Is the Republicans' Damage to the American System Already Irreversible?
by Neil H. Buchanan
The looming threat of autocracy that Donald Trump poses deserves more attention than it is getting. In a Verdict column last week, I described why we should take very seriously the idea that Trump will simply refuse to leave office -- even if he loses next year's election badly -- and why Republicans are showing every sign of going along with what would amount to a coup. "Oh, he's right that there was massive voter fraud. That's why I lost my Senate seat, too. We can't let Democrats steal elections!"
Former Trump lawyer Michael Cohen might be a convicted liar, but when he says, "Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, that there will never be a peaceful transition of power," I suspect that he is telling the truth.
I do understand why many people do not want to "go there": first, it sounds alarmist to call someone a would-be dictator ("This is America! We're stronger than any one man."); and second, living in denial is more comfortable than confronting reality. Even though neither of those reasons justifies ignoring or diminishing the threat, it is at least possible that the worst will not happen.
For today, therefore, I want to put on an optimist's glasses when it comes to next year's elections and say that the Democrats will win the presidency and both houses of Congress (which would likely also mean picking up quite a few state legislative seats and governorships) — and Trump and the Republicans accept the results. What then? Will things go back to something that can be called normal? In a word, no. It turns out that even the optimistic scenario quickly becomes pretty darned pessimistic.
As people have been noticing for the last few years, much of what is wrong with the American political system started long before Trump came along. He is, in a very real sense, the inevitable end game of the Republicans' descent into power-hungry madness. Yes, he angered and pushed aside the very people who made his takeover of their party inevitable, but that is simply a matter of Dr. Frankenstein being surprised by his monster's destructiveness.
Has the conservative movement's strategy, honed and radicalized for more than half a century, irretrievably undermined the rule of law and made further degradation impossible to prevent? Or, to put it differently, what could a post-2020 Democratic Party do to repair the damage?
On some issues, it actually would be rather simple to imagine how to fix the system. As to elections themselves, House Democrats' H.R. 1 includes a raft of reforms, including required early voting and such franchise-expanding ideas. There, the Democrats have every reason to do the right thing, for the simple reason that their self-interest as a party happens to line up perfectly with small-d democratic ideals. Republicans and their Dixiecrat predecessors, after all, have spent one hundred and fifty years suppressing votes for a very simple reason: conservatives (and especially racists) lose elections in which turnout is high.
The other central strategy that Republicans have relied on, gerrymandering, is somewhat more difficult but not ultimately a problem. It is true that Democrats have engaged in their own line-drawing games (as the challenge to Maryland's congressional districts demonstrated last year), and it is also true that Democrats could go all-in on gerrymandering when they take power in 2021. But again, they do not need to mirror Republicans' cynicism. They can take the high road -- and remind everyone every day that they are taking the high road -- and win simply by undoing what Republicans have done without needing to do more.
The gerrymandering issue, however, is a reminder of another element of the Republicans' radicalism and willingness to destroy norms. Until this century, it was a given that redistricting would immediately follow the Constitution's required decennial census, and then we would live with those districts for the ensuing ten years. Former Republican House Majority Leader Tom DeLay changed that, however, by initiating an off-year redistricting scheme in Texas that switched a large number of seats to the Republicans. Why did he do that? Because he could. Norms go away when someone with power finds them inconvenient.
And that brings us to the big enchilada: the judiciary. (I note as an aside that radical Republicans also inflicted major damage on Congress itself, with Newt Gingrich all but destroying the committee system and his successors adopting the "majority of the majority rule" that gives power to a minority; but those matters are too far afield for this column.) What can be undone in terms of the Republicans having packed the courts? Not much, I am afraid, and all of it is deeply problematic and involves further norm-busting.
During the ghastly mess that resulted in Brett Kavanaugh becoming a Supreme Court Justice -- side note: both Kavanaugh and Neil Gorsuch should have asterisks permanently added to their titles, Justice* Kavanaugh and Justice* Gorsuch -- there was some discussion about the possibility of impeaching Kavanaugh after the Democrats retake the Senate. Predictably, the conversation quickly moved to the next Trump tweet, but the possibility was at least raised.
It is certainly true that plenty of Democrats would tut-tut and say that they cannot imagine breaking the norms that have governed impeachments, and for good reason. No one wants to move toward a world in which the courts are constantly being reshaped by day-to-day political battles. But what is the alternative?
Former Attorney General Eric Holder made news recently by talking seriously (as have some others) about adding seats to the Supreme Court. If we cannot remove Gorsuch and Kavanaugh, after all, maybe we can add two justices to counterbalance them. Predictably, The Washington Post's news article was anything but neutral, with the headline describing this as a "court-packing" plan and saying that it is "a new frontier for presidential candidates looking to display their liberal credentials." Somehow it is a lefty plot to pack the courts?
In response, the reliably pearl-clutching Post reporter Aaron Blake claimed that the Democrats' timing was wrong, because "it would seem Republicans are more likely to gain that kind of control in the coming years. And if they think Democrats are just going to do these things, why not beat them to the punch?" Right, because Republicans only stole Merrick Garland's seat because they feared that Democrats would do it to them first. Otherwise the Republicans would have exercised restraint, because they would never think of playing dirty on their own.
Seriously, however, the problem goes beyond the Supreme Court. Senate Majority Leader Mitch McConnell famously refused to give Garland a hearing (much less a vote), and he held open as many lower court seats as possible during Barack Obama's presidency and is now frantically filling them during Trump's. Again, what can the Democrats do in response to this? (1) Impeach some of those judges, (2) Add judges, or (3) Live with an illegitimate judiciary, on the theory that "We don't stoop that low, and this will just spin out of control." (Note that the Republicans' new justices and judges would surely block much of H.R. 1 and the Democrats' other electoral reforms.)
The point is that the die has already been cast, and there are now only terrible choices. I once described a possible response to McConnell's stonewalling of Garland (although I cannot find the link to that column right now). Beyond the ridiculous claim that he was allowing "the people" to decide who should be the next Supreme Court justice, McConnell's argument was simply that the Constitution's provision giving the president the power to nominate judges did nothing to require the Senate to vote on the nominations. He had the power to prevent votes, and he wielded it.
What could Obama have done? Nothing in the Constitution tells us what the "advice and consent of the Senate" actually means, so why not say that it means that the Senate can be deemed to have consented to a nomination by refusing to offer its advice or take a vote?
Sound radical? Of course it is; but where are we now? The Democrats played nice and let the Republicans steal the seat, and perhaps the Democrats had no choice. After all, the public reaction to such a move probably would have doomed the Democrats in the 2016 election. Again, however, where are we now?
As shocking as it would have been for Obama to make that play, the Democrats two possible actions going forward -- impeachment and adding justices and judges -- are shocking, too. The problem is that there is no going back. Once everyone realizes that what looked like a barrier was not a barrier at all, they cannot count on Republicans to play by the rules.
If Democrats do try any of these things, we can count on Republicans to scream bloody murder. McConnell, after all, responded to H.R. 1 by saying that it was a "power grab" by Democrats, which simply takes for granted that Republicans' decades of power grabs are somehow the baseline. And the mainstream press will continue to run silly analyses like those Post pieces that I noted above.
That merely means, however, that the Democrats might be completely boxed out by the Republicans' shamelessness. Unlike the story with voting and districting, the Democrats simply have no path forward on the courts that is not in some sense radical and norm-breaking. That, however, is not their doing. They have no better choices, thanks to the Republicans. As I said, optimism becomes pessimism rather quickly.
The looming threat of autocracy that Donald Trump poses deserves more attention than it is getting. In a Verdict column last week, I described why we should take very seriously the idea that Trump will simply refuse to leave office -- even if he loses next year's election badly -- and why Republicans are showing every sign of going along with what would amount to a coup. "Oh, he's right that there was massive voter fraud. That's why I lost my Senate seat, too. We can't let Democrats steal elections!"
Former Trump lawyer Michael Cohen might be a convicted liar, but when he says, "Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, that there will never be a peaceful transition of power," I suspect that he is telling the truth.
I do understand why many people do not want to "go there": first, it sounds alarmist to call someone a would-be dictator ("This is America! We're stronger than any one man."); and second, living in denial is more comfortable than confronting reality. Even though neither of those reasons justifies ignoring or diminishing the threat, it is at least possible that the worst will not happen.
For today, therefore, I want to put on an optimist's glasses when it comes to next year's elections and say that the Democrats will win the presidency and both houses of Congress (which would likely also mean picking up quite a few state legislative seats and governorships) — and Trump and the Republicans accept the results. What then? Will things go back to something that can be called normal? In a word, no. It turns out that even the optimistic scenario quickly becomes pretty darned pessimistic.
As people have been noticing for the last few years, much of what is wrong with the American political system started long before Trump came along. He is, in a very real sense, the inevitable end game of the Republicans' descent into power-hungry madness. Yes, he angered and pushed aside the very people who made his takeover of their party inevitable, but that is simply a matter of Dr. Frankenstein being surprised by his monster's destructiveness.
Has the conservative movement's strategy, honed and radicalized for more than half a century, irretrievably undermined the rule of law and made further degradation impossible to prevent? Or, to put it differently, what could a post-2020 Democratic Party do to repair the damage?
On some issues, it actually would be rather simple to imagine how to fix the system. As to elections themselves, House Democrats' H.R. 1 includes a raft of reforms, including required early voting and such franchise-expanding ideas. There, the Democrats have every reason to do the right thing, for the simple reason that their self-interest as a party happens to line up perfectly with small-d democratic ideals. Republicans and their Dixiecrat predecessors, after all, have spent one hundred and fifty years suppressing votes for a very simple reason: conservatives (and especially racists) lose elections in which turnout is high.
The other central strategy that Republicans have relied on, gerrymandering, is somewhat more difficult but not ultimately a problem. It is true that Democrats have engaged in their own line-drawing games (as the challenge to Maryland's congressional districts demonstrated last year), and it is also true that Democrats could go all-in on gerrymandering when they take power in 2021. But again, they do not need to mirror Republicans' cynicism. They can take the high road -- and remind everyone every day that they are taking the high road -- and win simply by undoing what Republicans have done without needing to do more.
The gerrymandering issue, however, is a reminder of another element of the Republicans' radicalism and willingness to destroy norms. Until this century, it was a given that redistricting would immediately follow the Constitution's required decennial census, and then we would live with those districts for the ensuing ten years. Former Republican House Majority Leader Tom DeLay changed that, however, by initiating an off-year redistricting scheme in Texas that switched a large number of seats to the Republicans. Why did he do that? Because he could. Norms go away when someone with power finds them inconvenient.
And that brings us to the big enchilada: the judiciary. (I note as an aside that radical Republicans also inflicted major damage on Congress itself, with Newt Gingrich all but destroying the committee system and his successors adopting the "majority of the majority rule" that gives power to a minority; but those matters are too far afield for this column.) What can be undone in terms of the Republicans having packed the courts? Not much, I am afraid, and all of it is deeply problematic and involves further norm-busting.
During the ghastly mess that resulted in Brett Kavanaugh becoming a Supreme Court Justice -- side note: both Kavanaugh and Neil Gorsuch should have asterisks permanently added to their titles, Justice* Kavanaugh and Justice* Gorsuch -- there was some discussion about the possibility of impeaching Kavanaugh after the Democrats retake the Senate. Predictably, the conversation quickly moved to the next Trump tweet, but the possibility was at least raised.
It is certainly true that plenty of Democrats would tut-tut and say that they cannot imagine breaking the norms that have governed impeachments, and for good reason. No one wants to move toward a world in which the courts are constantly being reshaped by day-to-day political battles. But what is the alternative?
Former Attorney General Eric Holder made news recently by talking seriously (as have some others) about adding seats to the Supreme Court. If we cannot remove Gorsuch and Kavanaugh, after all, maybe we can add two justices to counterbalance them. Predictably, The Washington Post's news article was anything but neutral, with the headline describing this as a "court-packing" plan and saying that it is "a new frontier for presidential candidates looking to display their liberal credentials." Somehow it is a lefty plot to pack the courts?
In response, the reliably pearl-clutching Post reporter Aaron Blake claimed that the Democrats' timing was wrong, because "it would seem Republicans are more likely to gain that kind of control in the coming years. And if they think Democrats are just going to do these things, why not beat them to the punch?" Right, because Republicans only stole Merrick Garland's seat because they feared that Democrats would do it to them first. Otherwise the Republicans would have exercised restraint, because they would never think of playing dirty on their own.
Seriously, however, the problem goes beyond the Supreme Court. Senate Majority Leader Mitch McConnell famously refused to give Garland a hearing (much less a vote), and he held open as many lower court seats as possible during Barack Obama's presidency and is now frantically filling them during Trump's. Again, what can the Democrats do in response to this? (1) Impeach some of those judges, (2) Add judges, or (3) Live with an illegitimate judiciary, on the theory that "We don't stoop that low, and this will just spin out of control." (Note that the Republicans' new justices and judges would surely block much of H.R. 1 and the Democrats' other electoral reforms.)
The point is that the die has already been cast, and there are now only terrible choices. I once described a possible response to McConnell's stonewalling of Garland (although I cannot find the link to that column right now). Beyond the ridiculous claim that he was allowing "the people" to decide who should be the next Supreme Court justice, McConnell's argument was simply that the Constitution's provision giving the president the power to nominate judges did nothing to require the Senate to vote on the nominations. He had the power to prevent votes, and he wielded it.
What could Obama have done? Nothing in the Constitution tells us what the "advice and consent of the Senate" actually means, so why not say that it means that the Senate can be deemed to have consented to a nomination by refusing to offer its advice or take a vote?
Sound radical? Of course it is; but where are we now? The Democrats played nice and let the Republicans steal the seat, and perhaps the Democrats had no choice. After all, the public reaction to such a move probably would have doomed the Democrats in the 2016 election. Again, however, where are we now?
As shocking as it would have been for Obama to make that play, the Democrats two possible actions going forward -- impeachment and adding justices and judges -- are shocking, too. The problem is that there is no going back. Once everyone realizes that what looked like a barrier was not a barrier at all, they cannot count on Republicans to play by the rules.
If Democrats do try any of these things, we can count on Republicans to scream bloody murder. McConnell, after all, responded to H.R. 1 by saying that it was a "power grab" by Democrats, which simply takes for granted that Republicans' decades of power grabs are somehow the baseline. And the mainstream press will continue to run silly analyses like those Post pieces that I noted above.
That merely means, however, that the Democrats might be completely boxed out by the Republicans' shamelessness. Unlike the story with voting and districting, the Democrats simply have no path forward on the courts that is not in some sense radical and norm-breaking. That, however, is not their doing. They have no better choices, thanks to the Republicans. As I said, optimism becomes pessimism rather quickly.