Monthly Archives: September 2020

The Battle over Justice Ginsburg’s Seat

First of all, we need to review some well-understood basics: ¬†Democrats want there to be more liberal justices on the Supreme Court, and Republicans want there to be more conservative justices. ¬†That reality is very simple. ¬†It fits in with the fact that members of each party want their respective party to be in power in all branches of the government. ¬†On that level, it could be said that it’s all about power.

Of course, ideology fits in with power, because each party has a set of ideological beliefs, and members of each party tend to believe that their party’s ideological beliefs are absolutely right. ¬†What is more, they also believe that their ideological beliefs represent “the will of the people,” even when that notion is contradicted by the polls, because both parties have their ways of explaining away each other’s popular support.

With regard to ideology, Democrats want the right to an abortion to be secure in all 50 states, they want Obamacare to stay in existence even while one key part of it has been repealed, and they want a host of other policies associated with the word “liberal” to prevail. ¬†Republicans want otherwise. ¬†So members of each party feel justified in their efforts to influence the ideological configuration of the Supreme Court

But there’s a really big question today: ¬†How are the Republicans able, now, to justify confirming Trump’s choice for the vacant seat on the Court after what they did in 2016? ¬†It should be remembered that back in 2016, when Justice Antonin Scalia died in February, the Senate Republicans refused to hold confirmation hearings for Obama’s choice to fill that vacancy. ¬†Their stated justification at the time had nothing to do with parties: They said that because it was an election year, it should be left to the new president to fill that seat the following year. ¬†Senator Lindsay Graham actually said “use my words against me,” referring to precisely the scenario that we have now. ¬†Here he is on video.

But this year, Lindsay Graham and the other Republicans don’t seem worried about having their words used against them or seeming hypocritical. ¬†How do they justify this: ¬†Mitch McConnell, the Senate Majority Leader who led the refusal to consider Obama’s choice in 2016, justifies his current actions by interpreting the 2018 midterm elections, in which the Republicans kept their majority in the Senate (though they lost it in the House), as a vote of approval for having the Republicans decide who should be on the Court. ¬†Article in Politico, September 21, 2020.

What also needs to be remembered is that the Republicans have a whole other way of justifying their efforts to control the Court:  They regard conservative justices as more faithful to the Constitution, and regard liberal justices are tending to disregard the Constitution and just make up any laws and case-law doctrines that they feel like making up.  They thus feel that they are protecting the Constitution by doing all the maneuvering it takes to maximize the number of conservatives on the Court.  This point comes through in the remarks of Ted Cruz, in an interview with Steve Inskeep on NPR Tuesday morning, September 29, 2020.

But no matter how your spin it, it is really hard to dispute that the Republicans in the Senate are not holding to the position they claimed to take in 2016. ¬†It can be said that the Democrats have flip-flopped as well, but really, all the Democrats are doing is asking the Republicans to follow their own precedent. ¬†It should also be noted that Scalia died ten months before the election of 2016 and that Ginsburg died just six weeks before the formal date of this year’s election.

It’s about power, but both parties consider themselves justified in claiming that power and doing whatever it takes to get it and keep it.

Final note: ¬†You should also be paying attention to the stories about the specifics with regard to Trump’s choice, Amy Coney Barrett. ¬†To put it in brief, she is exactly what the conservatives want and everything the liberals don’t want.

Why I Can’t Be Neutral about Trump

I have taught this course for years without bringing my political opinions into it. ¬†There have been occasions when I had a class meeting on election day after I had voted, and when I walked into the room and a student asked me whom I had voted for, I replied “I don’t remember.” ¬†I have had no problem at all with talking about the Democratic and Republican parties as representing coherent visions and ideologies, describing each of them in detail while giving no clue to how I felt personally about any of it.

Trump is another story. ¬†And I do not consider this to be “political opinion.”

It’s not about the difference between conservative and liberal. ¬†It’s not about whether I agree or disagree with Trump’s policies. ¬†It’s about the minimum standards of conduct that we, as Americans, have a right to demand of our leaders, of which Trump falls far short. ¬†And I am going to focus here on just one aspect of Trump’s conduct that in my view–my professional opinion, not just my personal political opinion–disqualifies him from being treated like any other president in terms of attempts to be even-handed and so-called “objective,” and that’s his encouragement of hatred toward journalists as people.

First of all, two things that are constant even when things are normal are: ¬†(1) no president has ever enjoyed being held up to critical scrutiny by the press, and there’s nothing abnormal about the president expressing annoyance at the press, and (2) conservatives have claimed for decades that there was a liberal biased media establishment that was working against everything conservative. ¬†What is more, since conservatives have a way of conflating their ideologies with being pro-American and casting liberals as being less so, there’s nothing abnormal about conservatives calling the media unpatriotic and anti-American.

But all of that is about “the press,” and all of that involves criticism of the behavior of the press. ¬†That’s completely different from what Trump has done. ¬†Trump has called reporters–who happen to be his fellow citizens, which means it’s his job to function as their president whether he thinks they like him or not–“enemies of the people.” ¬†That’s not criticism of the press and its behavior; that’s encouragement of hatred against journalists as people. ¬†And some of Trump’s critics have understandably suggested that this encourages dictatorial regimes worldwide to engage in retaliatory violence against journalists who give them a hard time in print, as with the murder of journalist Jamal Khashoggi by the government of Saudi Arabia two years ago.

Now, the thing that has inspired me to make this post today is, I have just learned that Trump called it “a beautiful thing” that a reporter covering a protest in Minneapolis this past May was struck in the knee by a rubber bullet fired by a police officer. ¬†Here’s the story on Yahoo! News.

Even if you can make a case that the media has been extra-critical of Trump, even if you can make a case that the media has behaved unfairly toward him, calling reporters enemies of the people and expressing delight in a particular journalist suffering pain is beyond the pale of what anyone worthy of the office of the president would ever do. ¬†And for that reason, it would be dishonest of me, for the sake of some lofty ideal of “objectivity,” to pretend that, as a historian and an instructor of history and government, I do not see a very serious problem with Donald Trump being president, a problem that goes way beyond anything that can be called “political opinion.”

And I have nothing to hide, when it comes to this.

Ramping Up the Tension

When things are normal, in a presidential election year, the two parties accuse each other of all kinds of sinister motives, but then the voters vote, the results are announced, and the party that loses makes plans and resolutions to do a better job of campaigning for the next one. ¬†Even after the election of 2000, when the result was in dispute, the only sign of it was some protest marches, after which life went on. ¬†I wouldn’t count on that this year, though, because things aren’t normal.

Before we even get to the issues, two things need to be noted about this year’s presidential election. ¬†First, it is likely to be decided by razor-thin majorities in a handful of battleground states. ¬†Most decisive are Pennsylvania, Michigan, and Wisconsin. ¬†Also of interest here are North Carolina and Arizona. ¬†Trump will probably win Ohio; it’s not quite as competitive a state as it was a decade ago, but it’s significant. ¬†And then there’s that nettlesome state of Florida, the state that the big fuss in 2000 was all about. ¬†The conventional wisdom is that Trump has to win Florida to win the election, and if Trump does win Florida, Biden has to win Pennsylvania, Michigan, and Wisconsin. ¬†And it needs to be said again that the margins in those states will probably be razor-thin.

And that brings me to the second key fact about this year’s election, which is that because of the pandemic, an enormous number of voters will be voting by mail. ¬†Trump says that’s going to create massive fraud. ¬†While there is no evidence to support that claim, there’s a whole other problem with mail-in voting: thousands of ballots end up being disqualified because of procedural mistakes voters make on them, like neglecting to sign them. ¬†And some states require more than just a signature.

Those two facts–razor-thin vote spreads and disqualification of some mail-in ballots–add up to a strong possibility that there will be major disputes over the returns in several different states. ¬†It may even make the battle of 2000 look like a love fest. ¬†To say that people will be taking to the streets is probably putting it mildly.

And now for the issues.

At first, it looked as if the election was going to be a referendum on Trump’s handling of the COVID-19 crisis, which would have worked largely in Biden’s favor. ¬†But then the BLM-related protests began, not entirely peaceful, and Trump was able to make “law and order” the center of his campaign, playing to suburban fears. ¬†(The calls to defund the police didn’t do the Biden campaign any favors, as conservatives try to link Biden with that demand even though he’s far from being behind it.) ¬†And all that was before Supreme Court Justice Ruth Bader Ginsburg died. ¬†Now, the focus of the campaigns has changed yet again.

It should be remembered that in February of 2016, when conservative justice Antonin Scalia died, Senate Majority Leader Mitch McConnell announced right away that there would be no confirmation hearings that year for any candidate whom President Obama might nominate to fill that seat, but rather, the Republicans were going to wait till after the election and let the new president fill that seat. ¬†His argument was that it was “too close to the election.” ¬†Is McConnell applying that rule this year, with the opening of the vacancy being a lot closer to the election? ¬†Of course not. ¬†What he’s saying now is that when the American people voted to keep the Republicans in the majority in the Senate in 2018, they voted for the Republicans to keep the liberals in check and to honor President Trump. ¬†So from his point of view, the Republicans will be honoring the will of the people by letting Trump fill this vacancy. ¬†Needless to say, the Democrats think otherwise.

There are currently 53 Republicans and 47 Democrats in the Senate. ¬†That means that the Democrats need 4 Republicans to join them in their refusal to confirm a Trump nominee. ¬†At present, they have 2: ¬†Susan Collins of Maine and Lisa Murkowski of Alaska. ¬†The next one they hope they can get on their side is Mitt Romney, the one Republican senator who is openly and consistently anti-Trump. ¬†That would bring the number of Republicans on Trump’s side down to 50, in which case Vice President Mike Pence, in his capacity as president of the Senate, would cast the tie-breaking vote. ¬†So the Democrats need Mitt Romney plus one more Republican senator, along with Collins and Murkowski, to stop Trump from filling that position (article in Politico, September 19, 2020).

Trump has announced that he will be nominating a woman for the job. I don’t envy whatever woman he nominates; she will inevitably be eaten alive by vultures if any flaws in her character and background can be found at all. ¬†But the big thing I’m getting at is that tensions are abnormally high at the moment, and they just got higher. ¬†Whatever the outcome of the election ends up being, we will be lucky if we don’t see something approaching civil war. ¬†We do, after all, have a degree of partisan tensions greater than what it has taken to spark civil wars in other countries around the world. ¬†That’s what made the remarks last week of Michael Cupoto at HSS, remarks to the effect that Trump supporters should stock up on guns and ammunition because the Biden supporters were already do that, no laughing matter (Politico article, September 15, 2020).

For a lot more detail on what’s going on with this, you should check out the Politico website. ¬†Also, here’s a story on NPR from Saturday morning, September 19, about Ruth Bader Ginsburg’s career and her legacy for women’s rights, as recounted by longtime Supreme Court journalist Nina Totenberg.


Justice Ginsburg Has Died

Justice Ruth Bader Ginsburg has died at the age of 87.  What this means is that the Supreme Court, which up until today had five Republican appointees and four Democratic appointees, is now going to have six and three no matter who wins the presidential election and no matter which party has the majority in the Senate at the start of the new year.  What is more, it is a safe bet that the new justice is going to be an ultraconservative, especially on the subject of abortion.

It should be remembered that in the spring of 2016, when conservative justice Antonin Scalia transitioned to that great courthouse in the sky, the Senate Republicans refused to hold confirmation hearings for President Obama’s nominee, on the grounds that because it was an election year, the new president (who they hoped would be a Republican) should make the choice.¬† Conservatives nationwide justified this action on that basis.¬† Now, given that the Republicans still have a majority in the Senate, does anybody seriously think that Mitch McConnell is going to say “Well, we’d better follow our own rule, and let the next president fill this seat”?¬† I doubt it.

You can expect to see the Democrats try to delay the confirmation of a new justice for as long as they can, but the only way they can truly block it is to leave Washington completely and attempt to deprive the Senate of a quorum, but if they do that, if all of the Republicans show up, there will still be a quorum (50% minimum), and if a quorum doesn’t materialize, no legislation will get passed, including COVID-19 relief, so that’s not an option.

Thus, by the end of this year, the conservatives are going to outnumber the liberals on the Court six to three.

In retrospect, Justice Ginsburg might have done well to retire in the summer of 2014.  Obama was still president, and the Democrats still had a majority in the Senate.  There was no way of knowing for sure that the Democrats would lose their majority in the Senate that year, but it was certainly a clear possibility.  But, we can only deal with the reality that we have, and the reality that we have is that Justice Ginsburg has died, and Trump is going to be choosing her successor with a Republican Senate to confirm her.

Article in Politico, September 18, 2020