We are forty days and nights from Election Day and I weep for America, land that I love.
We are a people separated by enmity, geography, ideology, technology, and machine learning such that mutually assured destruction is both a nuclear and political reality. We gather in our mutually exclusive enclaves to create mutually exclusive echo chambers to assemble mutually exclusive facts to render increasingly extreme conclusions in an increasingly divided America.
We are story-driven creatures and each political side today has a carefully-supported narrative of grievance to justify their positions and actions. Each side thinks the other is illegitimate and evil. Each side thinks the other fights dirty and harder. And each side thinks they are losing.
That is the context in which – because 2020 – there is a Supreme Court vacancy after voting in a presidential election has begun.
That’s the focus of this week’s TBL.
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As a 21-year-old law student in 1978, studying Constitutional Law with one of America’s great scholars of our nation’s most important legal document, Roe v. Wade was five years old. When we studied Roe, which found protection for abortion rights on account of a privacy right discovered by the Supreme Court of the United States pursuant to the “penumbras” of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, I was astonished to learn how readily scholars then – most of whom supported the policy established by the case – overwhelmingly rejected the Court’s legal analysis.
Those scholars included Ruth Bader Ginsburg.
Constitutionally, Roe was a classic failure of judicial restraint. The Court exceeded its authority to pretend that the desired policy rose to the level of constitutional right even though nobody could explain where that right was located in the Constitution or how it had come about. Obviously, it has remained contentious ever since.
Because the Court became a center of policy, every election features a fight for “control” of the Court and every confirmation of a Supreme Court justice is a deathmatch. The supposed “rules” of the contest are always at issue even though the Constitution merely provides, in Article II, section 2, that presidents nominate judges subject to the advice and consent of the Senate. There are no other rules.
Each party blames the other for the impasse, of course, but most often, the Democrats initiate changes to the “rules” before the Republicans beat them at their own game. From the last quarter of the 19th through most of the 20th Century, the qualifications test for the Supremes was essentially an objective one, with approvals being granted overwhelmingly.* That all changed in 1987.
Immediately upon President Reagan’s nomination of Robert Bork to the Court, Sen. Edward Kennedy objected, even though Bork had been unanimously confirmed to the Court of Appeals just five years earlier.
“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
Bork replied, “There was not a line in that speech that was accurate,” and he was entirely correct. He was also obviously qualified, having been a renowned legal scholar, a law professor at Yale, and Solicitor General before going on the bench.
Democrats were simply afraid that an intellect as powerful and creative as Bork’s would do real damage to their vision of the Supreme Court. But the challenge worked, and the Supreme Court confirmation process was dramatically changed. “Bork” became a verb.
As Democratic activist Ann Lewis explained, if the Bork hearings “were carried out as an internal Senate debate, we would have deep and thoughtful discussions about the Constitution, and then we would lose.”
To be clear, the Senate unquestionably has the power under the Constitution to reject a Court nominee for any reason or no reason. Analysts on the left, like Jeffrey Toobin, thought it was worth doing solely for ideological reasons. Having the requisite power was all that mattered.
Bertrand Russell explained it as follows.
“In the absence of any standard of truth other than success, it seems evident that the familiar methods of the struggle for existence must be applied to the elucidation of difficult questions, and that ironclads and Maxim guns must be the ultimate arbiters of metaphysical truth.”
As Jonah Goldberg pointed out this week, if all that matters is power, prudential arguments are merely spin serving as window dressing. Debates over “should” are for weaklings and suckers.
Senate Republicans continued to play by the old “rules” for two decades. They joined Senate Democrats to confirm Ruth Bader Ginsburg 96–3, and Stephen Breyer 87–9.
When Senate Democrats began to filibuster President George W. Bush’s lower-court nominations in 2005, Republican senators considered using the “nuclear option” to abolish judicial filibusters but elected not to. A bipartisan “Gang of 14” reached a compromise instead.
However, just eight years later, with the Democrats back in power, Sen. Harry Reid led Senate Democrats to detonate the nuclear option, allowing three additional Democratic appointments to the D.C. Circuit, widely and rightly considered to be the second most important court in the land.
Republican Leader Mitch McConnell’s response was ominous: “You’ll regret this.” Over 200 judicial nominations under President Trump made possible by Reid’s rule change later, Democrats surely do. When Leader McConnell and Republicans extended the new rule to Supreme Court nominations in response to a filibuster threat over Neil Gorsuch’s elevation to the Supreme Court, his and Brett Kavanaugh’s confirmations became possible.
It is important to note that both sides are at fault and badly at fault, especially within the broad historical context, while emphasizing that they are far from equally at fault, especially within the current context. As Chris Rock said (and he’s largely right), “Republicans tell outright lies. Democrats leave out key pieces of the truth that would lead to a more nuanced argument. In a sense, it’s all fake news.”
Republicans anxious to say their problem all along has been playing too nice are surely crazy but Democrats sanctimoniously calling for narrowing an alleged “ruthlessness gap” have a least a screw loose (or two), too. Each party’s base is convinced the other side is strong and tough while their side is too accommodating and afraid of some tut-tutting in the op-ed pages of The New York Times. Each side is convinced that whatever their sins, the other side would have done the same (or worse) had the shoe been on the other foot.
They are all wrong.
Within that context, the Republican refusal to act upon President Obama’s nomination of Judge Merrick Garland in 2016 was an unprecedented but logical extension of the politics of Supreme Court nominations – it was simply a question of political power and will. “When you have the votes,” Mr. Trump explained, “you can, sort of, do what you want as long as you have it. So now, we have the presidency and we have the Senate, and we have every right to do it.”
Republicans will replace RBG while President Trump is in office because they can.
There’s also this: despite all the posturing about inevitable electoral victory, Republicans are afraid. That’s because 62 percent of Americans say the winner of the election should pick the next Supreme Court nominee and Joe Biden leads the national polling average by +7 points (it’s no wonder the president wants to suppress the vote – the fewer people vote, the less representative polling samples are likely to be). Sen. McConnell, he of the “one true credo: Leave no judicial vacancy behind,” wants to get his justice while the getting is good.
We’re looking at a preemptive strike in a war that looks more and more like what James Madison described as “violence of faction.” It is a war that continues to escalate.
Progressives are proposing a variety of bold options in response, dependent upon their taking back control of both houses of Congress and the presidency in January. These include adding additional seats to the Court, granting statehood to the District of Columbia and Puerto Rico, ending the filibuster altogether, banning partisan gerrymandering, and expanding lower courts (and judges) on pace with population growth. Some even argue that Democrats should simply ignore the Court and deny the efficacy of judicial review as “a cynical power grab” in 1803 by original Chief Justice John Marshall in Marbury v. Madison.
“Let me be clear,” Senate Minority Leader Chuck Schumer said on Saturday, “...nothing is off the table for next year,” assuming Democrats win back the Senate in November, as they are favorites to do. Rep. Jerry Nadler, House Judiciary Chairman, was more straightforward: If Mr. Trump’s nominee is confirmed before a new Senate and President can take office, the incoming Senate should immediately move to expand the Supreme Court” (which Mr. Biden has opposed).
Those threats allow Republicans (sort of) plausibly to claim that since Democrats only care about power, they have to play that way, too.
Contrary to the expectations of the Founders, American politics has increasingly moved away from compromise and the art of the possible. It has become much more about ideological purity, institutional takeovers, and charismatic saviors. Our nation is now much less religious about religion and much more religious about politics.
Wide and deep diversity (of any and all sorts) need not lead to division. But it can, especially where and when politics is the dominant driver of our culture and where that politics is defined not by what you believe in but, rather, by who and what you hate and reject.
For example, 55 percent of Republicans say Democrats are “more immoral” when compared with other Americans; 47 percent of Democrats say the same about Republicans. Majorities in both parties say those in the opposing party do not share their values and goals. Among those highly engaged in politics, fully 70 percent of Democrats and 62 percent of Republicans say they are afraid of the other party.
America is increasingly dominated by a political nihilism whereby actions don’t have consequences, truth is no different than lies, the act of offending the sensibilities of the political class is an end unto itself, and success is its own justification.
Since the turn of the century, every president’s legitimacy has been aggressively challenged by members of the opposing party. Both presidential candidates today have asserted that the other is trying to rig the election (even if only one uses that word). Whoever wins in November – even assuming there is something like a clear winner – will be deemed illegitimate by the other side.
Ronald Reagan described the orderly transfer of power in America as “nothing less than a miracle.” It may be a miracle on life support.
On Wednesday, the president said he wants to seat a new justice as quickly as possible because he thinks the election “will end up in the Supreme Court,” and “I think having a 4-4 situation is not a good situation.” Asked if he would commit to a peaceful transfer of power if he loses, Mr. Trump demurred. “We’re going to have to see what happens,” he said. “I’ve been complaining very strongly about the ballots. And the ballots are a disaster.”
As the saying goes, when people show you who they are, believe them.
Political nihilism and Donald Trump are perfectly suited. In this instance, correlation and causation match right up.
As I’ve said before in another context, we can take the nihilists (Warning: Very NSFW).
We must take the nihilists.
Republican government (not the party), more than any other form, relies upon the virtue of the people and their leaders. George Washington cautioned us, perhaps prophetically, that no constitution, however wisely designed, can protect a people against tyranny or conquest if it weakens itself by unchecked “corruption of morals, profligacy of manners, and listlessness for the preservation of the natural and unalienable rights of mankind.”
There is a requirement of good faith and fair dealing built into contract law. Good faith is entirely optional in politics. It is honored mainly in the breach.
It is no coincidence that, other than black swan (tail) risk, which is unforeseeable by definition, political risk is the hardest risk to quantify and deal with in finance. It is also freakishly difficult to identify. Usually.
Not today. Political risk is in plain sight and flashing red.
Somebody – some group of somebodies – needs to stand-down and de-escalate today’s political MAD. Those somebodies will need to come from the Republican side even though there is plenty of blame to go around. That is both because the GOP is in power and because Donald Trump is their guy.** We need them to stand up in opposition to a nihilistic president who is an existential threat to the republic.
There are multiple reports every day of Republicans who understand exactly how dangerous President Trump is who refuse to say it out loud or to follow the logic of their understanding. It’s most of them, or so it seems.
They fear for their careers, I get it. Mr. Trump might lose in November and the problem may dissipate on its own. But, those excuses aren’t good enough. If the good of the country isn’t reason enough, how about saving the GOP? We need someone to dare to be a Daniel or an Esther, to speak up, and then actually do something brave. And then we need others to follow, even at the risk of failure.
“Strength! Courage! Don’t be timid; don’t get discouraged. God, your God, is with you every step you take.”
* The primary exception is John Parker in 1930, rejected for overt racism. Clement Haynsworth and Harrold Carswell were rejected in 1969-1970 — Haynsworth wrongly; Carswell correctly. Carswell was defended by claiming that mediocre people deserve representation, too. Abe Fortas was not elevated to Chief Justice in a significant counterfactual.
** Some have suggested a deal trading the current open Court seat for a commitment not to pack the Court, but it’s probably too late for that. The primary objection to that idea was that it doesn’t make sense for the GOP to give up something so valuable (the seat) for something (court-packing) so unlikely to happen. Okay, but it’s not really a Flight 93 election if Democrats won’t be able to do what Republicans are so afraid of them doing.
Totally Worth It
All of this is great, and the political analysis of section 2 is brilliant. If you are at all interested in poker, game theory, or both, read this. Rolling Stone has re-ranked the 500 greatest albums of all-time. This is okay, but what they plan to do with it is an outrage and will be bad for baseball. The funniest thing I saw this week. The second funniest. The most remarkable. The coolest, unless it was this. The most amazing. This is evil. This tweet is not from The Onion. RIP, RBG.
For Such a Time as This
In the financial world (and beyond – check out next week’s TBL), the ability to think and act with a long-term perspective is the best indicator of success. The problem, of course, is that none of us lives in the long-term. We are always in the urgent now with all kinds of stuff clamoring for our attention and our lives. Those things aren’t necessarily wrong. Indeed, they are often very good. But they distract us from our long-term goals and opportunities with depressing regularity.
Since Econ 101 teaches and demonstrates unequivocally that incentives work, here’s another incentive (adapted from Tim Miller) for someone to take a leap of faith to try to put a stop to political MAD and its ladder of escalation.
Consider the new adults being “made” this year by turning 21. They were born in 1999. Their prospects are not great.
Two of the three presidents in their lifetime were elected by a minority of voters. The only one who was twice elected with a majority vote had his legitimacy questioned constantly both before and after he became president. By a racist conspiracy theory. By the reality TV guy that ended up succeeding him. The twice-elected-with-a-majority guy was denied the opportunity to nominate a Supreme Court justice based upon a raw display of political power “supported” by shaky arcana and sophistry that these newly minted adults overwhelmingly (and rightly) think is largely political bulls***.
The president they know the best has a complete disregard for the rule of law, institutions, and political norms, received about 3 million fewer votes than his opponent, had the help of a foreign enemy, was impeached for soliciting illicit foreign help again, and not removed from office. He’s unfocused, with a terrible TV habit. He’s addicted to social media and attacking his perceived enemies in embarrassing fashion.
Bob Woodward’s interviews with President Trump’s advisors reveal that the people closest to the president day-to-day think he is “dangerous,” lazy, “unfit,” compromised by Putin, “rudderless,” and has an attention span that is a “minus number.”
That’s the context in which Donald Trump did exactly the thing that his party said the black president who had actually received a majority vote couldn’t do in an election year.
Pretty much every peer of these hypothetical 21-year-olds is looking for a job in one of the dynamic, largely blue cities where almost all the growth is in this country – COVID-19 notwithstanding. But, because these areas are so blue, these new adults’ votes are pretty much irrelevant, at least at the national level, even if they bother to vote.
In the Senate, Republicans hold a majority of the seats representing states that make up a minority of the country despite having gotten far fewer votes than minority party senators got. Nate Silver tells them that for Joe Biden to be assured of winning the electoral college he needs to win the popular vote by about five percentage points.
They recognize those are the rules but think it’s beyond crazy even before factoring in that they overwhelmingly reject the current president and current GOP policy (which is now admitted to be merely anything the president wants). Is it any wonder so many of them want to burn the whole thing down?
These new adults are demanding and are going to demand change. That reform can come the right way, respecting our norms, processes, and basic fairness. Or, it can come from two increasingly lawless and nihilistic parties who care only about owning the other by any means necessary.
Which America will be better for these new adults? Our kids?
Which America will be better for any of us?
Why not think longer-term and take some difficult risks now in the interest of the future?
It will be hard to “blink” first and challenge the president. Whoever leads it will be branded a squish and a RINO. It will be ugly. It may fail. It will probably fail.
But it needs to be done.
The night Judas pointed an angry mob toward Jesus in Gethsemane so they could arrest him, Peter drew his sword and sliced off the ear of the high priest’s servant. He was battling the enemies of Jesus but earned a rebuke (“Put your sword back where it belongs!“) from the very Lord he wanted to help. Peter’s panic in the face of fear must have felt like clarity.
Lots of political swords (and Maxim guns) need to be put away today. The Bible says so and suggests an opportunity for greatness, despite the risks. We need courage as much as we’ve ever needed it.
“[I]f you remain silent at this time, relief and deliverance…will arise from another place, but you and your father’s family will perish. And who knows but that you have come to your…position for such a time as this?”
We should all pray – or devoutly hope if you do not pray – that now is just such a time.
Contact me via rpseawright [at] gmail [dot] com or on Twitter (@rpseawright). Don’t forget to subscribe and share.
Thanks for reading.
Issue 31 (September 25, 2020)