by Neil H. Buchanan
Jamelle Bouie, a liberal/progressive columnist for The New York Times, wrote a thoughtful analysis today describing how Democrats can respond to the Republicans' decades-long strategy to stuff the courts with hard-right radicals. I recommend reading the entire piece, but I will quote here only the last two paragraphs:
"I have no doubt that Republicans will confirm Barrett, if they can manage it. If the past four years have been a smash and grab, where Trump smashes our institutions and the Republican Party grabs as much political loot as it can carry, then an additional seat on the Supreme Court is too valuable a trophy to give up. But there is no rule that says you get to keep stolen goods, and the Barrett seat — like the Gorsuch seat — represents a theft.
"If Democrats make Republicans pay a political price in November for their rank and ruinous opportunism, then in January they should use their power to restore to the people what was taken from them."
Nowhere in that article does Bouie refer to what Democrats might choose to do as "court packing," yet the headline of the column screams: "Court Packing Can Be an Instrument of Justice." Heck, even the URL for the piece includes that provocative term, even though Bouie never once uses it in his piece: https://www.nytimes.com/2020/10/09/opinion/court-packing-amy-coney-barrett.html.
Having at times had my headlines changed in unaccceptable ways by an editor who then refused to budge, I know that Bouie is unlikely to have written, approved of, or even been aware in advance of the headline that would introduce his work. And that is the point, because when headlines are written by anonymous editors, hidden biases and unexamined assumptions are revealed.
Indeed, The Times on the news side (not op-eds) has taken to referring routinely to this set of issues as "court packing," as if that were merely a descriptive term. Similarly, in an otherwise nonpartisan description of Mike Pence's decision not to mention abortion during the non-debate this week, The Washington Post's David Byler casually tossed off this line: "Pence was free to quickly attack Biden and Harris as extreme on reproductive rights and move on to a longer, more memorable exchange on court-packing."
News sources are now reporting that possible Democratic moves to change the courts starting in 2021 do not poll well, which is no surprise. Everyone knows that court packing sounds unseemly. What Democrats would be doing, however, is unpacking the judiciary, attempting to undo years of Mitch McConnell's packing of both the lower courts and the Supreme Court by any means necessary.
In part, this is merely a specific example of the old adage that "if you can name it, you can own it" in politics. My concern today, however, is not that Democrats have too passively accepted the losing rhetorical position (although they clearly have) but that supposedly objective news sources all too often accept Republicans' versions of issues -- not just in labeling but in understanding the issues substantively.
Let us start with the an existential crisis facing the country today: Will Donald Trump and the Republicans be able to steal the election by making false claims of ballot fraud, pushing their own people into the Electoral College, and possibly having the House of Representatives install Donald Trump in office?
To be clear, this is not some fantastic conspiracy theory contrived by Democrats. Republican strategists are on the record that they intend to do this, and Trump has openly bragged about it for weeks. The problem is that none of it is even remotely legally viable under current law.
Readers who have been following this blog recently know, for example, that (per a brilliant column by Grace Brosofsky, Michael Dorf, and Laurence Tribe) the provision that allows "legislatures" to choose electors does not at all give Republicans in states with Democratic governors the ability to appoint their own electors. The law and precedent are rock solid against Trump. (Intuitive analogy: When we say that Congress has the power to appropriate funds, that does not mean that a President is somehow deprived of his role in the budgeting process.)
Similarly, the idea of having the House decide the election -- which, again, Trump is openly counting on -- is a bizarro-world reading of the Twelfth Amendment, as my Verdict column last week with Professors Dorf and Tribe explained. In a two-person election, only an actual tie vote in the Electoral College would send the decision to the House, which is not at all what Trump and his people are presuming to be true.
Yet a front-page (or, in a digital world, first on the app) news article in yesterday's Post, which purports to be a purely descriptive story about how lawyers for both parties are preparing for post-November 3 litigation, treats those Trump strategies as not even worth questioning in terms of their baseline legality. Democrats are, of course, gaming out how to respond to such lawless claims, but that is not at all the same as conceding that the Trump gambits are based on good law. They are, indeed, legally laughable.
At this point, however, I would honestly settle for a news story of the classic form: "Republicans say the sun will set in the East tonight, but Democrats are doubtful." The problem is not merely (a la "court packing") that the labeling war is being won by Republicans. The mainstream press is allowing the entire issue to be framed as follows: Trump and Republicans can do X and Y, so Democrats are trying to somehow stop them.
This is hardly the first time that the media has settled on a narrative that is disastrously wrong. Much of my writing over the years has focused on the federal budget as well as Social Security, and on both topics, reporters and headline writers who surely view themselves as not taking sides end up reinforcing a false narrative.
One of the best take-downs of the mindlessness of anti-deficit mania was offered by Ezra Klein, then of The Post, back in 2013: "For reasons I've never quite understood, the rules of reportorial neutrality don't apply when it comes to the deficit. On this one issue, reporters are permitted to openly cheer a particular set of highly controversial policy solutions."
If anything, those "highly controversial" policies -- cutting spending on social programs, especially Medicare and Social Security -- have in the ensuing seven years gone from controversial to indefensible. Indeed, the entire "deficits are obviously and unquestionably bad" mantra has taken a beating at the hands of reality. Even so, in April of this year I was tearing my hair out because of prominent news articles that treated anti-borrowing orthodoxy as the one true way to understand fiscal policy.
Again, we would have been better off even with the still-biased framing of the issue as "partisans disagree," but news reporters could not even get that far. Similarly, the media over the years has reflexively treated Social Security in the way that anti-government conservatives want to frame the narrative: an "entitlement" that might be well meaning but is unsustainable in the face of inexorable demographics, as proved by the looming bankruptcy of the Trust Fund. The "47 percent of the population pays no taxes" meme followed the same pattern. (Insert joke about Donald Trump's taxes here.)
Another important example: When the debt ceiling became a Republican weapon starting in 2011, the media immediately concluded that if Republicans had refused to increase the ceiling, then obviously President Obama would have had no choice but to cut spending, notwithstanding statutory requirements that he spend every dollar that Congress had appropriated.
Even people who disagreed with the Buchanan-Dorf analysis showing that the president would have been constitutionally required to maintain statutorily required levels of taxes and spending (and thus to issue more debt, notwithstanding the ceiling) should have been forced to admit that cutting spending was not the only possibility, but media coverage instead coalesced around the ironclad presumption that Obama would have had to accede to Republicans demands to cut more spending.
Thus, when Professor Dorf and I would make appearances even on non-hostile media to discuss the debt ceiling crisis, our interviewers would say things like: "Surely the President can't just blow through the debt ceiling, right?" The narrative had been set so firmly that even people who thought that the Republicans should not take the economy hostage nonetheless simply presumed that the Republicans could have forced Obama to do what they demanded.
To return to today's most pressing issue, supposedly liberal media sources such as The Washington Post have not bothered to question whether Trump's team is simply living in a legal fantasy land when it comes to the bases of their post-election strategies. That is s a problem.
Again, the most accurate and honest way to describe the situation is that Trump's team is building a strategy based on untested and unsupported legal theories that could only work if politically motivated courts ignore precedent and legal texts in order to give Trump a path to victory.
At this point, however, we are getting the election law equivalent of something like this: "Trump says that the words 'Congress shall make no law ...' in the First Amendment means that Congress is not allowed to pass any laws, so he's going to start issuing edicts, while Democrats are hoping that they can get the courts to soften some of Trump's edicts."
Narrative framing always matters. When it comes to describing a completely lawless power grab, it is essential not to accept as true any of the lawlessness involved. This is too important.