The Direct End of Government

Not many people remember that Patrick Henry, the fiery American patriot and founder who famously declared “Give me liberty, or give me death!” opposed the United States Constitution which replaced the Articles of Confederacy. He believed it gave too many powers to the proposed government and in particular to its Chief Executive. A revolutionary who’d risked all for independence, he didn’t want what he saw as another king, and he believed the new Constitution a threat to American liberties. Ironically, decades later during the Civil War he was claimed by both northern abolitionists and southern secessionists.

Of such complicated characters is history made, but I bring Patrick up because I wonder what he would think of our current constitutional crisis.

I should put “constitutional crisis” in quotes, because it’s not a legal crisis. Yet. But as a student of history it disturbs me that two of our fundamental institutions are experiencing deep legitimacy crises right now. The Electoral College is under attack because under the right circumstances it can choose as our Chief Executive Officer and Commander in Chief a candidate who fails to achieve a majority of the popular vote–an undemocratic result. The Supreme Court is under attack because it’s perceived as an autocratic and therefor undemocratic body in the process of being captured by one of our two major political parties. There is strong support among those who feel that the Electoral College is thoroughly anti-democratic and the Supreme Court is becoming the tool of . . . regressive actors . . . and that Something Must Be Done. Let’s look at each from Patrick’s perspective.

The Electoral College

As currently structured, the Electoral College was intended to check the national influence of the most populous states (the claim that it was constructed to protect slavery in the southern states is a base canard; it got more support in the North than the South during the convention and ratification debates). The EC was originally intended to be a kind of elite debating society–under the Constitution, electors are chosen by the states and the electors were to choose the President–but it became a kind of rubber stamp institution where the electors swear to choose the candidate who wins their constituent’s popular vote. A not-so-trivial legal constitutional battle is now being fought over the question of whether electors must give their vote to the candidate most popular with their constituents. But a larger legitimacy crisis now looms over the entire Electoral College. It pops up every time the EC elects as President a candidate who came in second with the national popular vote.

So what would Patrick Henry think of this?

He’d totally back the legitimacy of the Electoral College, especially when it goes against the popular vote.

What? Really?

Absolutely. Of all the things he worried about with the new Constitution, the leverage the EC gave to the smaller states wasn’t one of them. Quite the opposite. Since he was critical of even the limited powers granted the proposed US President at the time, it made sense that any candidate for that office should enjoy the widest popularity possible, among Mainers as much as Virginians or New Yorkers. At the time of the ratification debates Virginia had 10x the population of Kentucky, and the Electoral College would force presidential candidates to pay attention to the smaller states and not simply act as the Chief Executive of the Big States of America.

How would this look to Patrick, today? As of the 2010 Census, our most heavily populated US State (California, pop. 37 million) has 67x the population of our least populous state (Wyoming, pop. 550 thousand). Trump won the popular vote, and therefor the electors, of 30 of our 50 states. He lost the popular contest in California by 4,269,978 votes, accounting for all of the 2,868,691 votes by which he lost the “national” popularity contest. As one commentator noted, as an illustration of what this meant, you could imagine the 2016 results with Trump keeping every state he won, while adding a 1-vote victory margin “in every state Clinton won except just five states: California, Illinois, Maryland, Massachusetts and New York. That would subtract 2,636,017 votes from Clinton’s total, which would still give her a 232,642-vote majority of total votes. So, Trump would have won 45 states and the District of Columbia representing 74 percent of Americans, which would give him a 413-125 Electoral Vote win. Yet, under the California popular vote model, Clinton would still have won the presidency by 232,642 votes.”

To rephrase that, in 2016, under a single National Majority method for electing our presidents, Hillary Clinton could have lost in every state she won but California, Illinois, Maryland, Massachusetts, and New York (total pop. around 83 million), and she would have won the election. Think about that for a moment; she could have been President of a United States in which a majority of voters in 45 states voted against her. That might still make sense, if we had a unitary national government. But we don’t; we have a national federal government which shares power with sovereign state governments, and in which the powers of our federal government are, in theory, limited.

It concerned Patrick Henry that a strong national government could ignore the majority will of the smaller states, or even most of the states if the largest states formed a political coalition. He would not have been a fan of Donald Trump, who is far from a Small-Government Conservative, but he’d be one of the first to defend the EC, which forces candidates to stump widely as well as deeply, focusing on more than a handful of states. Want a revolution? Create a national electoral system in which our most powerful political figure can be chosen by the popular majorities of just five states. If One Man One Vote meant an end to the EC and domination by a small coalition of states, Patrick Henry would be first in line with “Give me liberty, or give me death!”

The Supreme Court

Nobody really saw Marbury v Madison coming. With one decision, Chief Justice John Marshall established the justices of the US Supreme Court as high priests with the power to interpret the meaning of our holy writ–the sections and amendments of the Constitution–and to invalidate any action or subsequently passed law that violated the sacred national contract. It put teeth into the declaration that “Congress shall make no law . . . “

Because Supreme Court Justices aren’t robots, angels, or Vulcans, every court since has rendered its unappealable decisions based on reason, precedent, ideology, prejudice, partisanship, and often accepted “truths” of their time that turn out to be horribly untrue later. Patrick Henry would not have been surprised. I have no idea if he would have approved.

What he did approve of was the degree of separation between the federal administration (elected and appointed, its composition changing with each election), and the federal courts (whose members’ appointments are essentially for life). While the power to fill judicial seats was a reward for winning elections–the party winning the Presidency and a Senate majority filling the seats to their advantage–the fact that turnover was slow meant that a party would need to hold power for a significant period of time to tilt the judiciary in favor of their politics. The downside, of course, was that a party, on achieving majority control of the executive and legislative branches, would find itself opposed by the judicial branch for years in areas where its policies conflicted with current judicial interpretations. The judicial branch remains the branch most resistant to swift change, the branch least likely to bend to currently popular political doctrines.

Since the Supreme Court is supreme in its domain, it’s been fought over ever since, its seats the ultimate prize for winning elections. One way we’ve kept the never-ending War of The Seats from turning into a scorched-earth total war is the filibuster. It was used to require 60 votes to bring a Supreme Court nominee to a vote in the Senate. Since neither party tended to hold a 60+ Senate majority for long, this gave both parties leverage to stop judicial nominees from taking up lifetime appointments. Neither party liked the filibuster when it worked against them, but both parties understood the compromises also protected them when they were out of power.

Then a Democratic Senate majority ended the filibuster rule for lower federal court seats so a simple majority could vote on the nomination. After that the next Republican majority ended the filibuster rule for all federal judiciary nominees, including the Supreme Court.

And now it’s total political war, baby!

Seriously. It’s still seldom that either party has a filibuster-proof majority (60+ seats) in the Senate, which means if anything is to get done then some bipartisanship is required to get support from “across the aisle.” Where once both parties could usually block a Supreme Court nominee that they perceived as too extreme (in the wrong direction of course, since obviously it’s impossible to be too extreme in the right direction), even when out of power, now neither party has any legal way to block an unacceptable nominee if the majority party votes as a block to approve the nomination.

The result is the absolute vitriol of the last Supreme Court appointment. The Democrats wouldn’t have resorted to character-assassination in a last-minute attempt to derail the nomination if a filibuster would have served. And now there’s no way for the Democrats to stop the Republican-majority Senate from voting to confirm a replacement for Ginsberg before the 2020 Election.

The Filibuster Rule isn’t coming back for judicial nominations; neither party will reinstate such a limit on their power while they’re the majority. That means where the War of The Seats used to fill our judiciary with a healthy share of judicial moderates (a judicial moderate being a judge neither party is completely happy with), both parties will now be exclusively filling those seats with their own judicial activists. The stakes are now higher than ever.

And the current makeup of the Supreme Court? It’s about to tip towards the judicial textualists, which to Democrats is the same as “right-wing.” (It’s really not, but hey, nuance.) And it will stay there for quite awhile, since the younger justices will now mostly be textualists. The Republicans have played by the rules in their long campaign to move the court, and though you can argue they’ve played ugly, politics has never been pretty. But the outcome of this election may very well be a complete Democratic sweep of the White House and both houses of Congress, right after the court tips to become “constitutionally conservative.”

This brings up the second crisis.

The US Constitution does not dictate how many justices will sit on the Supreme Court. That was established by federal law, which means a Democrat-controlled Congress could blow up the Filibuster completely and change that law by simple majority vote. They could then “pack the court” with politically progressive nominees, as many as they want. Franklin Delano Roosevelt threatened the Supreme Court with this, once, but there’s an obvious reason why no Congress has ever done it; there is no constitutional limit to such a move.

If the Democrats change the law and pack the court with their preferred judges, when Republicans regain the majority again (and they will), there will be nothing to keep them from changing the law again to bring in more of their preferred judges, or to reduce the number of seats as the older, progressive judges, retire or die in their seats. The Supreme Court has never been truly unpolitical, but it’s always been an independent branch. These kinds of shenanigans would fatally compromise the judicial independence that Patrick Henry and the other founders saw as a vital check on executive and legislative power.

So, what happens now?

To be honest, I have no idea, but let me point out some possible roads.

Road 1: Donald Trump wins reelection, with both an Electoral College
and popular-vote victory.

At this point the polls are so unreliable that I wouldn’t be surprised by this outcome. If it happens, the simmering constitutional crises won’t boil over, at least for now. There might be riots, and if there are then gun shops everywhere will do even brisker 2nd Am. business (they have had a very good summer).

Road 2: Donald Trump wins reelection, again with an incontestable Electoral College victory but not a popular-vote victory.

More likely than Road 1, and more dangerous. Riots are almost certain, and a majority of the country will be confirmed in their hatred for the EC. Resistance will kick into a higher gear, with half the country refusing to accept Trump as a legitimately sitting Chief Executive. Ironically, this will be a worse outcome for both parties as the Left moves further left, further alienating the Moderate Middle and further radicalizing the Far Right in response.

Road 3: Donald Trump wins/loses reelection by a contestable voter margin in swing states.

The darkest road. If the voting is this close, the country will go into recount-and-litigation mode. It will be Bush v. Gore writ large, playing out across several states at once and certain to be decided by a Supreme Court that Democrats are convinced the Republicans have stolen. The Supreme Court’s legitimacy will be at an all-time low at the moment it needs to be rock-solid.

Road 4: Donald Trump loses his bid for reelection by an incontestable margin, Biden winning the Electoral College and popular vote.

With the Big States tilting Democrat, it’s mathematically impossible for Biden to win the national popularity contest and lose in the Electoral College. No riots, but almost as perilous an outcome for the Supreme Court, which if the Democrats also take the Senate must now face a vengeful party.

Constitutionally, none of these roads look good. If we come through all this intact, I hope that everybody realizes how close a thing this has become and we begin to take steps. This is probably wildly optimistic of me, but if even a little bipartisan sanity bubbles up from all this, there are some possibilities for compromise. The most important move to make would be to constitutionally regularize the Supreme Court. I suggest an Amendment.

The Supreme Court shall be comprised of 9 justices, the sitting justice with the most seniority being retired every 2 years if no other vacancies have occurred in that period, vacating the seat on the fourth Friday of that year.

As to the Electoral College, there is no constitutional fix short of an additional amendment, and since there’s no way the smaller states will go along with it chances of success are slim to none. But I think all the hating on the EC is really a symptom of unitary nationalism. Unitary nationalists are populists who pretty much want to ditch federalism (on paper, our current system), reducing states to mere administrative appendages of a unitary national government (ironically, something many “conservatives” would approve of if they remained the majority party). Patrick Henry’s nightmare. But if that’s your thing, have at it. Go ahead, I’ll respect you as long as you’re honest about it.

MGH

Note: whether you disagree with me or with others who disagree in the comments, please keep it civil. I’ve never had to moderate a comment-thread on one of my posts, and I don’t want to start now. Whatever your political convictions, we’re all citizens engaging in dialogue here.

About George

I am a reasonably successful self-published author ("successful" means I can pay the bills and am highly rated in my Amazon category), former financial advisor (writing is more fun), and have something in common with Mitt Romney and Donny Osmond. Guess.
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63 Responses to The Direct End of Government

  1. Paul (Drak Bibliophile) Howard says:

    Nice article.

    Oh, I’m “biting my tongue” right now.

    I’m hoping that “your place” doesn’t get filled with “red hot political fighting” and I don’t want to say anything that might get it started.

    Take care and hope your writing is going well.

    • Jack P says:

      Not my country, but I have to say a lot of your problems seem to come from first past the post voting locking people in the middle to either the left or right wing. And nothing short of a miracle or a civil war will pry both power mad parties away from it, so you know, good luck over there.

      Anyway just, you know, in passing…. WHEN IS THE NEXT BOOK DUE?!

  2. Windscion says:

    Or better yet, make the filibuster permanent with an amendment.That in one stroke may enforce (cringe!) a tiny measure of civility. Yeah, that sounds bad. “Enforce civility” usually means “tie the hands of the minority”. But here it means the opposite, and the cringe comes from the fact that it was necessary.

  3. AVR says:

    Reducing the stakes of judicial appointments – your way, or anything vaguely similar – would be good. Not as good as taking those appointments out of the hands of politicians entirely, but your country is what it is.

  4. Linda Byrd says:

    Very interesting post. Thank you for a civilized political inquiry. I’m going to share on Facebook but I don’t know how many will read the article to the end. It’s so reasonable.

  5. Louis Launer says:

    Excellent essay, George. I’m turned off on politics mainly due to the media. But I would love to see a change in the White House this election cycle.

  6. Gary says:

    I have political opinions! I like yours, as well.

  7. George says:

    Someone else made a good suggestion: a constitutional amendment specifically requiring a 60+ Senate majority for approval of Supreme Court nominations. This would effectively lock in the old Filibuster Rule for SP nominations and restore the need for bipartisan approval.

  8. garysjordan says:

    We’re proposing amendments? I propose an amendment forbidding states from making the EC “all or nothing.” Divvy up the EC Reps per the popular vote.

    More important, let’s amend Article 1 SECTION 6

    Change “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.” to “and paid out of the Treasury of the State which has selected them.” Go on to forbid the Congress and Senate from setting their own wages and benefits, those being solely within the province of the several states. It then follows that all the perks are paid by the states as well.

    • George says:

      That’s not a bad idea, and I think there’s at least one state that does an apportioned EC vote? There’s nothing stopping states from doing it, and perhaps such an amendment wouldn’t be too hard to pass. Although from what I know about the 2016 returns, Trump won by wide enough margins in enough of the states he took that apportioning the EC votes would have given him more from California, Florida, and even New York than he would have lost.

      So Democrats still wouldn’t have been happy with the EC.

      • Paul (Drak Bibliophile) Howard says:

        Sadly, I’m coming to the opinion that the Democrats don’t like any “rules” that result in them losing. 😦

      • garysjordan says:

        Like Paul said, and this observation: It is not my task to make Democrats NOR Republicans happy.

        ” In forty-eight states and D.C., the winner of the plurality of the statewide vote receives all of that state’s electors; in Maine and Nebraska, two electors are assigned in this manner and the remaining electors are allocated based on the plurality of votes in each congressional district.” I would make the Maine and Nebraska method part of the constitution. I’d also like to give the US Territories one or two electors each.

        Recognizing that Congresspeople and Senators are really state employees would/should cut way back on their salaries and benefits and retirement. And I wouldn’t grandfather any of them.

  9. Max Woldhek says:

    Wait, what character assassination are you talking about? Kavanaugh was credibly accused, the investigation into whether or not he’d done it was handicapped by the Republicans, and even if he’s as innocent as the driven snow he disqualified himself by ranting about revenge like a Marvel comics villain:

    https://www.theguardian.com/us-news/2018/oct/02/brett-kavanaugh-reject-supreme-court-nomination-law-professor-letter
    “Hundreds of US law professors are urging the Senate to reject Brett Kavanaugh’s supreme court nomination because of his conduct at last week’s hearing on sexual misconduct allegations.
    Signatures are being collected for two letters arguing that Kavanaugh disqualified himself with his angry and tearful remarks to the Senate judiciary committee. Kavanaugh claimed an allegation that he committed a sexual assault aged 17 was “a calculated and orchestrated political hit” by Democrats.
    The professors say in their letters that Kavanaugh displayed contempt towards members of Congress and showed a political bias that could call into question his future rulings. They also say his temperament is unsuited to a lifetime position on the highest court.”

    • George says:

      Did you watch the confirmation hearings? If you did and that was your takeaway, okay.

      • Paul (Drak Bibliophile) Howard says:

        Good thing I waited.

        You were politer than I’d have been.

      • George says:

        I watched it all. Not just the confirmation hearings but the battle around Kavanaugh’s confirmation from the beginning. That includes the Battle of the Documents. I’m not even a Republican, and I still read the whole affair not so much as a “calculated and orchestrated political hit” as a calculated (by some) and opportunistic (by many, many others) political hit.

        The most egregious bit was the fact that Ford’s accusation was sat on by a certain Democratic Senator for weeks before it was “leaked.” Then the calls for extensive delay and investigation, over and above that performed by the FBI, began.

        The thing to remember is the SC opening was announced in late June of 2018, and Kavanaugh was nominated in early July from Trump’s prepared list. Two months of vetting, then who knows how many days or weeks of Senate debate? In my opinion, Democrats saw an opportunity to delay and possibly derail a Republican Supreme Court nomination until after the 2018 mid-terms, when they might have picked up a Senate Majority. They took the shot. It didn’t work.

        Would Republicans have done the same thing if their positions had been reversed? Maybe. Probably. Personal opinion of Kavanaugh and the accusations aside, that’s how high-stakes and contentious Supreme Court picks have become.

      • Max Woldhek says:

        Okay, fair point about the “sitting on the accusation” thing.

        https://www.politico.com/news/2020/09/23/dianne-feinstein-supreme-court-battle-420357
        “And then there’s the lingering fallout over Feinstein’s role in the hugely controversial Judiciary Committee hearings for Justice Brett Kavanaugh in 2018, an issue that factors deeply into the questions about her suitability for this latest nomination fight.
        Feinstein waited for several weeks before disclosing allegations by Christine Blasey Ford that Kavanaugh had sexually assaulted her when they were teenagers. The bombshell accusations nearly sank Kavanaugh’s nomination, and senators in both parties questioned why Feinstein didn’t move more quickly to disclose Blasey Ford’s statement.
        A Democratic senator, speaking on the condition of anonymity, said a group of Feinstein’s colleagues want Sen. Dick Durbin (D-Ill.) or Sheldon Whitehouse (D-R.I.) to serve as the top Democrat on the Judiciary panel for the upcoming nomination hearings, which are expected to be extraordinarily contentious. This senator is worried that potential missteps by Feinstein could cost Democrats seats.”

        I was going to comment more on the case, but that’ll have to wait since right now I’m too busy getting scared by Trump refusing to commit to a peaceful transition of power as well as plotting what’s basically a coup.

        https://edition.cnn.com/2020/09/23/politics/trump-election-day-peaceful-transition/index.html
        (“CNN)President Donald Trump on Wednesday would not commit to providing a peaceful transition of power after Election Day, lending further fuel to concerns he may not relinquish his office should he lose in November.
        “Well, we’re going to have to see what happens,” Trump said when asked whether he’d commit to a peaceful transition, one of the cornerstones of American democracy.
        Trump has previously refused to say whether he would accept the election results, echoing his sentiments from 2016. And he has joked — he says — about staying in office well past the constitutionally bound two terms.”
        https://theweek.com/speedreads/939191/trump-campaign-reportedly-discussing-contingency-plans-bypass-election-results
        “President Trump’s campaign is discussing “contingency plans” that would involve bypassing the result of November’s election, reports The Atlantic.
        The report delves into possible scenarios if Trump apparently loses the 2020 presidential election but doesn’t concede, noting that although we’re used to electors being selected based on the popular vote, “nothing in the Constitution says it has to be that way.” Citing Republican Party sources, The Atlantic says that Trump’s campaign is “discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.”

        I’m so damn glad I don’t live in America. Please stay safe George.

      • George says:

        No worries. Media hysteria notwithstanding, if Trump loses the election he will step down. Even if he was inclined otherwise not a single legal institution would support him. I’m more worried about the street violence; 2020 has created far too many professional rioters.

      • George says:

        To clarify my attitude about Donald Trump and legitimacy. I’ve been watching US politics like a spectator sport for a couple of decades now, and I’ve decided that, due to the nature of the US political system, we’re afflicted by what I like to call POTUS Derangement Syndrome.

        In parliamentary systems the executive branch (the ministry) is run by the leaders of the majority party (or of a majority coalition). In the US’s presidential system, however, the Chief Executive and Commander in Chief is quite often not the leader of the party with the congressional majority; the legislators aren’t the administrators. Additionally, compared to most prime ministers, the US president has extraordinary power to check the legislature. And since we have nothing like a no-confidence vote to trigger a new election, the opposing party, whether a minority or majority in Congress, knows all it can do is wait out the clock and beat his reelection bid (or beat his chosen “successor”).

        POTUS (President of The United States) Derangement Syndrome is a consequence of being forced to live with that, and it magnifies the normal irrationality of opposition politics. Opposition politics requires politicians to sound alarms to raise urgency to motivate voters to “Oppose the Opposition!” Political partisans in media amplify the alarm (or downplay or dismiss it if they’re the opposition’s opposition). As the Internet Age progresses, with increasing information saturation, all these voices are only getting louder. Obama Derangement Syndrome was worse (from the Republican side) than Bush Derangement Syndrome was from the Democratic side, and now Trump Derangement Syndrome is simply insane, but don’t forget that many Democrats never accepted the outcome of Bush v. Gore (stolen election!) and many Republicans (Birthers) never accepted that Obama is a natural-born US citizen either. One manifestation of PDS is the tendency to grab tight on any claim of presidential illegitimacy. Not arguing for or against any of these claims, just explaining why they so often survive long after being creditably disproved.

        Another manifestation of PDS is the heightened tendency to vilify the PODUS far beyond his actual failings. With every administration, if you listen only to what the opposition politicians and media say about the PODUS, they are an ongoing crisis and Threat To Everything As We Know It. In this go-around, when the media breathlessly reports some fascist thing Trump has said, most of the time looking into it it’s been spun beyond recognition, taken out of context, exaggerated to the point of deception, etc. Other times it was right-wing but hardly fascist (fascist is currently one of the most misused words in the English language).

        This is turning into an essay-length reply, so to sum up; you might be glad you don’t live in the US (and sometimes I wistfully consider moving to Australia, myself), but despite all the bullshit and band music, our political system’s stability more resembles a gyroscope than a Jenga tower. Trump is not Hitler. Also not Stalin. Or Satan. I have no doubt that, contra all the alarm and concern, if Trump loses the election he will go peacefully. (Which is very different than gracefully. He’s never been a good loser. Or winner, for that matter.)

      • Paul (Drak Bibliophile) Howard says:

        Somebody I know called the President an elected King (without unlimited power) which is useful in times of real emergencies (no I don’t consider Wuhu Flu a real emergency).

        But there is a case to be made that Congress has given the Presidency powers over matters that are actually meant for Congress to decide.

        It’s been “interesting” to hear the opposition (including the News Media) scream about Trump doing things that Congress had given the President authority to do. They wouldn’t have minded if Obama or Hillary took actions (while different) in these matters but Trump taking action was “proof” that he was Hitler.

        On the other hand, it had been “interesting” to listen to past Democratic Congresses “blaming” Republican Presidents for matters that were under their authority (such as the Budget).

        The President can suggest a budget but he can only sign/veto the Budget that Congress sends him.

      • Max Woldhek says:

        I hope you’re right, but I feel I must disagree about the “most of the time looking into it it’s been spun beyond recognition, taken out of context, exaggerated to the point of deception, etc.” part. My experience is usually that when I read an article about something Trump’s done/said and go looking for the source material, it turns out to be even more monstrous than I first thought.

      • George says:

        “But there is a case to be made that Congress has given the Presidency powers over matters that are actually meant for Congress to decide.”

        That much is absolutely true and the budget is a perfect example. Presidential elections wouldn’t be nearly so “interesting” if Congress hadn’t ceded so much power to the Executive Branch. It’s easy to understand how it happened, though. When Congress is so often deadlocked, the party whose leader is in the White House is hugely tempted to look the other way when he essentially rewrites laws “with a phone and a pen.” And once one president does it in a specific contentious issue, subsequent presidents widen the precedent with their party’s approval.

  10. Dave says:

    The most important thing George Washington did is step down after 2 terms. He could have been president for life but he did not want a king. That action more than anything else in the US revolution made democracy what it is today.
    The commerce clause is the most abused line in the Constitution.
    The issue with the Supreme court is that it will probably flip from being mostly liberal to being consistently conservative for the first time in 30 or more years. The left didn’t have a problem when it was consistently left.

  11. Carl Fishman says:

    Often overlooked, but almost as important as what Washington did, is what Adams didn’t do. After losing his bid for re-election to Jefferson (an extremely bitter election), he didn’t contest the results; he didn’t call on the military to arrest Jefferson; he didn’t call for a recount. (There had been enough political chicanery (especially in New York state, which Burr pulled over to Jefferson’s side) that he had some grounds.) Instead, he peacefully vacated his office. (He wasn’t at all gracious about it; he left town before Jefferson arrived, so that he didn’t have to meet him! Because, like Trump, he wasn’t at all a gracious man.) By acceding peacefully to the will of the EC, he set an extremely important precedent.

    • George says:

      You can be sure that Trump won’t be calling on the military to arrest anybody if he loses, but as for recounts, lets not forget that the precedent there was set by Bush v. Gore, and both parties are lining up to legally contest close counts across the 50 states. Ms. Clinton has advised Biden not to concede under any circumstances. Both Trump and Biden will be pushed hard to hold off on conceding until challenges are exhausted.

      Which is why I’m telling everyone who will listen to VOTE IN PERSON IF AT ALL POSSIBLE. And if they do a mail-in ballot, to double check everything, do it early, and then check with their state to insure their ballot was received and accepted.

      For the sake of our country, we need to make this election as incontestable as possible.

  12. PeterM says:

    I don’t disagree with everything you’ve said, by any means. But I do find it interesting that in your analysis of the politicization of the Supreme Court your example started with the Kavanaugh nomination and ignored the fact that four years ago, when Justice Scalia died, the Republicans in the Senate decided that March 16 of an election year was too close to the election to debate Obama’s nomination. And yet in 2020 they’ve decided that September 25th of an election year is not too close to the election.

    • Paul (Drak Bibliophile) Howard says:

      Actually IMO it started with Justice Bork years ago and the Democrats showed how nasty they could be.

    • George says:

      Peter, my analysis of the politicization of the Supreme Court didn’t start with Kavanaugh; it started with the suspension of the filibuster rule in regards to court nominations, first the lower courts, then the upper courts. But more accurately it began earlier than that. The decision to suspend of the filibuster, first by a Democrat-controlled senate and then a Republican-controlled senate, was driven by increasing politicization of federal court nominations, itself a result of the two parties increasingly disagreeing on how justices should interpret constitutional questions (living-document vs. textualism).

      • PeterM says:

        It’s pretty obvious we see differently on this issue, which certainly isn’t unusual. I, for example, see the Republicans openly stating they were going to do anything they could to stop anything Obama wanted to do as the biggest contributing factor to the Dems ending the filibuster for judicial appointments, and see McConnel’s refusal to let many of Obama’s nominations be heard once he was in charge as proving that decision to be the lesser of two evils.

        I do notice you didn’t comment on the fact that four years ago a sitting President filling an open Supreme Court seat during an election year was unthinkable but now it’s being done as a matter of course. So I’ll ask you directly – Is it blatant hypocrisy or blatant-est hypocrisy? And how do you think the Democrats should act going forward, if this is how the Republicans have decided to roll?

      • George says:

        There’s a reason why I’m an Independent. It’s mostly because if you watch either party long enough you’ll find they’re committed to at least some policies you don’t agree with and engage in tactics you find deplorable. So I have no advice to either Dems or Repubs other than my usual “sage” advice. Remember that every power you exercise will also be exercised by your political opponents when they hold the levers. Remember that every precedent you set will be used in ways you won’t anticipate. To mix metaphors, always remember that what goes around comes around and you’d best be ready to pay the piper.

    • George says:

      All this was one case in which the doomsayers were absolutely right. Here’s a 2013 Cassandra screaming at the chorus.

      https://slate.com/news-and-politics/2013/11/the-death-of-the-filibuster-is-bad-for-centrists-and-moderates.html

  13. Max Woldhek says:

    Just noticed that John Oliver has a 20 minute video on the issue where he goes into the Supreme Court:

    • Windscion says:

      As I understand it, the whole reason for adding the skewed representation where every state gets two senators was to prevent the populous states from running roughshod over the less populous states. So much so, that having two senators per state is the one part of the constitution that, per the original text, CANNOT BE CHANGED! So basically, the things he is complaining about are foundational, and very nearly impossible to alter.

      • George says:

        Pretty much, yes.

      • Max Woldhek says:

        But if that’s the case, doesn’t it mean polarisation and anger will only keep increasing in the United States? Like Oliver points out, there are 30 senators who combined still represent fewer people than live in California, which only has two senators. And due to rural flight and so on this will only keep getting worse. What happens when 90% of America’s population is represented by 10% of the Senate? That just doesn’t seem tenable.

      • George says:

        And yet it’s not a bug, it’s a feature. We’re never going to get to the point where 90% of the population is living in just two states, but remember the US Senate is there to represent the STATES, not the people.

  14. Whiplash says:

    Kavanaugh should have been disqualified on the basis of temperament alone. The accusations against him were decades old; frankly, if he had just said “I don’t remember doing that Christine but I was a dumb kid back then, and that’s not who I am now. I sincerely apologize for any trauma you suffered because of my juvenile antics.” Instead he went into a red-faced, spitting rant which should be unacceptable during an interview for a job that requires a certain dignity and poise.
    In Alabama we had Roy Moore posting the Ten Commandments in his courtroom and was rightly slapped down. When he refused a federal order to remove them, he was then slapped down by the state bar. There is the requirement to avoid even the appearance of partiality when you’re a judge. How would you feel as a Muslim suing a Christian when you find the judge has the Ten Commandments posted behind him?
    Frankly, my interpretation of the electoral college was that the Founding Fathers, a group of generally well educated and wealthy men, had a little difficulty with the thought of the ignorant commoners selecting a President. They essentially gave the electors veto power over the election. If that’s the case, particularly if the electors are bound legally to go with the majority winner in their state, then it’s an institution who’s time has passed. And I can’t see how the electoral college makes the less populated states have more importance. They’d have less electors, which means the candidates would want to woo the more populated states.

    • George says:

      ” . . . if he had just said “I don’t remember doing that Christine but I was a dumb kid back then, and that’s not who I am now. I sincerely apologize for any trauma you suffered because of my juvenile antics.””

      Seriously? If he had made that sort of statement, I can guarantee that an admission that such “juvenile antics” might have once been in his character would have sunk his reputation and career. Because while there would have been no criminal-justice ramifications, there is no statute of limitations on moral turpitude when it comes to high office.

      Going further, an “I don’t remember, but . . . ” is only a remotely reasonable response if you don’t remember an event but, based on your own remembered actions back then, you think it’s in the realm of possibility you did in fact do it. What if you not only don’t remember doing said “juvenile antics” but you honestly don’t believe that you did it? Then such an accusation is not only an existential threat to you, it’s a foul attack on your good character and at most a “temperate” response might be “I’m sure I can’t understand what trauma you suffered, and I’m sorry that you believe that I’m the one who caused you to experience it.”

      But I doubt I’d be capable of even that much if I also believed that, whatever Christine herself believed happened, her unsubstantiated accusation was being used as a weapon by purely cynical opportunists.

      So no, I’ve never bought the “disqualified on the basis of temperament alone” argument. It’s an easy argument advanced mostly by partisans who wanted him disqualified on any grounds they could find, and rejected mostly by partisans determined to see him confirmed. But I watched the testimony that many people sincerely believe disqualified him, and all I can say is I can’t say I wouldn’t have responded similarly in his shoes. That of course is based on my judgement of my own character, not his, but that’s what makes the whole thing a Catch-22.

      If you think he is likely guilty of the accusation, then of course his response only further disqualifies him.

      If you think he’s likely innocent, then his response seems much less disqualifying.

      • Paul (Drak Bibliophile) Howard says:

        Correct me if I’m wrong, but IIRC his anger occurred after the Democratic Senators kept attacking him for being a sexual predator based on her testimony and his denial of it happening.

      • Whiplash says:

        I understand why YOU might have that angry reaction, but you aren’t a federal judge vying for the highest judicial office in the US. Even Clarence Thomas, faced with similar charges, barely raised his voice in response, and I believe the harshest thing he said was about “a high tech lynching”. So, yeah, a judge should have at least the appearance of impartiality and all he convinced me of was that if I ever sexually assault someone I know he’d be a good judge for me to go before. I don’t know if he’s guilty or not (and you have to admit the FBI investigation was superficial to put it generously), but watching him lose his shit in front of the friggin’ SENATE on national TV doesn’t make me think “this man is a wise decision maker”.

  15. Max Woldhek says:

    Well, the hearing has started, and Mike Lee who was diagnosed with Covid less than two weeks ago is present, in the flesh, speaking, and not wearing a mask. This is beyond parody.

      • Max Woldhek says:

        As the article points out there are documented exceptions and that’s why a number of experts recommend isolating for 14 days. And even if he absolutely had to attend keeping a mask on at all times would have been the least he could do.
        As for Barrett, at least she acknowledged the existence of implicit bias in the justice system, which is good. As for the other stuff…

        She used a right-wing dog whistle to when talking about LGBT people. To quote Senator Hirono and George Takei:
        “Sexual preference is an offense and outdated term and I don’t think you using it was an accident. Sexual orientation is a key part of people’s lives.”
        “It’s not a sexual “preference,” Judge Barrett. A preference is something you choose. I’ll give you and example: “I have a preference for non-radical, non-fundamentalist justices on the Supreme Court.” Are we clear?”

        When asked if Trump can unilaterally postpone the Presidential election (he can’t) Barrett dodged the question. From the Constitution:
        “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
        That was a gimme question, and she botched it.

        She also dodged a question on whether or not it’s illegal to intimidate voters at the poll. What does Title 18, Chapter 29, Section 594 of the U.S Code say?
        “Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate, shall be fined under this title or imprisoned not more than one year, or both.”
        Another gimme that she botched.

        Barrett also claimed she was not aware that the Alliance Defending Freedom (labelled a hate group by the Southern Poverty Law Center) for which she spoke five times has repeatedly tried to re-criminalise homosexuality.
        https://www.vice.com/en/article/ep4j8e/amy-coney-barrett-not-aware-the-group-she-spoke-for-5-times-tried-to-criminalize-homosexuality

        Moving on from Barrett, Trump has advised Kavanaugh to sue his accusers, which would trigger a full public review of all the evidence. To quote Attorney Melissa Schwartz:
        “Sue the women…like the multiple credible women who came forward? And those of us who were proud to serve them pro bono? That means ACTUALLY investigating their claims and the dozens of witnesses ignored by the Committee. Let’s do it.”
        Go for it Brett!

      • George says:

        On “sexual preference.” The quote: “I have no agenda,” Barrett responded. “I do want to be clear that I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.”

        Judge Barrett was raised and educated in my generation, one which used the term “sexual preference.” The term was once commonly used by straights and gays. Yes, the term has fallen out of favor because of a perceived implication that it suggests a “preference” can be changed. However, neither I nor anyone I know took “preference” to imply that sexuality was a personal choice that could be altered. I cannot speak omnisciently as to whether or not it’s ever used today as a dog-whistle, because it doesn’t sound in the ear as a dog-whistle to me.

        Today I use “sexual orientation” instead out of courtesy. However, I will point out that “orientation” doesn’t imply permanence or centrality any more than “preference” does. After all, we refer to other’s “political orientations” or “religious orientations.” Both are deeply held and central to one’s sense of self, and both can change due to changing convictions.

        In any case, Judge Barrett did in fact sincerely apologize for any offense taken at her use of the older term.

        As to your other notes, I’ll need to go read those sections of her hearing, but I suspect that here she’s been sticking to her intent to abide by the Ginsberg Rule: no pre-commitments. However, from what I have learned of her jurisprudence, I would be shocked indeed if Judge Barrett didn’t rule against Trump if he tried to postpone the election (she is an Originalist, after all, and it’s hard to get more Originalist than that), or in favor of rigorous application of voter-intimidation laws.

      • Max Woldhek says:

        I really, really hope you are right. Speaking of pre-commitments, I happened to come across an article at fivethirtyeight that I thought was interesting.

        https://fivethirtyeight.com/features/why-the-amy-coney-barrett-hearings-are-verging-on-the-absurd/
        “In her first day of questioning from senators, Supreme Court nominee Amy Comey Barrett wouldn’t say how she would rule on abortion cases. Or Obamacare cases. Or gun rights cases. Or really anything else. She wouldn’t even say how she would rule if President Trump tried to move the election to another date, as he suggested he might do earlier this year. (There is no real indication that Trump will follow through on that idea.)
        Barrett’s refusal to offer her views on virtually every issue wasn’t surprising — almost all judicial nominees from both parties do that. But that approach turned Tuesday’s hearings into … OK, I’ll just say it: a farce.”

        What’s even the point of Senate hearings if candidates (from both parties, apparently) just dodge questions instead of actually answering them?

      • George says:

        Since senators from both parties have certain litmus-tests (answers that are completely unacceptable), and any Supreme Court nominee is likely to have several cases waiting for them when they take their seat that senators from either party have vested interests in, there is exactly zero possibility of a nominee answering a question of “How would you vote on X case?” or “How would you vote in X circumstance?”

        Thus the Ginsberg Rule. The nominees know it, the senators know it, and so any senator who asks those questions is pretty much grandstanding. So what are legitimate questions? Well, each nominee comes to the table with a boatload of judicial decisions behind them, as well as any writings, speeches, etc. So, asking about specific cases, asking for clarification of things they’ve said, making them articulate their judicial process and approach, those are all on the table.

      • Max Woldhek says:

        Apparently legitimate questions don’t exist, since Barrett kept dodging until the end like Neo in the Matrix.
        But, in my subjective opinion, she disqualified herself on two points. First, she refused to say that family separation is wrong, when we’ve got ample evidence of the horror it caused on the border (I read about a four-month old being ripped from her mother’s arms). That’s morally indefensible.
        https://slate.com/news-and-politics/2020/10/amy-coney-barrett-family-separation-scotus-nominee-no-answer.html
        Second, she dodged on climate change. Climate change! The biggest crisis of our time, and she dodged. Nobody who does that is qualified to sit in any position of authority, in my opinion.
        https://www.theguardian.com/us-news/2020/oct/15/amy-coney-barrett-refuses-to-tell-kamala-harris-if-she-thinks-climate-change-is-happening

  16. Dave says:

    the popular vote number is in and of itself a crap number. The minority party rarely votes in dominated states. (in both directions) So you can’t determine what the vote would be if the popular vote mattered.

    • George says:

      I’m not sure the minority party “rarely votes”, but I’ll grant that heavily blue and heavily red states will likely see lower voter turnout from the minority party most of the time.

  17. dave says:

    And I missed my target audience for this,

    Vote Cthulhu, why settle for the lesser evil

  18. George says:

    As an added note after following the confirmation hearings and the political/legal commentary on them, I have yet to find any liberal legal scholars or pundits offering an alternative to Originalism or Textualism.

    I have to conclude that the Federalist Society has won; all future Supreme Court nominees, from the left or the right, will henceforth at least pay eloquent lip-service to Originalism, i.e, the principle that the clauses of the Constitution mean what their writers/voters meant them to mean and the meaning can be adduced from the original text and from texts surrounding it . Arguments will revolve around that original meaning, much as with contract law.

    Which isn’t to say we’re not going to see a good deal of hypocrisy still. After all, “Hypocrisy is the compliment judicial activism pays to judicial restraint.”

    • Paul (Drak Bibliophile) Howard says:

      Nod.

      People who expect Perfect Systems and/or Perfect People will always be disappointed. 😉

  19. Max Woldhek says:

    https://lawandcrime.com/supreme-court/legal-scholars-endorse-house-bill-imposing-terms-limits-on-justices-as-critical-to-depoliticizing-supreme-court/
    Sounds like a good idea to me. It would lower the temperature around Supreme Court nominations a bit. Right now I’m seeing a lot of panicking (whether it’s justified or not depends on your politics) about how Barrett will be a scourge for civil rights for the next forty years if she’s appointed.

    And man, the way they are going to push her through one week before the election, when they blocked Garland from even receiving a hearing for most of a year…I’m disgusted, but I suspect that if I were American (and thus a Democrat, the Republicans being waaaaaay too far to the right for me )I would be absolutely livid with rage.

    • George says:

      I’ve always liked the concept of SP term limits, so yes this bill is a step in the right direction. However, it’s got at least one glaring problem; it doesn’t close the door on court-packing.

      It says the President “shall” appoint a new SP justice every two years, and

      Line 15 ‘‘(a) IN GENERAL.—Except as provided in subsection (b), if there are MORE than nine Justices on the Supreme Court after an appointed Justice is sworn into office, the Justice who has served on the Supreme Court for the longest period of time shall be deemed a Justice retired from regular active service under section 371(b) .
      ‘‘(b) EXCEPTION.—No Justice appointed before the date of enactment of this Act shall be required to retire.

      Notice the “more.” If this bill became law, a subsequent “court-balancing bill” could still add more SP justices anyway, expanding the court to 11 seats, 15 seats, etc. So the number of court seats could balloon until all the “immune” justices whose tenure predates the new law retired, allowing a Democratic White House and Senate to stack their own preferred judges into the court without waiting for seats to be vacated by voluntary retirement or death.

      Doubtless defenders of “more” will argue that “more” is simply a measure allowing an SP justice’s seat to be filled on the day he vacates it as per schedule. A reasonable interpretation, but politics is never reasonable; the language would need to be cleared up to establish that the Supreme Court will never have more than 9 sitting justices at any one time, even if newly appointed justices are waiting in the wings to replace them.

      If that is clarified, I’m in general favor. However, I’d much prefer it to be passed as an amendment to the Constitution, not as a mere law. If it was passed as a mere law, it could be overturned by a subsequent law by whatever party found it too inconvenient. As part of the Constitution, it would be settled for all time (or at least as long as the US Republic lasts).

      Personally, I’m in favor of a simple amendment which said something like:

      “The Supreme Court of the United States of America shall be comprised of nine appointed and approved justices.
      “Justices of the US Supreme Court shall sit for a term of 18 years or until seniority, the most senior member of the court retiring every two years at the end of the Supreme Court session in the first and third year of a presidential administration if no vacancy was made and filled through retirement or misadventure within the previous year.”

      So there you’d have a turnover of a Supreme Court seat every two years, one way or the other. You could get a senior justice serving more than 18 years, but only if one or more junior justice retired or died early. In any case the court would always be getting fresh blood.

      I think a lot of people on both the right and the left would go for it.

  20. Max Woldhek says:

    Well, they did it.
    McConnell in 2016: “The American people are about to weigh in on who is going to be the president. And that’s the person, whoever that may be, who ought to be making this appointment.”
    Lindsey Graham in 2016: “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
    Republicans in 2020: “Trololol.”

    And to add injury to injury, McConnell immediately afterwards adjourned the Senate until after the election, instead of, you know, passing legislation to help the millions suffering in this horrific pandemic.
    https://www.businessinsider.com/senate-adjourns-until-after-election-without-covid-19-bill-2020-10?international=true&r=US&IR=T

    And I just found out that Roberts, Kavanaugh and Barrett all have something in common: They all worked on Bush’s team in that act of election theft that was called Bush vs. Gore.
    https://edition.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html

    AND it’s now the third time in history that a Supreme Court judge was nominated by a president who lost the popular vote, and confirmed by a bloc of senators who represent less than half of the country. The other two times were Gorsuch and Kavanaugh.
    https://www.vox.com/2020/10/26/21534358/supreme-court-amy-coney-barrett-constitution-anti-democratic-electoral-college-senate

    Now the Democrats either expand the court or stand revealed as the biggest schmucks in America as the Republicans gut abortion rights, voting rights, marriage rights, healthcare rights, and whatever legislation the Democrats manage to get past McConnell’s Horcrux-y hands.

    • George says:

      There has never been an election year in which, when a vacancy was created, the president did not nominate a replacement to the vacated seat.

      There has never been an election year when, the Senate being controlled by the same party, the president’s nominee wasn’t confirmed.

      Which is why when Ginsberg passed I wrote that Trump would get a third Supreme Court Justice. At the end of the day, no White House and Senate, controlled by the same party, would have passed on trying to fill that seat. It would have been a first in American politics.

      Will Dems now pack the court? Anything is possible, but not everything is likely and personally I doubt it.

      • George says:

        An addendum: I remembered something and checked it out, and turns out I wasn’t quite correct.
        A Supreme Court vacancy has occurred 20 times in an election year where the US President and the US Senate have been of the same party. In every case the US President nominated a replacement, and in 18 of those cases the replacement was approved.

        A Supreme Court vacancy has occurred 10 times in an election year where the US President and the US Senate have been of opposite parties. In those years, the president didn’t bother with a nomination half the time and approval was far from certain; yes, obstructing a nomination while hoping the election will flip the Senate is a venerable congressional tradition. Democrats could have done that this time too, using the filibuster, but, oh wait, they got rid of it for judicial appointments.

        So . . . it sucks. And there it is. Maybe now that it’s been demonstrated how bad an idea it was to remove the filibuster it will be brought back for all federal judicial appointments.

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