It's Serious, Important, and Interesting, But It's Still Funny

by Neil H. Buchanan

The big political story of 2015 was the unexpected emergence -- and even more unexpected staying power -- of Donald Trump as a presidential candidate.  For most of the summer and early autumn, I chose to write nothing about his candidacy, in part because the absurdity of it all made serious commentary seem pointless, while sarcastic commentary would have been redundant.  As the story grew, however, it became all but impossible not to say something about the emptiness of Trump's assertions, the lack of any details in the few policy positions that he announced, the ugliness of his rhetoric, and so on.

As the year ended, I used three Dorf on Law posts (here, here, and here), as well as my most recent Verdict column, to assess an emerging discussion among politicians and pundits about whether Trump could destroy the Republican party in 2016 (and perhaps permanently).  In those pieces, I did not actually discuss Trump's assertions in any detail, but I certainly made clear my negative views about his candidacy.  In response to the second of those Dorf on Law posts, Professor Dorf received a misdirected piece of angry email that was intended for me, titled "MY ANSWER TO THE COMPLAINT."  (Yes, of course it was in all caps.)  Here is the email in its unedited entirety:

As a Lawyer you should know nothing pleases the Law more then brevity. You prolixity is your quicksand. A bore is a person who will not come to the point. A greater bore is a person who continues to talk after he has made his point.

Counselor! Stop! I got the point! I do not mean to be unkind but I have read enough of your contributions to know somewhere half-way though reading you become a great bore. I'd hate to have to read your briefs.

I take it you're a nice intelligent guy. I am sad to read of the misery you feel will befall you if Trump is elected, as he will, and for good reason. The reason is voters are not excited about Trump as Trump but they feel in their gut they cannot endure another 4 years of anything like Obama's " God Damm America" race-obsessed presidency and Trump , and only Trump, is the guy to "Make America Great" again.

I'm not as smart as all you Democrat-Socialist minded guys trying to sabotage or bad mouth Trump hoping the voters will imitate the words you talk about because you're so smart they too will sound smart. You guys are just too smart for your own good.

I will vote to hire Trump. I know in my gut I'm right. I can tell you why in thousands words but let me say here very simply: I want him to be another Chainsaw Al Dunlap in arresting the growth of the Federal Government. Period! I know we have a million problems, I can talk for an hour without interruption on all of them without becoming a bore but the first problem we need to take care of for the economic health and welfare of this country -- and yours --is the national debt. You're an idiot--just because you cannot and the government can print money to avoid bankruptcy you think you can continue to spend over cost -- don't bet your life on it. It will take a chainsaw guy to cut down spending by increasing taxes on the wealthy and reduce spending on the poor --sorry about that --and we must or we're another Greece.

Citizen Dorf, you have a choice. The President and Congress will be just about the same as we have had it for the past 8 years of gross stupidity if anyone else is elected. It's no longer a question of Party which you have explained is as easily changed as the next Supreme Court opinion on Race. The only way to change things is to hire Trump--with all his faults - you get the bitter with the sweet - but he's your man to do the job. You wait for the "perfect" politician to come along and you will lose out. Take him up on the deal he's making you. Give him the chainsaw and tell him to go to work! It will take all of 4 years. Then you can hire a man of your dreams.

Even though I obviously disagree with nearly everything in that email, I am not reproducing it here to mock it.  Instead, I find it fascinating, and I think that the writer of that email would be pleased to know that my bottom line is this: I could easily believe that the email was written by Trump himself, rather than by one of his acolytes.

Think about the cornucopia of everything that is Trump on display in that email.  The insults.  (I am described as "a great bore" and "an idiot."  The writer might as well have called me "low energy.")  The baseless bravado.  ("I am sad to read of the misery you feel will befall you if Trump is elected, as he will, and for good reason.") The stilted prose. ("You [sic] prolixity is your quicksand.")  The puffed up patriotism.  ("Citizen Dorf, you have a choice.")  The complete falsehoods masquerading as unassailable facts.  ("... just because you cannot and the government can print money to avoid bankruptcy you think you can continue to spend over cost -- don't bet your life on it. ... or we're another Greece.")  The weak attempts at charming anti-intellectualism. ("I'm not as smart as all you Democrat-Socialist minded guys.")  The tic-like references to the Trump-as-businessman pose.  ("I will vote to hire Trump."  "Take him up on the deal he's making you.")  The odd and defensive comments about race. (Note especially the description of "Obama's 'God Damm America' race-obsessed presidency." Also: "It's no longer a question of Party which you have explained is as easily changed as the next Supreme Court opinion on Race.")  Note also how the writer personalizes criticisms of Trump, turning my statements that Trump is dangerous into a reference to "the misery you feel will befall you if Trump is elected."  Befall me?

This is, in short, not merely standard-issue Republicanism, even of the more recent extreme variety.   For example, the writer wants to "increase taxes on the wealthy" (although he is "sorry" that spending on the poor will be cut, too).  Even so, the exercise is mostly about empty rhetoric and rote repetition of slogans.  ("Trump , and only Trump, is the guy to 'Make America Great' again.")

As an aside, for those readers too young to understand the reference, Al Dunlap was a takeover specialist in the 1970's, 80's, and 90's, who engineered massive accounting frauds.  (When he was finally brought down, of course, he walked away with a $100 million golden parachute.)  He was popular in some quarters for massive layoffs of employees at companies that he owned.  Time magazine in 2010 listed Dunlap among the nation's ten "most egregiously bad chief execs."  This dated reference is also consistent with what we know of the demographics of Trump's supporters.
 
In short, for those of us who have been wondering why some people support Trump, there it is.  This is still utterly puzzling, but (apparently unlike me) it is definitely not boring.

Life Tenure, The Balance of Power, and Supreme Court Vacancies

By Eric Segall

The Supreme Court will resume hearing oral arguments on January 11. During this pause in the Term's business, we Court-watchers (and criticizers) can usefully turn our attention to structural issues, like the fact that our Supreme Court Justices are the only judges in the entire world who sit on a nation’s highest court for life. Consider the longest-serving member of the current Court, Justice Scalia. He ascended to the bench before we were all using cell phones, satellite television, or the internet; and he could serve for many years to come. If Justice Scalia serves until the age at which Justice Stevens retired, he would still be hearing oral arguments and deciding cases in 2025.

There are many well-documented problems with life tenure. Over the years, we have had numerous Justices, like Marshall and Douglas, who, though once heroes, quite obviously stayed on the bench after they no longer could competently perform their responsibilities. After Douglas’ stroke, and his refusal to retire even though he could barely function, the Court, over Justice White’s vehement dissent, decided not to resolve any case where Douglas’ vote might matter. At the end of Marshall's service, he was openly confused on the bench and allegedly instructed his law clerks to vote the same way that Justice Brennan voted.

Another problem with life tenure, which has been rarely discussed, is that, unlike for Presidents, Senators, and Governors, there is no plan for replacing Justices who leave office unexpectedly other than the normal procedures of Presidential nomination and Senate confirmation. If that were to happen to any of the current Justices, especially one of the conservatives, the result might well be chaos. In this new world of increased partisan politics and rancor, and where the President is deep into his second term, it is highly unlikely that the current Republican Senate would allow the President to appoint a Justice who would drastically alter the balance of power on the Court.

The problem is that because Supreme Court appointments are for life, the stakes for every new position are so high. When there is a clear swing vote at stake, the nomination carnival is especially wild--which is how we got Justice Kennedy (the current swing vote) in the first place back before Michael Dukakis climbed into a tank and we elected our first President Bush. The Senate went through an old school originalist (Bork) and a new school pot smoker (a different Ginsburg) before settling on Justice Kennedy. A vacancy today would make that nomination debacle look like a walk in the proverbial park.

If there were a vacancy today that could not be filled because of current politics, the Justices might wait for a successor before carrying on at least some of their business (like they did with Douglas when he could not function). If they decided to take that course, however, they might be forced to wait a long time. A better solution would be an interim appointment to just serve out the now no-longer-on-the-bench Justice’s term, but that solution is blocked by the constitutional requirement of life tenure.

To be sure, the Constitution allows for a very short-term solution. A president can make a recess appointment, good until the end of the congressional term, unless the Senate confirms the recess appointee (as happened most recently with Eisenhower appointees Warren, Brennan, and Stewart). But if the Senate doesn't confirm the recess appointee, we are back to square one and, in any event, since the Supreme Court's validation of pro forma sessions in the Noel Canning case, recess appointments look like a dead letter. A more drastic solution is needed.

No doubt the Justices need their independence, but fixed eighteen year terms could accomplish that goal without judges staying on so long that they span four Presidential Administrations, three of them two-term Presidencies (Scalia and Kennedy have served during Reagan, Bush, Clinton, Bush, and Obama). Were we to abolish life tenure, a Justice who leaves office prematurely could be replaced temporarily by an interim Justice who would just finish the out the term.

If we were to amend the Constitution to join the rest of the free world and provide fixed terms or retirement ages or both for our Justices, a Supreme Court appointment would need to be the person’s last job (to fight off trying to please future employers) other than serving on the lower courts. I am pretty sure that the line of folks wanting to be a Supreme Court Justice for 18 years, instead of 38, would still be quite long.

There is one other way to mitigate the potential problem of Supreme Court vacancies. We could amend the Constitution to require that at least two-thirds of the Justices have to agree before a law is declared unconstitutional. Such a change would be helpful for many reasons, not the least of which is it would dilute the power of one single Justice or maybe a block of Justices and make the phenomenon of swing vote Justices less frequent and less important. This solution would also go a long way to returning governmental power to elected and more accountable governmental officials whose careers do not routinely span three decades.

Holiday Schedule

by Michael Dorf

Merry Christmas to DoL's Christian readers and happy new year to all. There will be a fewposts next week but we here at DoL are in holiday mode, so we won't return to our regular schedule of a post per weekday until after the new year. We have confidence that you'll find some other way to amuse yourselves during the off days.

Frozen Embryos' Lessons

by Sherry F. Colb

In my column this week, I discuss frozen embryo battles and the different rights and perspectives in play when such fights cannot be resolved by an existing contract between the parties. In this post, I want to further explore a concept that arises briefly in the column:  the symbolic significance of calling an embryo a baby or of otherwise treating an embryo as something other than a potential child or the raw materials of a child.

Such nomenclature, when referring to an embryo or zygote, erases the important biological role that women play in reproduction and treats men and women as equally involved in producing a baby. Since there is in fact, more to reproduction than the contribution of gametes, a pretense that reproduction has already occurred once an embryo or a zygote has come into existence effectively denies the significance (and, in some ways, even the existence) of the unique role that women play in reproduction, through pregnancy.

I developed this idea of the denial inherent in calling a fertilized egg a child in an article entitled "Words that Deny, Devalue, and Punish:  Judicial Responses to Fetus-Envy," ("Fetus-Envy"), published in the B.U. Law Review in 1992, when many of DOL's readers were themselves still zygotes or embryos.  The article explored ways in which rhetoric (specifically judicial rhetoric, although such rhetoric extends well beyond the judiciary) functions to make women's unique contribution to reproduction invisible, to devalue women's contribution of nurturing, and to punish women for it (by excluding fertile women from the workplace, as the company Johnson Controls did).

The context in Fetus Envy in which a court characterized frozen embryos as children was when the court performed a "best interests of the child" inquiry to determine whether the egg donor or the sperm donor should get "custody" of the children.  Because the "mother" of the embryos would do a better job of taking care of them than the "father" (sperm donor) would, the court awarded them to the woman. Awarding embryos to the woman is not necessarily a sexist move, to be sure, but the reasoning and the use of "best interests" rhetoric about an entity that still lacks interests (since embryos are not yet capable of having a state of wellbeing--they are not sentient) is brimming with denial.  Women do not provide a better home for embryos than a man; they provide the only existing environment in which the embryos can become sentient human beings, and their contribution through pregnancy involves active and painful work.

But what if someone believes that embryos are full human beings because of their religion?  I suppose that one cannot effectively rebut a religious argument because it is generally not framed in falsifiable terms.  But the notion that a zygote or embryo is already a person is an interpretive move that some humans have made.  This is how religious people can explain that the Christian and Jewish Bible contains brutal atrocities seemingly condoned by God (such as slavery, the killing of captive prisoners of war, and the treatment of a conquered enemies' virgins as the spoils of war).  People are always the ones translating religious texts, and the particular people who have done so over time have typically been men, the category of humans who might like to view their own contribution to reproduction as equal to that of women (by disappearing pregnancy).

Just to ensure (or at least attempt to ensure) that I am not misunderstood, I am not meaning to say (nor did I mean to say in Fetus Envy) that all men are guilty of fetus-envy (denial, devaluation, and punishment of "women's work").  My goal was to elucidate a psychological phenomenon that I think explains some of the rhetorical moves that judges and others make, whether or not out of a commitment to the pro-life view of zygotes.  Not all men (and not only men) deploy this sort of rhetoric, and fetus-envy does not necessarily explain every instance in which the rhetoric arises.  Not unlike religious claims, my theory is not falsifiable.  But it rings true to me (and to many of the people I consulted about it in the early '90s).  But I acknowledge that, as Freud might say, sometimes a cigar is just a cigar.

The Moderates' Last Refuge: Deny the Damage

by Neil H. Buchanan

In my Verdict column last week and in two follow-up Dorf on Law posts (here and here), I have again discussed the puzzling phenomenon of the moderate 21st-century Republican.  Pundits tell us that such beings exist.  I have friends, colleagues, and family members who claim to be examples of that species.  Yet, based on anything that I can imagine constituting a worldview that counts as politically moderate, the Republican Party in its current form offers moderates nothing to cling to, whereas the Democrats are quite obviously their natural home.

In my recent writings, I have considered a number of possibilities.  Maybe Republican moderates do not really exist, but some people falsely claim to be moderates, for self-esteem purposes.  Maybe political affiliation is such a major part of how a person sees his place in the world that many people are simply incapable of considering going over to the other side.  (Admittedly, this is difficult for me to understand on a personal level.  Not only did I switch from being a Republican to a Democrat in my teen years, but I switched from being an Ohio State fan to a Michigan fan in my twenties.  Talk about breaking deeply felt ties!)  In yesterday's post, I suggested that it is not just a matter of loyalty to a label, but that moderate Republicans are manipulated by their party's attack machine to view Democrats as not merely "the guys that I'm against" but as the very definition of evil, making defection unthinkable.

Any discussion of these topics is made especially difficult by the sloppiness with which political pundits slap the label "moderate" on nearly anyone.  In the 1990's, Dick Cheney was labeled a moderate by many pundits, apparently because he had not yet developed his scowl.  That notion, in which moderation essentially means not screaming or snarling, is still a staple of political commentary.  For example, in one of his desultory politics-as-horse-race columns on which The New York Times wastes far too much space, the reporter Nate Cohn recently wrote that Marco Rubio could defeat Donald Trump or Ted Cruz, even after losing early primaries and caucuses, because "there would still be plenty of room for a candidate who could appeal to the supporters who remain: the party’s mainstream conservative and moderate voters and elites."

Whatever one might say about the possible existence of moderate Republican voters, the notion of moderate Republican elites is risible.  Even so, as I mentioned in yesterday's post, even some true conservatives should now be seriously considering whether they can stomach the party anymore, especially if Trump or Cruz is the nominee.  At various times (e.g., here), I have mentioned conservative writer David Frum, who has publicly broken with the movement conservatives who took over his party.  Nothing that Frum has written before or since the split, however, leaves any doubt that he holds very conservative views.  Maybe there are others like Frum, in the conservative punditocracy or even among Republican officeholders, who are only moments away from bolting from the party.  Perhaps.

There is, however, one other argument that I have come across, offered by a scholar who identifies herself as a moderate Republican, but who has no intention of leaving her party.  Her basic argument goes like this: The people who have taken over the Republican Party since 1980 are buffoons with nothing good to offer the country or the world, but they do not truly represent the party.  These pretenders, especially in their recent, highly virulent form as extreme religious and nativist reactionaries, will soon run out of steam and be replaced by reasonable moderates with liberal-ish social attitudes and pro-business conservative economic views.  In other words, Republicans will soon return to being like the George Bush who ran in the 1980 primaries against Ronald Reagan.

Why, one might ask, has the influence of these people not already run its course?  Here is where the story becomes fascinating.  Supposedly, it was actually those liberal-activist judges who enabled social conservative extremism, by taking culture war issues out of the ballot box.  If, the theory continues, the moderates in the Republican Party knew that their voices and efforts were needed actually to defeat extremely conservative social policies in real elections, then the battle would be joined.  But because the courts have illegitimately taken control of social policy, social conservatives are enraged and have taken over the Republican Party.  Meanwhile, moderates in the party sit on their hands, comfortable in the knowledge that the extreme conservatives will continue to be thwarted by those judges -- whose usurpation of political decision-making is the original sin, in the eyes of the moderates, but who can now be expected to follow through on their activism.

Of course, one might reasonably ask why a Republican moderate who is truly pro-choice (to say nothing of those who are at least pro-birth control) has not noticed that the marauders who have taken control of their party have been doing everything possible to appoint judges who will endorse the culture warriors' views.  What happens when that work is completed?  Apparently, that is when the sleeping moderate giant will wake up and prevent the state legislatures and Congress from passing those bad laws in the first place, proving that we never should have needed courts to prevent extreme outcomes.

It is neat theory, in its way.  Among its many flaws, however, is how much resemblance it bears to what economists call long-run equilibrium, in which the only thing that matters is that the balance of interests reaches a stable conclusion in the end.  And the proper retort to this political version of "it will all turn out OK in the long run" is the same as Keynes's comment about the economic version of the theory: "In the long run, we are all dead."

In fact, the Keynes quote is even more apt in this context, because the range of short- and medium-run damage that is being done in the political realm even more obviously involves life-and-death matters.  Keynes, after all, could be interpreted as saying essentially, "Well, I don't want to wait that long."  I think he also was saying that the economic damage from doing nothing in response to depressions was very much about life and death, but in any event that further implication is unavoidable in the context of assessing what happens while we wait (and wait and wait) for the Republican experiment with extremism to flame out.

Even now, when Roe and Casey have not yet been overturned, consider what is happening in terms of reproductive rights.  While we wait to see whether the Supreme Court will strike down Texas's law that effectively shut down the vast majority of clinics in the state that were still willing to provide abortions, millions of women are being prevented from exercising what are still constitutionally protected rights.  States have passed 288 restrictions on abortion since 2011.  Real consequences are happening while we wait for the long run to arrive.

Meanwhile, the same extremists are moving on other fronts, and succeeding.  Funding for all manner of social welfare programs, from Head Start to infant nutrition programs, has been cut.  Voting rights are being curtailed.  The "moderate" Republican presidential candidate Marc Rubio is talking about ripping up the Iran nuclear agreement.  He and his brethren (and Carly Fiorina) are all talking about starting new wars in the Middle East.  These, and nearly every actual policy that the Republican Party now stands for, are supposedly anathema to my moderate Republican colleague and those of like minds.  Yet we are apparently not supposed to worry about the damage that is being done in the meantime, because it will all work out in the end.

Finally, consider the ultimate issue that matters in the long run.  The immoderate politicians who run the Republican Party are in full agreement that we should do nothing about climate change.  Many, of course, deny that it exists at all, or if it does, that humans are causing it.  While we wait for the moderate Republicans to mop up after the supposedly inevitable demise of their party's pretenders, the world's prospects for the long run are looking worse and worse.

In the end, I simply return to the question that I have been asking for years: What would it take?  I certainly understand all of the reasons that people offer for hesitating about changing their political views and assumptions, but it was obvious long before now that this is no mere phase in Republican politics.  Or if it is, the end of the long political tantrum is still nowhere in sight, and far too much of the damage is irreversible.

The Best Defense Is Being Offensive: The Republican Attack Machine and Moderate Voters

by Neil H. Buchanan

In my Dorf on Law post this past Friday, I renewed my occasional discussion of the puzzling relationship between self-described political moderates and the modern Republican Party.  There, building on my most recent Verdict column, I asked whether anyone who thinks of herself as a Republican moderate would ever leave the party, if she has not already done so.  There are plenty of people who have abandoned the Republicans over the years, to become either Democrats or independents, because of the hard right turn that the party has taken in the last three-plus decades.  Even so, there are people who still insist that they are not on board with the extreme conservative views that now define their party, yet who are evidently comfortable enough to stay in the Republican fold.

My conclusion in that post, a conclusion that by its nature must be tentative and subject to revision, is that even the nomination of Donald Trump might not drive those people out of the party.  The party's insiders are easy to explain, because they have too much to lose by walking away from even a fully corrupted party apparatus.  The people with nothing personal to lose are more interesting, however, because they claim to be upset by what they see in the party, but they are not so upset that they are willing to walk away.  It is those people whom I am trying to understand.

One possibility is that such people are a tiny fraction of the electorate who really do not matter as anything other than a curiosity of political anthropology.  If so, then there must be some explanation for the facts that I continually come across such people in my professional and personal lives, and that I read stories about them on a regular basis.  I am not saying that it is impossible that my own observations over-sample an isolated phenomenon.  In fact, that would have to be true for everyone on earth.  Yet personal happenstance would not explain the continued discussion of such people in press accounts of U.S. politics.  Of course, reporters also are often guilty of over-reporting events and memes that are close to home (see, for example, the coverage in The New York Times of Ivy League-related educational issues).

So maybe there just are not that many self-identified Republicans who call themselves moderates, but I happen to have met and read about those few who do exist.  Or maybe the people who call themselves Republican moderates are actually not at all moderate, but they like to think of themselves as non-extreme.  Maybe, in other words, there is nothing to explain.  Nonetheless, readers should consider this series of occasional posts as evidence of my suspicion that there is something interesting going on, even though I cannot rule out these other possibilities categorically.

It has been well documented that Republicans and Democrats are further apart on policy than they have been in decades, which again could mean that there are no true moderates.  It could, however, also mean that true moderates who feel the need to identify with a party are left with two extreme choices.  That latter explanation, however, mistakes a growing distance between the parties (that is, their becoming extremely far apart from each other) for mutual immoderation.  Given that everyone who ever actually describes what a moderate should believe inevitably describes something like Barack Obama's actual policy views, however, it is obvious that a person with genuinely moderate views -- as measured by anything other than the current relative positions of the two parties -- could easily find a comfortable home in the Democratic Party.  (One useful way to think about this is that, as many people have noted, the non-mythical Ronald Reagan would be a pariah in the current Republican Party, whereas the supposedly extreme socialist Bernie Sanders is actually simply advocating an updated version of New Deal liberalism that Franklin Delano Roosevelt would recognize and endorse.)

Which, again, brings me back to asking how people who claim to be politically moderate would stick with the Republican Party today.  In last Friday's post, I noted an exchange of letters published in The New York Times in which a self-identified Republican moderate and various readers discussed her claim that her party could still be called anything but extreme.  What I found most interesting about that writer's response was that she immediately fell back on them-versus-us mythology to demonize the Democrats.  She repeated the standard claim that Democrats are bad for capitalism, which one can believe only by ignoring the evidence, but more tellingly, she went straight to "but Hillary's awful," citing the email thing and Benghazi.

For the longest time, I had thought that the only point of the endless scandal-mongering on the right was to fire up the extreme base.  Anyone who has looked at the facts of the Benghazi story, as told after unending Republican-led witch hunts in both houses of Congress, could only conclude that there is nothing to the claims of evil-doing by the former Secretary of State.  Similarly, nothing has come of repeated attempts by Republicans to turn a long-since-corrected mistake by various IRS employees into a political scandal, yet this has not stopped Republicans from vilifying the tax collectors and slashing the IRS's budget.

Again, however, I had always thought of these overreactions to what ought to be apolitical issues as being little more than a way to keep the true believers in a froth.  What I now see is that these fake scandals also serve a purpose even with the people who would supposedly be least likely to buy into Fox News-style propaganda.  For people on the left end of the Republican spectrum, the scandal-mongering provides an excuse to say, "As bad as my guys are, I hate those other people even more."

Notably, the only person in the presidential race who polls as negatively as Donald Trump is Hillary Clinton.  This is hardly an accident.  Going back to Bill Clinton's presidency, the Republicans have been faced with the question of what to do when your opponents move in your direction.  It used to be PoliSci 101 that the parties would end up mimicking each other, because if Democrats moved to the middle, Republicans could not afford to be seen as extreme.  And Clinton's embrace of what his advisors happily called triangulation was especially challenging to Republicans, because he simply co-opted standard Republican views on economics ("Balance the budget!"), social policy ("End welfare as we know it!"), labor (embracing a decidedly union-bashing element of the party), and on and on.

What is a Republican to do when a Democrat is suddenly agreeing with all of the things that Democrats supposedly would never embrace?  Why, in other words, do Republicans not view Bill Clinton as the most Republican president that the Democrats ever elected?  It was easy to see why the party needed to vilify Clinton, from the standpoint of the true believers.  He was not willing to go along with even more extreme policies, and he reveled in his unparalleled popularity among African Americans.

But the "vast right-wing conspiracy" was not just in the business of whipping up the extreme hatred of the party's base.  It was also succeeding in creating a narrative in which people who view themselves as moderate could continue to self-identify as Republicans by focusing on what they should hate.  And they have been successfully taught that they should hate the Clintons.  For example, whenever a conservative commentator or politician appears on a left-leaning show, such as "The Nightly Show with Larry Wilmore," viewers can count on hearing something like this: "OK, I concede that Republicans should stop being so crazy about ______, but Hillary Clinton will say and do anything to get elected."

That line is not aimed at base voters.  The idea is to make people who view themselves as part of the reasonable middle feel a visceral antipathy toward the politicians who actually represent their views.  This strategy, moreover, does not require one to think that there are a large number of Republicans who think of themselves as moderates.  Rather, it merely requires that there be some people who might otherwise start to think that the Republicans have gone too far.  "I might have been on board with pro-business tax cuts, but I do not believe in starting life with an unfair advantage, so we should have a robust estate tax."  (Yes, there actually used to be, and still are, conservatives who agree with that statement.)  "I want fair elections, but there's no evidence of in-person voter fraud, so even if voter suppression helps Republicans, I think it's wrong."  "Some reporters seem too liberal to me, but I don't feel comfortable when Republican candidates respond to challenging questions by attacking the press rather than actually answering the questions."

A person, even a non-moderate true-believing conservative, could find herself thinking all of those things and concluding that the party with which she would naturally identify has become too far gone, and that the other party is actually now sitting in the middle of the road.  But yelling "Benghazi!" often enough creates the emotional space necessary to keep those people in the fold.  The politics of personal destruction is not just personal.  It is an apparently effective method of distracting enough people who might otherwise bolt.

Seriously, What Would It Take?

by Neil H. Buchanan

The increasing ugliness of the Republican presidential campaign, evident most recently in the bomb-'em-all attitude of nearly every candidate, has generated widespread discussion of whether the Republican Party could suffer significant defections if it continues on its current course.  The public soul-searching from some Republican politicians and pundits is long overdue, of course, but it is also an important moment in which we can assess whether there is anything more than fear of electoral disaster motivating their statements of supposed principle.

As frequent readers of Dorf on Law might recall, I have long been fascinated with the question of why so many people continue to stick with the Republican Party.  This is especially important because one wants to believe that most people do not share the views -- by which, to be very clear, I mean the vitriolic anger and hatred -- that the party's candidates and officeholders at all level of government have been peddling for a long time now.  This is a genuine puzzle.

This past summer, for example, I wrote a pair of Dorf on Law posts in which I discussed the fact that the shared policy positions of Republican candidates and officeholders are extremely unpopular.  In the first of those posts, I characterized Republican apostate (but genuine conservative) David Frum as saying "that one can be a good conservative without being a gay-baiting, racist, immigrant-bashing neanderthal."

In the second of those posts, I questioned whether Frum's supposition is actually correct.  I noted that there really are good people who continue to support the Republican Party, even though they are willing to remain, shall we say, neanderthal-adjacent for some reason.  Discussing such matters as whether it makes sense to be "socially progressive, but economically conservative," I concluded: "I would not call any of my conservative friends, family members, or colleagues neanderthals, and not just to be polite."  The fact is, however, that continuing to pull the lever for Republicans empowers people whose views are truly abhorrent to the values that these avowedly moderate conservatives claim to embrace.

Nor is any of this relevant merely because of the surprising emergence of Trump and Cruz as leaders in the Republican presidential race (although it is, of course, the Trump phenomenon that has finally caused many Republicans to wonder what the hell has happened to their party).  The widening disconnect between moderate Republicans and the party that they continue to support has been increasingly evident for decades.  As Paul Krugman and many others have pointed out, Trump's views on almost every issue are merely unvarnished versions of what nearly all Republicans have been saying and doing for at least a generation.

Two years ago, I wrote a Verdict column and an associated Dorf on Law post in which I asked of moderate Republicans who refuse to leave the party, "What Would It Take?"  It is understandable that people stick with a political party despite occasional disagreements, because adults recognize that no political party (even in a multi-party system) could perfectly align with one's policy preferences.  But at some point, the disconnect simply becomes so great that one expects people to start to walk away.

By the standards of the current political moment, the particular issues that I laid out in those late-2013 pieces are almost quaint.  In our current moment, in which the supposed moderate among Republican presidential candidates takes virtually no flak for having proposed allowing only Christian refugees to enter the country, the old list of stomach-churning Republican policies starts to look almost pedestrian.  Yet the pre-2015 Republican party was already all-in for cutting off food aid to poor children, denying voting rights to minorities, refusing to deal with climate change, and on and on.  What more, I wondered, would be necessary to drive self-described moderates out of the Republican fold?

In my new Verdict column, published yesterday, I tried once again to understand the thinking of people who seem so out of place in the radical right-wing party that the Republicans have so enthusiastically become.  Almost no Republican politician would dare leave the party, if for no other reason than the near impossibility of Democrats truly trusting the turncoat in a way that would make a future political career possible.  And moderate non-politicians who wish to become federal judges and so on certainly have careerist reasons to stick around.

The bigger question is those moderates who have nothing personal to gain.  They have watched their party become more and more extreme, to the point that in late 2015 what passes for a moderate Republican statesman is Senator Lindsey Graham, who attacks Trump while talking about how much he wishes George W. Bush were still president, and who is one of the most aggressive militarists in the race.  Seriously, what would it take?

Last Sunday, The New York Times tried to answer a similar question, publishing a letter from a self-identified Republican who claims that "half our number" are "quiet moderates" who are "[p]ro-choice, pro-gun-control and accepting of same-sex marriage," and whose "first priority is championing private enterprise, the engine that drives the nation, pays its bills, rewards ingenuity and creates jobs."

The Times included with that letter some responses to that Republicans' defense of her party (and her continued affiliation with it).  What was most interesting about those responses is that some responders described various ways in which no reasonable person could hold the moderate views that the writer claimed to hold and not be driven screaming from her party.  Or, as the first responder concluded: "[S]ince her views overlap nearly completely with those of President Obama and the people running to succeed him, she might consider registering as a Democrat instead."  Or, as another responder put it: "Because a majority of Republicans say they are moderates, [the original letter writer] infers that they must actually be moderate."

What I found most interesting about the letter writer's response to that series of comments (which included several sympathetic ripostes from fellow disaffected Republicans) is that she simply resorted to naked partisanship: "Democrats have no choice but to remain fiercely protective of the image of Republican as intractable crackpot, given their presidential campaign’s struggles with issues of trust, following Benghazi and the personal email server snafu."  In other words, people who have stayed with the Republican Party -- even those who claim to be moderate -- gleefully fall back on Clinton-bashing to justify not becoming Democrats.  Benghazi?  That is what self-styled moderates rely on to vilify Democrats?  Seriously?

Even more revealing are the letter writer's two further claims.  First, she says that Democrats are "too fond of expensive regulation to be trusted with the proper care of our excellent private sector," which is not only partisan tripe but is also simply false.  (Among other things, the "excellent private sector" grows more quickly and creates more jobs when Democrats are in the White House.)

But the ultimate example of blindness to reality is the claim that Democrats "can’t afford for voters to be reminded there is such a thing as a dignified and reliable Republican who cares. The primaries may blow their cover."  So, we are supposed to believe that one of the current clown-car full of Republican presidential candidates will emerge to prove that the Republicans are moderate.  Which one is pro-gun control?  Which one is pro-choice?  Which one is accepting of same-sex marriage?  Which one would nominate Supreme Court justices who would be in the mold of the old-style reasonable conservative Sandra Day O'Connor, or even the very conservative Anthony Kennedy?

The question in the title of this post is, then, ultimately beside the point.  For people who are committed to believing that the Republicans have not become an extreme right-wing party, there is always simple denial and the comforting vilification of Democrats.  The Republican Party must change or it will die, but the change will evidently not come from supposed moderates threatening to walk away.  If change comes, it will be because the party will have to replace these deluded (and aging) souls with people who will not join in the first place unless serious changes are made.