads in countries’ local currencies to dodge rules against foreign influence. The policymakers have their heads back in 2016.
The new tricks, which also include a shift to photo-based disinformation and use of internet messaging services like WhatsApp, are designed to defeat our outdated definition of what constitutes fake news — foreign-bought, easily identifiable and blatantly false.
And the U.S. makes it so easy. There are companies like the Stripe Atlas platform, designed to help entrepreneurs start a business from absolutely anywhere on the planet. This platform allows companies from the Gaza Strip to Russia to China incorporate as a U.S. company in Delaware – a state with such business-friendly courts, tax system, laws and policies that 60% of Fortune 500 companies including the Bank of America, Google and Coca-Cola are incorporated there for just $500. Wow: wouldn’t it be great if Delaware would also reform itself so that you could trace ownership of businesses registered there? Bring dirty money to account? Nah. Delaware is making too much money.
The solution? A very long shot
The elections of 2018 and 2020 will be THE tests of how far the U.S. electoral system has deteriorated. The combination of Trump’s abasement before Putin in Helsinki, the shameful separation of families at the border in complete disregard of U.S. asylum law (to say nothing of basic humanitarian principles and the GOP’s relentless claim to be the defender of “family values”), the looming effects of ecological disaster due to human-caused climate change which Trump not only denies but is doing so much to accelerate, plus Michael Cohen’s implication of Trump in criminal violations of campaign finance laws … none of that has shaken the fealty of the Republican old guard one bit, so there is little indication that even an explosive and incriminating report from Special Counsel Robert Mueller will rupture that alliance.
But a few things are clear. The Republican Party feels no need to serve any civil obligations, only to pursue its own ideological objectives. Until the Democrats (all Republican opponents) view this as an all-out cultural war and mobilize their troops, they will continue to lose. The lesson of the Trump era? Republicans will pay no political price for the shattering of rules or norms, or for disregarding common decency, because the Democrats are unwilling or unable to extract one. As long as this is the case, Republicans have no reason to respect any of those things.
And that unique mix of individual rights and popular rule that has long characterized the U.S. (in fact, most Western countries) is decomposing at warp speed. Yeah, we’re still a “shining city on a hill” … but it’s one bloody hill.
And, yes. I am fully realistic about America’s violent racial and social past. There is a strange comfort in recognizing that for all Trump’s illiberal antics, it was the very architecture of American politics, not just the president, that was deeply illiberal and undemocratic in living memory. Sarah Song, a UC Berkeley political theorist who focuses on issues of American citizenship, noted in an article over the summer: “This idea that we have achieved liberal democracy and Trump is taking us back from this achievement is inaccurate. Illiberal strands have been with us all along, and Trump is able to tap into those”.
But it would be dangerous to take too much comfort from saying we have successfully navigated previous eras of strife and uneven progress. We have entered a turbulent period in our politics. In one of my reads this summer, Political Tribes by Yale Law professor Amy Chua, she puts the danger quite crisply:
We find ourselves in an unprecedented moment of pervasive tribal anxiety. For two hundred years, whites in America represented an undisputed politically, economically, and culturally dominant majority. When a political tribe is so overwhelmingly dominant, it can persecute with impunity, but it can also be more generous. It can afford to be more universalist, more enlightened, more inclusive, like the WASP elites of the 1960s who opened up the Ivy League colleges to more Jews, blacks, and other minorities — in part because it seemed like the right thing to do.
Today, no group in America feels comfortably dominant. These feeling are being fanned by all manner of social media and technology. And they are feelings, not intellect. Every group feels attacked, pitted against other groups not just for jobs and spoils but for the right to define the nation’s identity. In these conditions, democracy devolves into zero-sum group competition — pure political tribalism.
If … if … the Republicans are to pay a price at all it will be only because the American electorate has had enough. There is no easy way forward, there are no shortcuts. And as I indicted above, it will be most difficult because the political structure now works against change. With gerrymandering and voter suppression enhancing even more the systemic Republican advantage, it is estimated that the Democrats will have to win by 7 to 11 points (a margin only obtainable in rare “wave” elections) in the 2018 elections to achieve even the narrowest of majorities in the House of Representatives.
Because if the Democrats, and the independents and the fed-up Republicans fail then the guardrails of democracy against authoritarian encroachment are gone and illiberalism ascendant.