President Obama’s nomination of Merrick Garland as the replacement to Antonin Scalia was accompanied by this tweet from the White House.
That tweet was no errant message. When it comes to the rights of criminal defendants, Garland is no judicial liberal:
The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” in addition to seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand,” during the 13 years Garland had then spent on the DC Circuit.
Speaking of Garland’s position on criminal rights, Daniel Denvir reports that 41 percent of Obama’s nominees to the federal bench have been prosecutors. That stat comes from this eye-opening report from the Alliance for Justice, which claims that 86 percent of Obama’s appointees to the bench have been corporate attorneys or prosecutors. Far fewer of his appointments have been public defenders, at the state or federal level, or lawyers for nonprofits and related activities.
While Obama has done an admirable job of remaking the bench in terms of racial and gender diversity, the professional backgrounds and experiences of his appointees boil down to defending capital and the carceral state.
Apparently the White House never notified civil rights organizations of Obama’s decision to nominate Garland. Those organizations are now understandably concerned.
I read that discontent as a preview of what will happen if Clinton wins the nomination and is elected in November. As different groups who have not done particularly well under the neoliberal Democrats start regaining a sense of their own power and, as a result, start feeling, in a deep way, how little they’ve gotten from the Democratic Party these last several decades, the tension between those groups and the party leadership will grow.
The contest between Clinton and Sanders has been extraordinarily productive for all groups, whether they support Clinton or not, because it’s given people a taste of what they can do and a clarifying sense of what they haven’t got.
We’re heading for a showdown; Sanders is just one of many signs of a growing discontent. This is why, no matter what happens in this campaign, I’m actually hopeful about the future.
There are two types of political people in this world. One types finds the games and strategies set out in the speculation above to be exhilarating and exciting. The other finds them enervating and exhausting.
The first types includes all those people who, once upon a time, would whisper, excitedly, to each other about all the goings on at court: what did the king’s adviser do today? What did the queen’s lady say yesterday? Why was that duke wearing that robe? What did the Earl of Null mean when he said whatever nothing he said?
If you want to understand the particular spirit of lawlessness, the contempt for rules and norms that is Donald Trump, you have to go back to the illegitimacy of the 2000 election, the GOP turn to the filibuster-proof majority as the operating rule of congressional action, and now the Republicans’ declaration that they simply won’t vote on Obama’s Supreme Court nominee, whoever it may be. (I’d add the Iraq War as part of this buildup toward lawlessness.)
The only conclusion that Waldman doesn’t draw is that Obama’s defenders and supporters are now playing into this game. Almost all of the discussion around the Garland nomination accepts as an uncontested, uncontroversial premise that the Republicans will not vote on this candidate.
The only question up for grabs is whether Obama has outsmarted them, either forcing them to vote on Garland after November or perhaps then, after November, pulling the Garland nomination in anticipation of whoever the Democratic victor is, backing them into electoral defeats, and so on.
In all the analysis of the eight-, twelve-, twenty-dimensional chess, no one seems to have noticed that the first move — simply refusing, in defiance of all precedent and constitutional norms, to consider a nomination of a sitting president — has been instantiated as a legitimate mode of governance.
And speaking of strategy, what is with this strategy anyway? A lot of people think Obama is now trying to make the GOP look terrible so that all those Republican senators who are up for election in November will be made more vulnerable.
Let’s set aside the obvious problems with this strategy: it will turn the entire nomination process into nothing but a pure procedural squabble (“The Constitution requires you to vote on the nominee! “No it doesn’t!” “Yes it does!”) sauced by a heavy dollop of horserace commentary (“This will be help the Democrats in November.” “No, it won’t.” “Yes, it will.”)
The bigger problem is: there doesn’t seem to be much precedent in American electoral history for a candidate to federal office being defeated because of how he or she voted (or didn’t vote) on a Supreme Court nomination.
There is the precedent of the Anita Hill hearings, in which a number of women were elected to Congress because the men in the institution had demonstrated that they just didn’t get it. But that seems slightly different to me; it had little to do with how a specific legislator voted on Thomas’s nomination.
The big question now on the table is how to stop Donald Trump. Last Friday, protesters in Chicago offered one way (this is the best reporting I’ve seen on that event). Which seems to have scandalized centrist commentators like Damon Linker.
Hmm. If stopping Trump only feeds a fire that will grow bigger, are we supposed to . . . not stop Trump? Because that’ll stop him? I’ll admit that’s a turn or two of the dialectic that I hadn’t quite anticipated.
Ross Douthat and David Brooks — and a lot of other people in the media — have a different way: the Republican Party elders should deny or ignore the will of Republican Party voters at the convention and — Douthat is the most explicit about this — appoint someone else.
There you have it: last Friday’s protesters in Chicago are a threat to democracy; Douthat’s and Brooks’s recommendation — the first larded with references to Coriolanus and Sullla, the second to Psalms — are an example of patrician wisdom and civic virtue.
Lesson for the Left: quote the classics more.
I have to admit, though, that I love it when Douthat gets all juiced up like this, exciting himself with the notion of party elders and delegates gathering together and, out of their grave sense of duty, denying the nomination to the man who got the most votes.
After ginning himself up with an ancient draught — Coriolanus! Sulla! — Douthat says that fighting demagoguery is why we have anti-democratic institutions such as complex convention rules, party elders, and the like. What’s a Burkean elite for if not to take away from the masses their toys?
What makes it echt-Douthat is the longing, the aching: he so pines for a responsible, dutiful, do-the-hard-thing ruling class that he seriously allows himself to imagine an American political party, in 2016, in full view of the world, willfully defying the mandate of its own voters. He truly imagines the party of Mammon morphing into the party of Montesquieu.
And somehow coming out the better for it. As opposed to the more obvious result: being thoroughly repudiated by their own disgusted voters and tossed into the dustbin of history.
Sure, says Douthat, the Republicans might lose the election. Sure, there will be a period of extended reflection and difficult soul-searching. But at the end of the day, the party will begin its “long hard climb back up to unity and health.”
It being America, there’s always a happy ending. Such are the fantasies of our responsible conservative pundits: one part Roman tragedy, four parts pure kitsch.
According to the New York Times:
Donald J. Trump warned of “riots” around the Republican National Convention should he fall slightly short of the 1,237 delegates he needs to clinch the nomination and the party moves to select another candidate.
I’ve been pushing the 1972 election parallel, with Trump cast as McGovern. Now I’ll push the 1968 election parallel, with the RNC convention this summer a site of mass disorder and disruption — not between the Left and the Right but between the Right and the Right — not unlike the chaos you saw in Chicago in 1968 (though probably less violent).
And for people pining for a “responsible” Republican Party?
First, tell me who that would be? Ted Cruz? Mitt Romney? George W. Bush? You want a reprise of the Iraq War? The creation of trillion-dollar debt that the Democrats then reduce by making more cuts in programs? No thank you.
But, second: why? This convention may be the best thing that ever happened. Let the Republican Party destroy itself. Let them cry, “The whole world is watching!” Because the whole world will be. And recoiling in horror.
It strikes me that one of the reasons Trump can be made to look so bad in all these protests against him — and should the Republican Party convention descend into chaos because of him — has to do with Black Lives Matter.
Black Lives Matter seems to have had some positive effects on public opinion about the persistence of racism and the inability of African Americans to be treated fairly. And by putting such a relentless and unforgiving spotlight on police and para-police brutality, Black Lives Matter has effectively transferred the valence of violence and lawlessness to the traditional forces of law and order.
We got a premonition of this in New York two Decembers ago, when Patrick Lynch and the New York City police union tried to use the murder of two cops by a lone gunman in order to go after people protesting the acquittal of the cop in the Eric Garner murder. Despite my fears of a “Weimar vibe,” and that of many others, the police failed spectacularly to turn the event to their favor.
Perhaps Trump is seen by some, many, as the heir and ally of Darren Wilson, of the killers of Freddie Gray, of freelancers like George Zimmerman, and of all the dispensers — both in the state and among its subcontractors — of gratuitous violence and terror. Which makes parallels to the violence and disruption of the sixties and seventies relevant, but perhaps for the opposite reason that most people think: it will be Trump who is cast in the role of the dangerous and violent radical.
This video, prepared by a Republican PAC that wants to stop Trump, is just a tiny flavor of what’s coming at Donald Trump in a general election campaign. It features women reading out the horrible things Trump has said about women. It’s something that any Democratic candidate could use effectively against Trump in November.
No one should be complacent, but to think Trump’s brand of vile garbage can win in an electorate in which the majority of voters are women — women with sons, fathers, brothers, and male friends — is to imagine a world different from the one we have.
For all the fear and loathing of Donald Trump as some kind of impresario of power, captivating the mind of the Republican electorate, if not the American electorate as a whole, it’s important to rememberthat as of the mid-March moment in the 2012 GOP race, Mitt Romney had won 56 percent of the delegates. Trump, by contrast, has only won 44 percent of the delegates. And don’t forget, Romney was fighting in a four-person race that began as a seven-person race.
There is a great deal of justifiable concern about Trump, but he seems to possess an extra frisson for commentators. His powers are inexplicably magnified by the notion that he somehow speaks for the deep dark id of The American People, all polls and votes to the contrary. The truth may be altogether less exciting: mediocre Mitt captured more Republican hearts and minds than the terrible Trump ever will.
There is a silent majority in this country. And it hates Trump. You heard it here first.
Ryan Lizza had a solidly reported piece in the New Yorker about the divide between Sanders and Clinton voters. At the end, Lizza reports that a fair number of establishment Democrats are quietly concerned about all the investigations of Clinton, and what that could portend for the general election. “It is unusual for a presumptive nominee and some of her current and former aides to be under investigation by the F.B.I.,” he writes.
Lizza reports that Sanders, interestingly enough, has pretty much refused to go after her on that count: in part because he realizes the long game here is not to win against Clinton on personal grounds (i.e., she’s untrustworthy) but to win against her on political grounds: she represents neoliberalism. Anyway, behind the scenes, there’s a lot of anxiety about Clinton the candidate among non-Sanders elites.
Seeking to appeal to a constituency that extends from Damon Linker to Damon Linker, Obama blamed both sides at the Trump rally in Chicago Friday night:
Mr. Obama did not mention Mr. Trump by name, but he criticized the protesters who have interrupted the candidate’s campaign events and the violent response from Mr. Trump’s supporters. . . . Mr. Obama said the actions of both sides damaged American politics and the nation’s reputation around the world.
In the course of telling wealthy donors in Texas that the Democratic Party should rally around Hillary Clinton, Obama apparently comparedBernie Sanders to George W. Bush.
Mr. Obama acknowledged that Mrs. Clinton was perceived to have weaknesses as a candidate, and that some Democrats did not view her as authentic.
But he played down the importance of authenticity, noting that President George W. Bush — whose record he ran aggressively against in 2008 — was once praised for his authenticity.
It’s comments like these that make me skeptical of people who say Obama would be so much more progressive — Sanders-like! — were it not for the Republicans in Congress. A lot of people don’t realize just how deeply ingrained is the suspicion, among people like Obama, of any kind of politics that strays from a tightly defined centrist consensus.
The notion that Obama came into office wanting big radical changes and then was contained by an obstructionist GOP overlooks just how aware he has been, from a fairly early moment in his career, of the power of the Right in America. That awareness has so structured, so contained, his thinking — morally, politically, ideologically — that it makes little sense to try and differentiate what’s strategic from what’s substantive in his thought, what’s a tactical dodge from what is a deep commitment. All of his ideas grew, like a vine, around that thick trunk.
The ease with which he compares Sanders to George W. Bush reflects that seamless combination of strategy and substance: Sanders and Bush are dangerous, unthinking, disruptive, ideological, identical.
Doug Henwood has been telling me forever that mainstream liberals and Democrats love to have the likes of a Donald Trump around because it lends to their own limited vision a kind of moral and strategic grandeur: all their triangulation and sail-trimming and timidity get suddenly repackaged as The Thing That Stands Between You and Barbarism. (Now that I think about it, this is what I said about Montesquieu — the first liberal, according to Judith Shklar — in my book on fear. But I digress.) I’m beginning to think Doug’s right. (I know, I’m slow on these things.)
And that may be, in the end, the real reason Bernie Sanders unsettles so many in the Democratic establishment: not only does he threaten some hardcore material interests and longstanding assumptions, but he’s also forcing liberals and Democrats to learn how to play a different game. One in which they don’t have one but two enemies, one in which they can’t easily package themselves as the party of all that is good. That was the game, incidentally, that liberals first learned how to play — were forced to learn how to play — in early nineteenth-century France. If that history is any precedent, we’re in for a bumpy ride.
Richard Rorty — the little bit of him I could understand — said that when you keep finding yourself at the end of the same cul-de-sac, philosophically speaking, it’s time to get yourself a new philosophy, a new vocabulary. That was philosophical pragmatism. Maybe it’s time we applied that to the political realm.
As Bonnie Honig said of this video: “Why Bernie should stay in the race. Watch to the end.” Or till about the forty-second mark.