Friday, October 21, 2016

No More Debates, Ever

by Neil H. Buchanan

The pundits and the public have weighed in on the final presidential debate of 2016, and it turns out that my conclusions (which I reached after my usual self-sequestering, so that I did not know about the emerging consensus as I wrote down my thoughts) were widely shared, with some important caveats that I will discuss shortly.

Most importantly, there has been nearly universal condemnation of Donald Trump's refusal to say that he would accept the results of the vote, even if (when) he loses.  Trump's surrogates spent Thursday frantically reassuring the world that their man is not that insane, but they have had only limited success (for obvious reasons).  But in any event, it is heartening to see the fierce reaction against Trump's flirtation with insurrection.

Still, the negative commentary to a large degree has missed the importance of Trump's arguments as to why the vote will be rigged against him.  Amy Davidson in The New Yorker and William Saletan in Slate were the exceptions in noting all three of Trump's claims: voter brainwashing by the purportedly liberal media, Clinton's ineligibility to run for President because she is supposedly a criminal, and the bogus claims of voter fraud.

By only paying attention to the last of those three delusions, most commentators made it too easy for Trump's apologists to say that he was merely reserving his right to request recounts if the outcome is close, or to raise legitimate claims of voter fraud.  Because that is not at all what he said, as I argued, nothing that happens between now and Election Day will resolve his supposed concerns.

But again, it is gratifying to see nearly everyone get the big picture right, and not just on the post-election insurrection issue, but more broadly.  Clinton won big, again, while Trump melted down and became incoherent.  Clinton handled herself with grace and class, while Trump exposed himself once again as a misogynist and bigot.

With all of that in mind, I nevertheless hereby call for the end of national presidential and vice presidential debates forevermore.  Yes, you read that correctly.  In the aftermath of a debate sweep that might have changed the course of human history, the wisest thing that we could do is to put an end to these dangerous spectacles.

To be clear, I love debating.  I spent many years of my early life participating in and coaching debate, especially parliamentary debate at the university level.

My unhappiness with the presidential debates, however, is not a matter of academic purism.  As Professor Dorf argued before this year's debates began, there is no reason why presidential debates should follow the structure of competitive college-style debating.  The problem is not the variation on some ideal format, but something much deeper.

Not only do I not think that there is a meaningful problem with the structure of the presidential debates, but I continue to think that debates can be a valuable tool.  In my reaction to this year's first presidential debate, I argued that "good debaters beat bad debaters," no matter the venue.  And it is important for the public to know which is which.

One reader responded to my argument by saying that he does not care who the better debater is between two presidential candidates.  Instead, command of facts and the ability to construct logical arguments is what matters.  This argument, however, suggests that there is a difference between being a good debater and being able to construct reality-based, reasoned positions on the issues.  In fact, there is no difference.

In his classic and essential essay "Politics and the English Language," George Orwell rejected the notion that a person can have good ideas without having the words to express them.  When someone says, "I know what I mean, but I don't know how to say it," most people sympathetically nod.  Orwell would say, "Then you don't really know what you mean."

Orwell's point is that the path between muddled thinking and muddled communication is not a one-way street.  That is, most people seem to think that unclear thinking will always lead to unclear speaking or writing, but clear thinking might or might not find its way into clear communication.  Orwell says that if you are not making your point clearly, then you do not have a clear point.

The practical implication of that insight is that we should be wary of politicians and their handlers who excuse sloppy communications as a mere skill deficit.  George W. Bush was not coincidentally a poor speaker.  He was a muddled thinker who did not care even to try to think through issues, and that became obvious any time he opened his mouth.

All of which means, again, that I should be arguing in favor of presidential debates.  Forcing candidates for the highest offices in the land to express themselves, and to respond to the arguments made by their opponents, is a fair and perhaps even irreplaceable method of allowing people to see who thinks clearly, accepts facts (and is aware of them), and can respond to criticism.

As I noted above, moreover, my favored candidate this year benefited enormously from the debates.  Although she has been ahead all along, her recent surge seems to have been triggered by the first debate, and everything has gone her way since then.

Given that I sincerely believe Trump to be an existential threat to constitutional democracy (to say nothing of the future of the world), why should I not be thrilled by the role that the presidential debates seem to have played in saving all of us from doom?

The problem, as I have noted over and over again for the past month, is that these debates are not judged by the important standards that make debating valuable.  After the first presidential debate, I was stunned to read that even left-leaning commentators had been scoring the first part of the debate as a win for Trump.

How was that possible?  As everyone now knows, Trump was simply lying his way through every aspect of that debate (as he did during the next two), and his supposedly compelling arguments about international trade during the first twenty minutes were backed up by neither evidence nor logic.  But, the commentators insisted, he was supposedly being persuasive and "connecting" with voters.

During the first half of the third debate, Trump was just as bad.  Asked about the Supreme Court, he could not even get himself to say clearly that Roe v. Wade would be overturned if he were to become president.  He attacked Justice Ginsburg for attacking him.  He said that Hillary Clinton would destroy the Second Amendment.

In other words, Trump was doing what he always does, inside and outside of debates.  He seized on issues that he knows nothing about -- for example, late-term abortions -- and repeated some things that he had read on some right-wing website about babies being ripped out of wombs the day before birth.  Truly uninformed nonsense.

Yet, as Slate's Jim Newell usefully points out, "Much of the post-debate conventional wisdom on cable news and the internet suggests that Donald Trump was having a fine debate for the first 50 minutes or so."  Newell strongly disagrees with that conventional wisdom, and so do I.  But what does this tell us about the conventional wisdom?

This is not merely a matter of Trump being judged against low expectations.  Instead, the idea was that as long as he was talking about issues, he was doing well.  It did not matter that what he said was fantastical idiocy, because he was talking about issues, which apparently sounded serious or presidential, or something.

Add in the punditocracy's core belief that Clinton is too wonky, and the result is a consensus that whenever the debates were boring, Trump was winning.  And this suggests that a Trumpian idiot candidate in the future who is not also a crazed megalomaniac could "win" these debates.

Do we need to remind ourselves again that this year's vice presidential debate was widely judged a win for Mike Pence because he did not seem fidgety, even though he spent the debate gaslighting the world about what Donald Trump has said?  (Pence on Trump's outrageous statements, in a nutshell: "That's nonsense.  He would never say that.")

As I noted after that debate, Pence benefited from the random reversal of pundits' belief that Al Gore had lost a debate in 2000 by being too condescending.  And Mitt Romney's lie-filled 2012 debate was deemed a win because he seemed to "command the stage," whatever that might mean.

From a purely partisan standpoint, then, liberals -- indeed, anyone who is horrified by the prospect of Trump becoming president -- should not conclude that Clinton's three wins validate the importance of presidential debates.  After all, Clinton has been leading all along, and much of what has damaged Trump (the partial tax returns, the "Access Hollywood" tape and subsequent accusations of sexual assault) coincided with the debates, but they would have happened in any case.

And from a nonpartisan standpoint, we now know with absolute certainty that there is simply no correlation between the valuable knowledge that debates can provide and the impact of that information on the political response to the debates.  These are high-stakes events that can turn on the most superficial of matters, and it is not even possible to know which matters of "style" will be deemed important at any given moment.  (Too angry?  Not angry enough?  Too analytical?  Not relatable?)

The good news is that, running as an incumbent in 2020, President Clinton will be perfectly positioned to suggest that the debates be abandoned.  No one could accuse her of being scared of debating, and if anything, she would seem to be giving up an advantage.

In the end, the presidential debates were a good idea that were defeated by the irresponsibility, laziness, and superficiality of our media's political reportage.  Substance almost never matters, and style only matters in unpredictable ways.  What could go wrong?

Right now, nearly everyone is expressing relief that this year's debates are over.  It would be even better if we never again had to anticipate these ridiculously dangerous events, or the mindless coverage that accompanies them.

Thursday, October 20, 2016

Donald Trump, Insurrectionist

by Neil H. Buchanan

For the third presidential debate, I once again sequestered myself from media reactions, fact checks, conversations with friends, and so on.  As I write these words, I have not read or heard any evaluations of the debate, which allows me to offer my own reaction to the debate rather than being swayed by spin and groupthink.

I will shortly turn to the task of evaluating the debate overall, both from stylistic and substantive angles.  But I simply cannot bury the lead:

Donald Trump announced at the debate that he will not accept the results of the presidential election, unless he wins.

If that is not a plan to foment insurrection, I do not know what is.  This is not the kind of thing that one says lightly, but it is chillingly accurate.

During the debate, the moderator Chris Wallace asked Trump if he would accept the results of the election, win or lose.  Trump said, "I will look at it at the time," and then "We'll find out on November 8."  Wallace had even reminded Trump that his running mate Mike Pence had promised to accept the results, but it did not matter to Trump.

To Wallace's eternal credit, he then all but begged Trump not to go down that road, reminding him of the importance of the peaceful transition of power in our democracy.

Unfazed, Trump said: "What I'm saying is I'll tell you at the time. I'll keep you in suspense, okay?"  He talked as if this was a teaser for the final episode of a television show, not the possibility of the breakdown of American law and order.

Hillary Clinton's response was very good, as always, beginning by saying that Trump's non-answer was "horrifying."  She pointed out that Trump's pattern is to claim that everything is rigged when he loses, even down to losing an Emmy award for his reality-TV show.

Showing just how little he cares about any of this, Trump smirked and said, "Should have gotten it."  Clinton smartly worked his lack of seriousness into her response: "This is how Donald thinks. And it's funny, but it's also really troubling."  To say the least.

The reason that I am describing Trump's response as a path to insurrection, however, is that he actually described his three reasons for believing that the election is rigged.  Not only are those reasons insane, but nothing that could happen between now and November 8 could possibly satisfy him.  He will lose, and he will then tell his people not to accept the results.

First, Trump claimed that the media has "poisoned the minds of the voters."  This is standard press-baiting from any Republican, but Trump used it to say that the election itself is rigged and thus that the results will be illegitimate.

That is an incredible claim, because Trump has now decided that he alone is capable of saying whether people's votes should be counted at all.  "You voted for Clinton?  You poor thing, you were brainwashed by The New York Times and Washington Post.  Your votes are part of the rigging process, so they do not count."  Losing will be proof of his conspiracy theory.

Second, Trump claimed that millions of people who should not be registered to vote are registered.  Of course, Trump claimed that many "places" (by which he seems to have meant media sources) have verified this non-fact, which means that Trump is once again channeling a whole set of pet conspiracy theories on the right.

Trump has spent the last few weeks whipping his supporters into a frenzy with racist claims that "certain neighborhoods" are going to engage in massive voter fraud.  As always, his claims were not based on facts, but he and his surrogates have nonetheless convinced many of his supporters that African-Americans and Hispanics will steal the election.

Again, what could happen between now and Election Day that could convince Trump that voter fraud turned out not to be a problem?  He and other Republicans live in an alternative reality in which minority voters steal elections, even though all independent studies confirm that voter fraud could not possibly swing an election.

Trump will not care.  Surely, he and his supporters will cite "many, many reports" on Election Day that supposedly prove voter fraud.  And nothing will convince them otherwise.

Third, Trump decided to adapt his attack line about Clinton's email controversy by saying that she should be in jail for violating the law.  That means, according to Trump, that the election is rigged because she should not even be allowed to run against him.

Trump dismissed the FBI's decision not to indict Clinton -- which, we should all recall, saw the FBI director being very critical of Clinton yet still concluding that "no reasonable prosecutor would bring such a case" -- because of yet another conspiracy theory, this one involving Bill Clinton and the Attorney General.

In short, Trump thinks that it is acceptable to hold out on answering one of the most fundamental questions of any presidential candidate: Will you go peacefully if you lose?  And although he says, "We'll see," he has already told us what his answer will be.

When the votes have been counted, Trump will still be convinced that the media "poisoned" people's minds.  Stories of voter fraud will fill the right-wing media.  And Hillary Clinton will still not be in jail.

Trump has now announced to the world that his losing will prove that the election is rigged against him.  He will thus arrogate to himself the right to say that he did not lose fair and square.  If you are not scared, you should be.

It is thus more than a bit of an anti-climax to explain just how badly Trump lost the rest of the debate.  Even so, it is important to remind ourselves just how incapable of rational thought this man is, and how temperamentally unfit he is for any public office.

Actually, there was one good moment for Trump, from the standpoint of effective debating.  Wallace brought up the hacked emails from the Clinton campaign, asking her about the portion of a speech in which she said that she "dreamed" of a world with open borders and open trade.  This question did not take Clinton by surprise, of course.

After answering the question directly, she used the opportunity to remind Wallace and everyone else that the question was based on foreign espionage, with Russian hackers having violated her privacy in order to tilt the U.S. election to Trump.  Among other things, this allowed Clinton to remind people that the Russians have not leaked anything against Trump.

When it was Trump's turn to speak, he pointed out that the discussion of Russian hackers was not at all responsive to Wallace's original question.  As I noted above, that was a good debating move.  In three debates, Trump had one good moment.  Kudos.  Of course, Clinton actually had answered the question, and she had raised a much more important point, but why be picky?

For the rest of the debate, Trump was his usual rambling, incoherent self.  He went through his greatest hits of just-so stories and lies, continuing to blame Clinton for not having solved every problem in the world during her years as First Lady, U.S. Senator, and Secretary of State.  It is still, in Trump's view, all her fault.

I will comment on one or two policy issues in a moment, but it was especially notable how badly Trump performed stylistically.  Although he only snorted once, he was simply terrible when it came to his speaking style.  Sentences would trail off.  Sometimes it was impossible to know who or what he was talking about, because he was being so vague.

More to the point, he was a snide, condescending jerk.  He made faces when Clinton was speaking, he revived his honking "Wrong!" heckle, and he insulted her to her face.  Weirdly, he twice asked her direct questions but then cut her off dismissively when she tried to answer.

The substantive aspects of the debate were even worse for Trump.

Because I am an economist, I was especially fascinated -- and not in a good way -- by the discussion of budgetary issues.  This is not to say that any of the other issues about which Trump made up his own facts -- terrorism, immigration, guns, and so on -- are less important.  I just happen to know more about the economic issues.

The discussion went badly in large part because Chris Wallace is so ignorant about economics.  He had a tough time all night in his moderating role, and he did do a good job in some ways, but he asked ridiculous questions about economics.  Trump's answers, of course, were worse.

Early in the debate, Wallace asked this jaw-dropper: "Secretary Clinton, I want to pursue your plan. Because in many ways it is similar to the Obama stimulus plan in 2009, which has led to the slowest GDP growth since 1949."  Even Trump could not pretend that that was a fair and balanced question.

So, Wallace believes that the stimulus plan "led to" slow GDP growth?  The most generous way to view this, I suppose, is to say that the stimulus happened first, and then after a few years of decent growth the economy has slowed down disappointingly for the last few quarters.  Of course, current forecasts indicate that this is a temporary lull, but we can leave that aside, too.

For Wallace to say that the stimulus package "led to" this recent slow growth suggests causation, which is utterly ridiculous.  This is a standard Republican talking point, which is that the stimulus "failed."  The fact is that the economy would have grown even more slowly if there had been no stimulus package, and the economy would have grown faster if the stimulus package had been larger (and included fewer giveaways to the rich).

Moreover, as Clinton pointed out, the U.S. and the world in 2008 and 2009 were on the precipice of something truly terrible.  Economists were seriously asking whether a full-on global depression was imminent.  I have always thought that the stimulus was too small, and that President Obama was wrong to capitulate to Republicans and a few conservative Democrats who insisted on shrinking it, but the idea that the stimulus did something enormously important at the time that it was passed is beyond question.

Trump, of course, thinks that he has the magical touch to make the economy grow faster.  He invoked India and China to say that they have high growth rates, even though those growth rates are a matter of those countries catching up with the wealthy countries.  They cannot be replicated here.

It has become all too easy to forget just how empty Trump's economic argument is.  He says that he will bring back America's former industrial glory, by stopping jobs from leaving the country.  How?  By making it happen.

Like almost everything else he said at the debate, Trump was simply preaching to his choir.  Trade bad, immigrants bad, politicians fail, tax cuts for the rich, trust me.  It is a fantasy world, but some people like hearing him say these things.

Wallace's other economic questions focused on the national debt.  He twice invoked a "deficit scold" lobbying group as a source of claims about federal borrowing, and he then invoked the all-purpose "entitlements" trope to attack Medicare and Social Security.

To be fair, this question was likely to be more uncomfortable for Trump than for Clinton, because Trump's trickle-down tax plan is so extreme, while Clinton's plan has real numbers to back it up.  Even so, it was fascinating to see a moderator adopt as fact a model of economics that has never been less relevant than it is today, with global interest rates at or near zero.

Trump managed to give the most ridiculous answer possible.  He simply said that debt will not be a problem, because he will make the economy grow really, really fast.  He claimed that he can move the annual GDP growth rate "up to 4 percent. I think you can go higher, to 5 or 6 percent. We have a tremendous machine. We will have created a tremendous economic machine."

I guess it will be tremendous.  Why not 7 or 8 percent, as long as we are just pulling numbers out of the air?

From a debating standpoint, perhaps the most interesting moment of the night was when Wallace asked the candidates to deliver what amounted to closing statements.  Clinton delivered a crisp, positive vision of the United States and the future, promising to stand up for the powerless against the powerful.  It touched on themes that she had brought up earlier in the debate, and she closed strongly.

Trump, in stark contrast, rambled on about his usual run of fact-free claims, from our supposedly "depleted military" to "Our policemen and women are disrespected" to "Our inner cities are a disaster."  On the latter, he immediately equated inner cities with minorities, saying absurdly that "They have no education, they have no jobs. I will do more for African Americans and Latinos than she can ever do in ten lifetimes."

In short, Trump ended his final debate as he began his campaign, and as he honed his message at the Republican National Convention.  In Trump's mind, everything is terrible, and the only way to make things better is to let him do whatever he wants.

Finally, I cannot help but comment on Hillary Clinton's poised performance in the debate.  She was a picture of composure, even as Trump called her a liar and claimed absurdly that her campaign had tried to pay people to disrupt Trump's rallies.

Most importantly, Clinton managed to force herself to stand calmly next to a confessed serial sexual assailant, speaking firmly while her opponent heckled and demeaned her.

A year ago, I was not sure how I felt about Hillary Clinton as a presidential candidate.  At this point, her grace and strength have won me over.  No one else could withstand what she has withstood.  I want her working for me.

Wednesday, October 19, 2016

Colin Kaepernick and the Meaning of Patriotism

by Michael Dorf

My Verdict column for this week examines Justice Ruth Bader Ginsburg's criticism of Colin Kaepernick's refusal to stand for the national anthem. Interviewed by Katie Couric, Ginsburg called Kaepernick's ongoing boycott--which protests police brutality and racism--"dumb" and "disrespectful," even as she acknowledged that he cannot be criminally charged for his freedom of speech. I argue that while Ginsburg or any other justice can say this sort of thing without violating any judicial code of ethics (and not just because none applies to Supreme Court justices), she was unjustified in criticizing Kaepernick.

I drafted the column on Friday of last week, and by the end of the day, Justice Ginsburg had announced that she regretted the criticism. Thus, I edited the column (before publication) to make it less a critique of Ginsburg's initial criticism of Kaepernick and more of an exploration of why she was right to rescind her criticism.

My column explains why kneeling to protest the national anthem is roughly equivalent to sitting or standing quietly during the Pledge of Allegiance. Because liberals generally don't think there is anything wrong with the latter, we also shouldn't think there's anything "dumb" or "disrespectful" about the former. The column also explores the possibility that Ginsburg was making a comment about the content rather than the form of Kaepernick's protest, but I rule that out as well, because Kaepernick is raising consciousness about important issues.

Here I want to suggest and then reject a way of seeing the initial Ginsburg/Kaepernick split through the familiar lens of reformer-versus-radical. We might be tempted to think of Ginsburg as following in the footsteps of Frederick Douglass, who (in an 1860 speech in Glasgow) acknowledged that the (pre-Civil War) Constitution may have been intended by some and had been construed by many as pro-slavery, but that given its most natural meaning, the Constitution was anti-slavery. Meanwhile, we can think of Kaepernick as walking the same path as William Lloyd Garrison, who condemned the Constitution as a "covenant with death" and "an agreement with hell." Or, if you prefer a more recent dichotomy, Ginsburg was Thurgood Marshall and MLK, while Kaepernick was Malcolm X and Huey Newton.

This comparison resonates with an intriguing take of recent activism. I recently read a draft of an excellent paper (and heard a likewise fascinating presentation) by Ohio State Law Professor Amna Akbar, in which she contrasts the reformist vision for policing that one sees in the Justice Department's reports on policing practices in Ferguson and in Baltimore with what she calls the "abolitionist" approach to policing minority communities set forth in the Black Lives Matter Platform. (The paper is still in the development stage and thus not yet publicly available on SSRN or otherwise, but Prof. Akbar graciously granted permission to me to discuss it here.) She argues persuasively that the vision articulated in the BLM Platform "echoes earlier platforms of the Black Panther Party and the Chicano Young Lords." If the DOJ has a mainstream civil rights focus that grows out of the Marshall/King vision, then, to an extent not widely appreciated, Black Lives Matter has a Black Power focus that grows out of the Malcolm X/Huey Newton vision. And the closeness of Kaepernick's protest to the activism of Black Lives Matter thus reinforces the (initial) distance between Ginsburg and Kaepernick as a manifestation of a long-running split between reformers and radicals.

And yet, there is something about these comparisons that seems to get Kaepernick wrong. Kaepernick is not demanding change by any means necessary. He is engaging in wholly peaceful protest. His is not even an act of civil disobedience, as he has no legal obligation to stand for the national anthem.

Nor is it evident that Kaepernick's substantive goals are radical, rather than reformist. Back in late August, Kaepernick explained that he would stand for the national anthem when he feels "like that flag represents what it's supposed to represent, and this country is representing people the way it's supposed to." In an important sense, that is the Frederick Douglass view of the Constitution: Best understood, it advances liberty and equality; it's not being understood that way now; let's work to redeem it.

In light of the mildness of Kaepernick's means and ends, the reaction against Kaepernick by various commentators and current and former athletes is interesting. A great many have been supportive, but some have been quite critical. Some of that criticism has been mindless, as when Ted Cruz called Kaepernick "spoiled" (and attacked President Obama for supporting Kaepernick's right to free speech).

But there has also been some thoughtful disagreement with Kaepernick. The most interesting I have seen came from Baltimore Ravens tight end Benjamin Watson. While defending Kaepernick's right to free speech and pretty much agreeing with Kaepernick about the issues of racial justice Kaepernick cares about, Watson argued that one can stand for the national anthem as a kind of mindful (as opposed to mindless) patriotism. (I say this even though Watson's views on a number of issues differ from mine. E.g., he is pro-life and he thinks that "religious freedom is increasingly under attack.)

There is a sense in which both men are right. Watson is obviously right that if any problems at all precluded participation in the national anthem, then no one could ever stand for the song, because our country is not and never will be perfect. But I take Watson to be making more than that trivial point. I take him to be saying that we are not merely imperfect; we are deeply troubled still by our original sin, just as Kaepernick argues. And even so, Watson thinks that the right answer is to engage in the collective patriotic ritual.

There is no doubt something to that--especially when coupled with a defense of the right of Kaepernick and others to dissent. But even so, I think the very thoughtfulness of Watson's defense of mindful patriotism shows the efficacy of Kaepernick's protest. Kaepernick has succeeded in refusing to accept racial injustice as normal, but in doing that he joins a chorus of many voices, including other athletes (like NBA stars Lebron James, Chris Paul, and Carmelo Anthony). What Kaepernick almost alone has done is to spark a renewed conversation about the meaning of patriotism.

Tuesday, October 18, 2016

The Importance of Protecting Jury Secrecy

by Sherry F. Colb

In my Verdict column for this week, I discuss the U.S. Supreme Court case of Pena-Rodriguez v. Colorado, which raises the question whether the Sixth Amendment entitles a criminal convict to use juror testimony to impeach a verdict on the basis of racial bias on the jury.  My column addresses the line-drawing question about which sorts of bias--just racial? just identity-based? non-identity based as well?--would justify going behind the verdict and inquiring about jury deliberations.  In this post, I want to suggest that the evidence rules that generally prohibit impeaching a verdict with juror testimony may ultimately be misguided.

The main reason we generally prohibit dissatisfied parties from utilizing juror testimony to impeach a verdict is to protect jury secrecy and prevent the harassment of jurors after a case has been tried.  If jurors had to worry about their words coming back to bite them, they might not be able to deliberate as fully and uninhibitedly as they otherwise would.  This is true, but I would raise two questions about this:  first, do we want jurors to be completely uninhibited in what they say during deliberations?  And second, does a rule against impeaching a verdict with juror testimony truly protect the secrecy of deliberations?

To respond to the first question, it may be less than ideal for jurors to feel that they can say whatever occurs to them during jury deliberations.  If they harbor biases (whether racial or otherwise) and they feel comfortable sharing those biases, then there is a risk that other jurors may feel empowered to give expression to their own biases when they might otherwise have worked hard to avoid doing so. At one point during the oral argument, it was suggested that the ability to impeach the verdict with evidence of racial bias would drive such bias underground (i.e., inhibit jurors from expressing it during deliberations).  Justice Sotomayor had a very interesting response to this concern:
Well, why? Isn't -- you know, there's a lot of talk about political correctness or not. And some people think it's a negative thing, and others think it's a positive thing. But if an individual is harboring racial bias, isn't it better to harbor it than infect everyone else's deliberations on the basis of it?  I mean, if you're not saying every Mexican commits this kind of crime, but you're forced to argue the evidence to convince your jurors, isn't that exactly what we want? Don't we want deliberations on evidence and not deliberations on someone's stereotypes and feelings about the race of a defendant?
The same could be said of other types of bias.  If jurors feel somewhat inhibited about how they conduct themselves during deliberations, they may employ their "best selves" in carrying out their job of figuring out the case rather than giving voice to irrational and invidious ideas that juror secrecy emboldens them to express.  Perhaps "political correctness" in the jury room is not such a bad thing.

Let us now assume for argument's sake, however, that jury secrecy is good and that we want jurors to feel uninhibited during deliberations.  If so, then the rule prohibiting impeachment of a jury verdict will not necessarily be enough to protect jurors' freedom.  After all, when a juror expresses biases or other improper inclinations, other jurors are free to take note of that and to speak to people about it after the trial, even if they are not testifying on behalf of impeaching the verdict.  In Tanner v. United States, for example, jurors came forward and talked about the drunkenness of other jurors, and people learned about it notwithstanding its never coming in to impeach the verdict.  If a juror says something embarrassing or inappropriate, there is nothing to stop fellow jurors from publicizing that fact after the trial.  The rule therefore, rather than truly protecting secrecy, may simply be protecting questionable verdicts from challenges with evidence of bias.

When I teach Evidence, I tell my students that we strictly constrain the sorts of evidence that the jury may hear in the course of the trial, only to completely cloak the jury in secrecy and a kind of immunity once the case is submitted.  Perhaps this is wrong.  Maybe if we worry enough about juror error, bias, and other issues that we carefully design rules of evidence to limit what jurors see and hear, we ought to be willing to inhibit them in the jury room as well.  And even if we prefer not to inhibit them in that way, rules that preclude the impeachment of jury verdicts based on juror testimony will not necessarily give the jurors the freedom that we imagine.  Their fellow jurors, ultimately, can expose bigotry and other misbehavior that takes place in the jury room, whether or not such exposure results in the official impeachment of the verdict at issue.  So the rule may be both undesirable and ineffective in its objectives.

Monday, October 17, 2016

Can Democrats Tie GOP Dog Whistlers to GOP Bigots?

by Michael Dorf

Since it became clear that Donald Trump was going to be the GOP nominee for the presidency, left-leaning commentators have been divided over how to characterize his bigoted statements regarding race, sex, and religion. One view holds that Trump is an outlier and a unique menace. I'll call this view Trump exceptionalism. The other view is that Trump simply states much more bluntly positions that are widely shared by Republican voters and other Republican politicians but that they are too polished to say expressly. I'll call this view Trump as GOP on truth serum.

My goal in this post is not to referee between exceptionalism and truth serum. For what it's worth, I think there are elements of both in any fair comparison between Trump and the majority of GOP politicians. My question here is whether Democrats can do a better job of making the argument for the truth serum view as a means of discrediting the GOP in this election and in future ones when, one hopes, Trump has gone back to private life.

First the conventional answer for why Trump exceptionalism has thus far dominated Trump as truth serum as the Democratic strategy: You try to win the election you're in. Speech after speech at the Democratic National Convention and the whole approach of the Clinton campaign aim to persuade the public that Trump is a unique menace who violates norms long accepted by Democratic and Republican candidates alike.

Promulgating Trump exceptionalism makes Democrats somewhat complicit in standard GOP dog-whistle bigotry, because it at least tacitly accepts that generic GOP rhetoric is not bigoted. Further, in the current election, Trump exceptionalism makes it harder for down-ballot Democrats to tie their Republican opponents to Trump, even as it helps Clinton broaden support for her presidential candidacy. It is therefore to be expected that over these last three weeks of the campaign, Clinton will continue to run on Trump exceptionalism while Democratic candidates for the House and Senate will run on Trump as truth serum.

I expect Trump exceptionalism to be more effective, except perhaps for those down-ballot Republicans who have tied themselves closely to Trump (either because they like him or, more likely, because they fear backlash from his supporters). In general, the truth serum approach has a limited audience. To explain why, I'll segment the electorate as follows:

1. Some portion of voters are committed Democrats. They already believe that Trump (and other offensive GOP candidates, like 2012 Missouri Senate candidate Todd Akin) are simply stating more crudely what other GOP candidates say in code. They already believe that Trump is truth serum, so they don't need persuasion.

2. Another portion of voters are committed Republicans. Some of them hear and like the bigoted dog whistles. They fall into the deplorable basket. Arguing to them that Trump is substantively no different from other Republicans won't move them away from those other Republicans. Other committed Republicans (in the non-deplorable basket) wouldn't like to hear dog whistles and don't think that mainstream GOP candidates and elected officials use dog whistles; because they're committed to the team, they're effectively unreachable too.

3. Some voters are engaged in and care about politics but don't align neatly with either the Democratic or Republican coalition. Whether or not registered as Independents, they are effectively independent. They might be across-the-board libertarians. Or they might be social conservatives who favor active government social spending. Either way, in a typical Democratic-versus-Republican election, they need to decide which of their commitments are more important to them. These voters are sufficiently engaged that they will either be attracted to or turned off by the underlying policies of Republican candidates who make politer versions of Trumpian points, whether or not they equate those policies with dog whistles. A voter who is, say, a libertarian who generally votes Republican despite the fact that GOP politicians use dog whistles knows about the dog whistles and doesn't like them but thinks that other issues matter more. Persuading such a voter about the dog whistles is not necessary and thus ineffective.

4. That leaves just one group of voters who need to be and in theory could be persuaded that the likes of Trump, Akin, and Maine Governor Paul LePage are really just generic GOP politicians on truth serum: non-deplorable voters who are independent because they are "low information."

Let me be clear that I'm using "low information" as a term of art. Lots of voters with strong political views on the right or the left are "low information" in the sense that they believe things that are contrary to actual information, i.e., are false. E.g., Barack Obama is a Muslim; global warming is a hoax; 9/11 was an inside job; vaccines cause autism. That's not what I mean by "low information voters." I mean what political scientists mean: voters without a lot of information about politics. One could be an erudite genius about any number of subjects and still be a low information voter (although general ignorance will usually correlate with low information in the technical sense). The key point is that a low information voter doesn't know much about politics and doesn't care enough to find out. He or she knows and cares enough to vote, but that's about it.

Now we come to the difficulty. Suppose you want to persuade a low information voter that Donald Trump's incendiary rhetoric is merely generic Republican dog whistles plus truth serum. How are you going to do so? You would need to compare what Trump says with what other Republican candidates and officials say and do. But that's a pretty complicated task. You'll need to get and hold the attention of your audience, which is almost by definition impossible for low information voters. Worse, your efforts will be countered by Republicans wishing to distance themselves from Trump et al. The game isn't worth the candle.

Thus, I conclude that in addition to whatever tactical tradeoff the Clinton campaign is making, the more general phenomenon of Trump exceptionalism wins out over Trump as GOP truth serum because there's no truly reachable audience for the latter.

That conclusion is likely to be strengthened in future elections for two reasons.

1) With Donald Trump constantly in the news saying something outrageous, it is at least possible right now to get a little bit of the attention of low-information voters and to point out that he is after all running as a Republican. That may not count for much, but it probably counts for something. It's why Democrats have a decent chance of winning the Senate and an outside shot at the House. But assuming Trump loses, in future elections in which he is not on the ballot, Republican candidates can simply follow the same basic strategy that Mike Pence used in the Vice Presidential debate: "Donald Trump? Never heard of him." Low-information voters will not remember the nuances of which GOP politicians distanced themselves by what degree from Trump.

2) Indeed, in future elections, Trump could actually be useful for GOP dog whistlers. A Republican politician who caters to Islamophobia by opposing resettling any Syrian refugees will say that he never called for banning all Muslims from entering the country. One who opposes a path to citizenship for longtime resident undocumented immigrants to appease his nativist base will say that he never proposed building a gigantic border wall or called an Indiana-born judge biased simply because of his Mexican ancestry. And a Republican elected official who votes against equal rights for women will say that he never advocated or practiced sexually assaulting women. By defining deviancy down, Trump has made it easier for future politicians to maintain plausible deniability when they dog whistle racism, sexism, and xenophobia.

Sunday, October 16, 2016

Divided Government is Great so Why not for SCOTUS

By Eric Segall

I am excited to be giving a talk tomorrow at Indiana University on my proposal that the Senate do what it can to make permanent our current eight person evenly divided Supreme Court. I’ve already written a lot about this idea but, in thinking more about it for my presentation, came up with yet another reason why this solution makes a lot of sense. Although the analogy is not perfect, it says a lot. Divided government has major benefits many of which apply with equal force to the Supreme Court.

One of the bedrock principles underlying our Constitution is that separated (and shared) powers protect liberty while also allowing our leaders to act effectively when the need arises. Not only do we have three branches of the federal government but we also disperse power vertically between the national and state governments. In the words of James Madison, “the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

More often than not, and whether consciously or not, over the last half-century the American people have chosen to divide the national government along partisan lines as well. In 40 of the last 48 years, no single party has controlled both Houses of Congress and the Presidency. The only exceptions were two three-year periods following the Watergate scandal and the tragedy of 9/11, and the first two years of the Obama Administration.

There are many advantages to dividing power in this manner. In a divided government, it is much harder for political officials to enact controversial and divisive legislation, more difficult for them to unite behind a politically inspired but unwise war, and, perhaps most importantly, more likely that beneficial legislation will be effective and maintained because it has, by definition, bi-partisan support.

Many of these same principles and advantages support an evenly-divided Supreme Court (like the one we have today with four Republicans and four Democrats). As I’ve written before, the core issue in every constitutional law case that comes before the Justices is under what circumstances they should impose a national rule on all fifty states, the Congress, the people, the President, or often all of the above.

Although we are now used to the Justices opining on virtually all of our most difficult legal, moral, and political questions, the Court should only impose its will and displace decisions by other political actors, when the Constitution requires it. Unfortunately, many constitutional cases involve hopelessly vague text, contested history, and shaky precedents, thereby making it easy for people to reasonably disagree on how such cases should be resolved.

Allowing five or more Justices to efficiently impose their will whenever they want to has led to many unfortunate periods in American history when out-of-touch Justices imposed personal value judgments not supported by law on the rest of the country. For example, from 1900-1936, the Court struck down over 200 state and federal laws dealing with work place conditions and safety as well as our local and national economies in cases that most people now think were incorrectly decided.

A better system would allow the Justices to exercise their power of judicial review only when there is at least some bi-partisan support among the Justices for their decisions. There are at least three compelling reasons for such a rule.

First, we want to be sure that when the Court does overturn political decisions made elsewhere there are substantial reasons for that reversal beyond pure ideological disagreement. Second, when the Justices cross ideological lines in politically charged cases, their decisions will likely be better received by the public and less likely to be changed or whittled down over time by future Justices, all of which serves the interests of consistency, fairness, and the core rule of law principle that similarly situated litigants should be treated similarly. Under our current regime, the Justices have changed their collective minds in virtually every area of litigated constitutional law from free speech to freedom of religion to the commerce clause to federalism to the separation of powers. These pivots, backtracks, and outright reversals reveal with stark clarity that ideological divides often explain the Court’s 5-4 decisions much better than legal principles or logic.

Third, if the Congress were to permanently set the Court at 8 Justices (the Constitution requires no number) with a required 4-4 partisan balance, the Justices would know that to maintain their power and influence over time, they would have to deadlock in fewer cases because when such a tie occurs, the lower court decision retains full legal effect. This reality would inevitably lead to more consensus decision-making and narrower opinions by the Justices who would have to be more modest and cautious. Just like with all divided governments, the advantages of avoiding tyranny, in this case the tyranny of five or more ideologically similar but unelected life-tenured Justices, are significant.

          Where the Justices do deadlock, the final decisions would be made by court of appeals judges who certainly also decide politically charged cases with the same ideological biases as the Justices. But dispersing this power among hundreds of lower court judges who are much more diverse educationally, geographically, politically, and socially than nine Justices sitting in Washington, D.C., would reduce the ill effects of rule by one small group of judges/politicians who today wield such great power.

The two major objections to this proposal are that it impairs the uniformity of federal law and that there is no effective way to insure over time that the Court remains ideologically balanced. I respond to both below but with the caveat that my proposal doesn’t have to be perfect, which it is not, just superior to our current method of selecting Supreme Court Justices.

Over 99% of federal cases never reach the Supreme Court and thus do not implicate the uniformity interest. Of the only seventy-five or so cases that the Justices do decide to hear every year, approximately 80% are decided by at least 6-3 majorities and about 50% by unanimous votes. Of the remaining 15 cases or so that are decided 5-4, many do not involve issues of uniformity. Thus, the uniformity objection is vastly overstated, especially when compared to the many advantages of an evenly-divided 4-4 Court outlined above.

Moreover, if uniformity in a particular case is absolutely essential, the Justices will almost certainly find a way to reach agreement. If the country badly needs a rule or a final decision, even a rule or result one or more of the eight Justices doesn’t agree with, it is extremely likely the long term institutional concerns of protecting the Court and the country will trump the Justices’ ideological preferences, and that is exactly how it should be.

This proposal could be implemented in a bi-partisan manner by the Congress without too much difficulty and without a constitutional amendment. First, both the Senate and the House would have to set the number of Justices at 8 or any even number. Then, the leaders of both parties in the Senate could announce to the President that he or she has the constitutional prerogative to nominate whomever he or she wants, but the Senate will only confirm a nominee of the same political party as the retiring or deceased Justice. This procedure could be supplemented with a rule that if the President nominates someone whose party affiliation is unknown, or is an independent, such a nominee will be approved upon a ¾ vote of the Senate.  Such bi-partisan agreements about Senate procedures are common as the long history of the filibuster and the blue slip procedure demonstrates. Of course, there is no way to insure future Senates would play by the same rules, but that is true for many aspects of the nomination and confirmation process.

This process would have the additional benefit of likely producing more moderate nominees to the Court, such as White, Blackmun, Stevens, and Souter because at times Presidents will have to nominate Justices from the opposing political party such that liberal republicans and conservative democrats will be the likeliest candidates. Americans of all political stripes benefit from having more moderate Justices on the bench who are not clearly aligned with either the far left or the far right. Sometimes a Justice may veer far away from the politics she started with, but that happens with our current process.

Divided government brings many benefits, especially if it also allows government officials (or judges) to act efficiently when necessary. A permanent 4-4 evenly divided Court would leave the Justices with all the tools they need to maintain both the uniformity and supremacy of federal law without arming the Court will the ability to impose pure ideological agendas over long periods of time No matter what happens on Election Day, the Senate should strongly consider adopting rules to make it more likely we will forever have an ideologically divided Supreme Court.

Friday, October 14, 2016

Addicted to Power, Allergic to Principle

by Neil H. Buchanan

I have been doing everything possible not to write -- or even think -- about the new depths to which the Trump campaign has lowered this country.  What we now know about Donald Trump's actions, words, and attitudes toward women is somehow both shocking and completely unsurprising.  This is no longer about his being the most unqualified candidate ever to run for the presidency.  This is about human decency.

A lot of Republicans know this.  It is hard to believe that it took the most recent outrage to convince some people to give up on Trump, but better late than never.  There was, at last, a panicked stampede to the exits immediately after we first saw the video in which Trump bragged about being able to sexually assault women.

The problem is that many Republican officials remained in Trump's corner, and some of those who joined the initial stampede have actually doubled back.  Watching those returnees squirm is something to behold.  My favorite line, from Nebraska's Senator Deb Fischer, is that even though she called on Trump to step aside for the good of the country, he ignored her advice.  So she still supports him.  Another profile in courage.

Even those who are standing firm (so far) in not supporting Trump continue to say that they will not support Hillary Clinton.  John McCain, for example, finally gave up on Trump last weekend, but he then ruled out supporting his former Senate colleague for the presidency.

Back in August, after an earlier barrage of Trumpian ugliness, Maine's Republican Senator Susan Collins announced that she would not support Trump.  But she, too, does not support Clinton.  Why not?  This is an important question, because Collins is already on the record as saying that Clinton is "clearly qualified to be president," so it would seem that Collins cannot claim that neither candidate passes muster.

Gail Collins, the op-ed columnist for The New York Times (who is unrelated to Senator Collins) wrote at the time that it was important to understand just how cowardly this stance is.  She also noted that Collins's explanation was beyond silly, with the senator accusing Hillary Clinton of making "[p]romises of free this and free that, that I believe would bankrupt our country."

Although Senator Collins certainly deserved to be mocked, her statement was not actually a surprise.  It has long been obvious that she is not the reasonable moderate that the press believes her to be, especially on economic matters.

Most notably, during the negotiations over the 2009 federal anti-recession stimulus bill, Senator Collins joined with two colleagues to withhold their votes until the Democrats agreed to cut some of the funding for education from the bill.

Education?  Yes, it was important to keep the deficit down, these visionaries said, because they believe (wrongly, especially for debt that is incurred because of spending during a recession) that debt creates an unconsionable burden on future generations.  And how best to protect the interests of those future generations?  By spending less money on their educations, of course.

Today, Hillary Clinton is supporting universal early childhood education, and she has laid out a plan to allow middle- and lower-income students to attend college without taking on crippling levels of debt.  Moreover, she has detailed exactly how this will be financed, mostly by attacking inequality through progressive tax increases.

But Susan Collins says that this will "bankrupt our country."  I have always assumed that she is smarter than that, but maybe not.

In any case, Collins is certainly not the only Republican officeholder who indirectly supports Trump by not supporting Clinton; and there are plenty of other Republicans who never abandoned Trump at all.  What are their excuses?

During the second presidential debate, Trump famously said that if he were president, Clinton would be in jail.  Ignoring his own campaign manager's post-debate spin that his incendiary statement should not be taken literally, Trump then spent the week whipping his supporters into a frothing rage over Clinton's supposed criminal liability.

Based on comments from Trump's voters, on internet boards as well as at rallies, they now believe that the case against Clinton is so strong that she should be in jail right now. 

John Dean's new column on Verdict, however, points out that the standard Republican case against Clinton does not even include specific claims about what law or laws she might have broken.  Former federal prosecutor Chris Christie's infamous Republican National Convention speech, which included claims that she was "guilty" of one thing after another, was deliberately vague about the content of any potential criminal complaint.

Trump's current favorite line is that Clinton "acid washed" 33,000 emails even after a subpoena had been issued.  As with nearly everything else that Trump has said during the presidential debates (and in every other public appearance), that is simply not true.  Here is what the fact-checkers for The New York Times wrote about Trump's claim:
Mrs. Clinton's aides did indeed delete about 33,000 emails from her private server, emails that she said were “personal” in nature. The FBI, however, indicated that many of the deleted emails may in fact have been related to her work at the State Department.

Days after the New York Times first disclosed Mrs. Clinton's use of a private email system in March 2015, the House committee investigating the 2012 attacks in Benghazi, Libya, asked that her emails be preserved and subpoenaed those that were related to the attacks.

But about three weeks later, an unidentified computer specialist realized that he had not destroyed an archive of emails that was supposed to have been deleted a year earlier, according to the F.B.I. report. The specialist then used a program known as BleachBit to delete an unknown number of emails, the FBI said.

Mrs. Clinton told FBI investigators that she was unaware that the aide had deleted the emails. The FBI did not find evidence to contradict that assertion.
As an aside, it is rather astonishing that The Times somehow labeled Trump's claim as "mostly true."  The FBI says that some of the emails "may" have been work-related.  The subpoena, in any event, was not for emails "related to her work" but specifically for Benghazi-related emails.  And in any event, Clinton or her aides authorized the deletions long before the subpoena was issued.

Yet, in a fact-checking article in which The Times issued verdicts for other assertions like "mostly misleading" and "more questions than answers," this Trump claim is deemed "mostly true"?  The fact-checkers for The Times are nonpartisan, but Republicans have long claimed that that newspaper is biased against them.  Maybe this is overcompensation.

In any case, the Republican politicians who claim that they cannot support Clinton because she is a criminal who should go to prison cannot back up those claims.  And if those who have abandoned Trump really think that Clinton is a criminal, and that her crimes would make her a worse choice to be president than even Donald Trump, why are they not supporting him?  "They're both bad" is not an answer.  One of them will be president.  Which one do you support?

We have, therefore, now reached a final crossroads.  Unfortunately, the bizarre dance of the past week, with Republicans repudiating and un-repudiating Trump, and others pretending that they can stand aside entirely, has been driven in large part by political cowardice.

To be clear, Republicans who abandon Trump apparently do come in for serious verbal and online abuse from Trump and his supporters.  Trump has specifically gone after Senator McCain and House Speaker Paul Ryan, and no one is safe when Trump goes on the attack.

That must surely be unpleasant, but let us think for a moment about the choices facing a Republican who understands how terrible Trump would be, and who knows (but will not say so out loud) that Clinton is qualified to be president and has been unfairly attacked for decades.  What can such a politician do?

Why not stand for something?  I do not mean this in some abstract sense, and I know how very serious it is to ask someone else to risk his or her job.  Even so, there are worse things than losing elections.  And frankly, no one in either house of Congress will starve if they have to leave office.

Susan Collins is about to turn 64 years old, and she is completing her twentieth year in the Senate.  I have no doubt that she would like to continue to serve.  I also have little doubt that she could win her next election in 2020, but maybe she really will be punished by voters at that time.

Even so, how addicted to power must a person be to show such complete aversion to taking a chance?  The country and the world might be at risk, but people like Collins are unwilling to gamble on losing their jobs over it.

Senator McCain is in an even less defensible position.  Yes, he is actually up for reelection this year, and he might well lose if he backs Clinton.  On the other hand, he is now eighty years old and is finishing his thirtieth year in the U.S. Senate.  He sacrificed and suffered horribly as a young man for this country.  It is a shame to see the way he has contorted himself during this campaign.

I am focusing on Collins and McCain not because they are the only ones making indefensible statements about the election, but because they are so obviously embarrassing themselves by trying to pretend that Hillary Clinton's supposed drawbacks are in any way equivalent to Donald Trump's manifest unacceptability to be president.  One might hope that they could see that leaving the Senate a bit earlier than planned might be something worth doing, given the stakes.

Some Republicans, of course, simply agree with Trump.  They will have to face judgment of a different sort some day.  But the people who are perhaps most fascinating are those who will not repudiate Trump, much less endorse Clinton, all the while claiming that they find Trump "troubling."

The poster child for this kind of spinelessness is, of course, Paul Ryan.  He could move into private life easily, following his former "young turk" colleague Eric Cantor into a lucrative early political retirement.  Ryan's ambitions, however, appear to be less careerist -- although there is clearly a lot of that at work here -- and more about pure ideology.

Ryan said after the latest Trump outrage that he hopes that Trump "works to demonstrate to the country that he has greater respect for women than this clip suggests," which simply means that he is waiting for Trump not to be Trump.  Ryan's subsequent decision to focus on congressional races sounded like a big deal, but he did not withdraw his endorsement of Trump even then.

Ryan has a long-term agenda, trying to privatize Medicare and Social Security and cut taxes for the wealthy, while supporting all of the other elements of the right-wing wish list.  (He is, on social policy, in the same camp as Mike Pence.)  The man who lied his way through the 2012 campaign is the same person today.

Ryan has decided that this agenda is more important than the clear and present danger that is Trump.  Trump is useful to Ryan, especially because Ryan has announced that he plans to abuse the rules of the House to steamroll all opposition to his legislative agenda.  But that requires having a Republican in the White House, so Ryan is on board with having Trump be that guy.

And if Trump plays footsie with Russia, or starts a nuclear war in the midst a tantrum?  Well, Ryan says, Clinton is worse.  Which means that Ryan believes that his pet spending cuts and upward redistribution of wealth is so important to him and his backers that they cannot even wait for four years, during which time they could try to limit Clinton's actions and then find a candidate in 2020 who is not Trump.

A friend asked me earlier this year: Where is today's Franklin Delano Roosevelt?  Where is Winston Churchill when we need him?  Those men are historically unique examples, but today's choices are potentially as momentous as the threats that the world faced in the middle of the twentieth century.

Do we really have so few people who are willing to look around and say that some things matter more than partisan advantage?  I am not asking any of them to lead us through a world war.  I would just ask them to take a tiny career risk to prevent the next one.

Every Republican is now facing a fateful choice.  Many of them surely have been nurturing dreams for many years of higher office.  But none of them will lack for work if they leave public life, and all of them can stand on the right side of history with very little personally at stake.  What will they choose to do?