Im-Politic: The Supreme Court Mess II

Tags

Antonin Scalia, Constitution, diversity, Federal Reserve, identity politics, Im-Politic, Joe Biden, Robert Bork, Ruth Bader Ginsburg, Senate, Supreme Court, term limits, Trump

Since the Supreme Court Mess that I analyzed yesterday really is a Supreme Court Mess and not simply a Ruth Bader Ginsburg Mess, today let’s dive right into problems with how Americans deal with the top of the federal government’s judiciary branch other than the means of picking the late Justice’s replacement.

First and maybe most obvious comes an inconsistency in the position of the Democrats and especially of their presidential nominee this year, former Vice President Joe Biden. From that party and candidate comes the insistence that it’s wrong for President Trump to choose a new Justice so close to the November election because it could strap the country with a new Justice and Court line-up that flout the popular will that would be revealed by a Biden win on major policy issues (like abortion or the future of Obamacare).

Leaving aside the (clear un-) Constitutionality of this position, it’s not entirely unreasonable. But it would become much stronger substantively, and much less vulnerable to charges of hypocrisy and pure partisanship, if Biden enabled voters to assess their actual Supreme Court-related choices at least as clearly as Mr. Trump has with the list of Ginsburg replacement possibilities he’s released. Biden has promised that he’d put forward an African American woman (though maybe not this time?). But which ones is he considering (if it is this time)? He hasn’t told us. So the criterion of fairness should oblige him to release his own list ASAP, to permit voters to weigh the alternatives fully. After all, even if they don’t like any of the Trump candidates (which the President has subsequently announced will be restricted to women), Americans might like Biden’s choices even less.

The second problem, though, has precisely to do with the identity politics of Supreme Court nominations that both Biden and the President are practicing. Not that I have any inherent objection to another female Justice or the first African American female Justice. But these announcements raise any number of divisive questions that Americans could do without in these divisive times. Just a few examples:

>During the Obama years, there was much talk that the Court needed an Asian-American Justice. (Full disclosure: Denny Chin, the federal appeals court judge mentioned here, is a college friend.) So many valid reasons were cited (e.g., they’re “the fastest growing population of color in the country, with a voting electorate expected to double in the next 25 years”). Exactly when, therefore, did this proposal become obsolete? And why?

>Regarding the Biden pledge to nominate an African American woman, that would move the Court’s makeup closer to the gender composition of the entire U.S. population, so this promise can be justified by the goal of making the Court “look like America.” (So would the President’s promise to choose a woman whose race or ethnic background he hasn’t specified.) But an African American woman would bring the number of African Americans on the Court to two (along with Clarence Thomas). Since they amount to only some 13 percent of all Americans, they’d be way over-represented.

>The same outcome would result from if Mr. Trump picks Cuban-American federal appeals court judge Barbara Lagoa from Florida. She’d be the second Latino woman on the Court (along with Sonia Sotomayor). But that decision would create another over-representation situation (though not one as sizable as those for African Americans, at least in the early part of a Biden administration). And what about Latino men? They’d remain completely shut out. How come?

Again, I agree broadly with the idea that the leadership ranks of major American institutions, especially public, but also private, should be diverse enough in terms of all the major population categories to make sure that the widely varying experiences of these groups contribute to decision-making. In my view, that’s a major plus, since the idea of objectively optimal policies or practices is impossibly naive, and because the choices made by public institutions are bound to affect different groups differently.

But although all these stakeholders deserve a say, when diversity – and especially specific diversity formulas – become explicit, you unfortunately enter a world in which the kinds of potentially ugly identity politics-related questions just mentioned tend to come to the fore, and vital issues of merit tend to move to the rear.

As a result, though doing so is somewhat hypocritical, certain kinds of fictions do serve important purposes. So I hope that from now on, diversity promises for public appointments at least become less explicit, and the results become the product of informal political pressures and other considerations. (Privately owned institutions should be able to do whatever they want within the bounds of anti-discrimination laws. Even so, diversity can benefit them, too, since especially in the case of businesses, they’re trying to win and keep customers, and diverse leadership ranks are likely to provide important insights into appealing to various population groups.)

The third big part of the Supreme Court Mess: The American political system clearly has moved way too far away from the crucial idea that, since elections matter, Presidents have the right to appoint whoever they wish to fill positions the Constitution entitles them to fill unless their choices are flagrantly incompetent, or utterly dismissive of Constitutional and ther legal standards, or ethically or criminally compromised. If Senators simply don’t agree with nominees on legitimate Constitutional and legal controversies – too bad.

Thankfully, this idea isn’t completely dead. For example, three Democrats did vote to approve Trump Supreme Court nominee Neil M. Gorsuch in April, 2017. At the same time, three isn’t much. Vastly more encouraging: In August, 1993, Ginsburg was confirmed by a 96 to 3 vote (one Senator abstained), which means that plenty of Republicans supported here even though she surely wasn’t their legal and Constitutional cup of tea.

At the same time, Republicans controlled the Senate when Gorsuch was considered, and Democrats enjoyed a majority when Ginsburg came up. So a better example of this ideal would be the 1990 vote in favor of David H. Souter. He was a George H.W. Bush nominee, yet won the nod of a Democratic Senate – in a 90-9 landslide. (This time, one Senator didn’t vote.) 

Or was it? After all, Souter arguably received this margin precisely because his views on major subjects were so unknown – largely because his lower court opinions and other legal writings were so plain vanilla or so scarce or both. As widely (and convincingly) supposed, Souter (and his supporters) had learned the big lesson of the failed nomination of Robert Bork: Don’t leave a conspicuous “paper trail.”

Bork, whose bid for the Court failed in 1987, was rejected by a Democratic-controlled Senate largely because his prodigious writings were so controversial. His reputation as a Watergate-era villain surely didn’t help, either.

But were Bork’s views so out of the mainstream, as his opponents charged? Just a year earlier, another doctrinaire judicial conservative nominated by President Ronald Reagan – Antonin Scalia – was elevated to the Court. And he won unanimously. (Two Senators didn’t vote.)  But that year, Republicans ran the upper chamber.

As a result, it’s easy to conclude that the tradition of “Borking” is very much alive, and that overly political Supreme Court nomination fights will continue for the time being.

The final big aspect of the Supreme Court mess: This drift away from the respect for legitimate presidential prerogatives no doubt results from both the prominent role the Court has played in deciding issues (like Obamacare) that elected politicians should be figuring out, and this prominence, and the towering stakes thereby created, in turn stem from the lifetime nature of Court terms. In other words, once a Justice is confirmed, he or she can serve literally for decades, and for just as long decisively influence policy decisions that shouldn’t be legalized.

Therefore, although I’m super-hesitant to support Constitutional changes in response to developments that are probably transient, I fear that the too often vicious and hyper-partisan nature of American politics is here to stay for the foreseeable future.  Therefore, I’d support at least considering an amendment that would limit the Justices’ terms.  One possible model: the Federal Reserve, another government body that’s supposed to be shielded from politics, and whose seven Board members serve for fourteen years, and whose Chair and Vice Chair are limited to four (although this curb doesn’t count against their Board service).

Not that I love the Fed’s degree of autonomy.  But the temperature of national politics clearly needs to be lowered to safer levels, and term limits on the increasingly supremely powerful Supreme Court are the best place to start I can think of.     

Following Up: My Maryland Hometown Approves Non-Citizen (Including Illegal Immigrant) Local Voting

Tags

Aaron Faulx, citizenship, democracy, diversity, Following Up, illegal immigrants, illegal immigration, immigrants, Immigration, Maryland, Pledge of Allegiance, Riverdale Park, voting

Monday night, the monthly legislative meeting of my hometown Riverdale Park, Maryland’s Town Council started off, as usual, with the pledge to the flag. A little less than two hours later, the Council voted 4-2 (with one abstention) to extend local voting rights to two categories of non-citizen residents (illegal and legal immigrants), and to 16-year olds to boot.

As RealityChek readers know, I wasn’t surprised by the final result – although the margin of defeat was narrower than I expected. Still, especially in light of the Pledge of Allegiance recited solemnly by Council members supporting this amendment to the Town Charter, and their backers in the audience, the voting decision was a (vigorous) head-scratcher. For it raises the most profound questions about to what exactly those in favor of non-citizen voting are vowing their loyalty.

As I wrote in that previous post, this form of voter expansion is completely inconsistent with arguments made – and with good reason – throughout American history since the era of the Founding. These arguments have held that a successful democracy cannot be created or maintained unless it’s based on a community of deeply shared ideas about democratic governance. In turn, it’s impossible to preserve this community and allow significant immigration flows unless newcomers receive extensive exposure to these values. Hence longstanding requirements that voting on the federal level be restricted to citizens, and that the naturalization process take several years. (As explained also in the post, the Constitution empowers the states to set election rules within their borders, and both historically and currently, some have decided ignore these claims and to permit non-citizen voting.)

Instead, the new Riverdale Park voting eligibility criteria specify that an applicant be a resident for a mere 45 days. Of course, even this threadbare requirement will be difficult at best to verify for illegal immigrants (along with their very identities). And it is utterly far-fetched to suppose that these verification goals can be achieved adequately with same-day registration of these voters.

But just as important, a 45-day local resident who could well have crossed the U.S. border not long beforehand cannot possibly be well-versed enough in the nation’s democratic values to qualify for the franchise – which is after all a right to make decisions with long-term implications for the community’s well-being. As for non-citizen legal U.S. residents, they either have not been present in the United States long enough to pass the national tests for citizenship (which include a five-year residency requirement), or they have chosen not to become citizens – and therefore join the national democratic community.

Is there any reason, however, to believe that the national residency requirement is inappropriate to apply on the municipal level? If so, none of the supporters of Riverdale Park voter expansion has mentioned it, and there’s no evidence that the subject even came up in discussion of the proposal among Council Members.

I sent my RealityChek post on the subject to all the Town Council members before the vote. Only two replied, and neither of them supported the amendment. In fact, I’ve only seen a single reference to the subject of a community of beliefs – in a lengthy and largely emotive ramble on non-citizen voting published by my Council Member, Aaron Faulx, in the April issue of the Riverdale Park government’s official bulletin. According to Faulx, “Our shared beliefs need to evolve toward inclusivity and engagement.”

He didn’t explain what he believes comprises these shared beliefs currently, much less why they’re flawed. But the shared beliefs he prizes are hollow at best and dangerously inadequate at worst. “Inclusivity” per se, after all, says nothing about substance. As a result, it seems to assume that even individuals who actively oppose each others’ most fundamental political and even philosophical principles can for any significant period of time work together to promote any version of common well-being – much less one bearing any resemblance to that which has served the nation so well for so long, though of course not perfectly. How on earth can that work? The only reasonable answer is, “It can’t.”

And if inclusivity per se (and its logical follow-on, “engagement”) cannot be treated as absolutes, then they inescapably need to be supplemented with some form of content. And just as logically, it can’t reasonably be assumed that those  unfamiliar with this content (through usually through no fault of their own to be sure) can instantly or quickly become familiar once they enter any political community – national, state, or local – from the outside. Some period of orientation – i.e., assimilation – is essential. And on a more practical level, some effective way of determining that the assimilation process has been completed is essential.

Reasonable people can disagree on the specifics of all of these procedural standards. But what is thoroughly unreasonable is insisting that they, and the institution of citizenship that necessarily incorporates considered procedural and substantive considerations alike, be dispensed with in the name of a mere shibboleth – whether “inclusivity” or its cousin, “diversity” – that has in and of itself has no organizational capabilities whatever. Even sadder is the seeming refusal of the “inclusivists” to recognize or admit that these related concepts of citizenship and voting rights have for decades (not long enough, to be sure!) been available totally irrespective of race, gender, or ethnicity.

So no wonder I found these “inclusivists’” recitation of the pledge to the flag Monday night so utterly ironic, and indeed bizarre – and why you should, too. For their stated views can only logically mean that they’re pledging allegiance not to a national political community worthy of the name, but to a certain tract of land and whatever agglomeration of individuals happens to be occupying it at any given moment. Why even continue to bother?

Im-Politic: New Evidence that “Hamilton” is (Embarrassingly) Fake History

Tags

"Hamilton", Alexander Hamilton, diversity, Forbes, Founding Fathers, history, Im-Politic, immigrants, Immigration, liberals, Lin-Manuel Miranda, Mike Pence, Ralph Benko, Trump

American elites’ views on immigration issues are just the gift that keeps on giving if you suspect that way too …

Continue reading →

Im-Politic: An Immigration (and Assimilation) Tale

Tags

assimilation, diversity, Im-Politic, Immigration, Open Borders, same-sex marriage, Somalia, tolerance, travel ban, Trump

I’ve long been wary of even using anecdotes in my writing – much less suggesting that they tell us anything useful about trends and developments worth writing about. But my conversation last night with a Somali-born cab driver in Washington, D.C. so strikingly reflected so many of my concerns about immigration and assimilation in America that I can’t help but describe it.

As regulars on this blog know, I’ve long been concerned with the nation’s recent failure to assimilate adequately huge cohorts of immigrants it’s welcomed from countries with dramatically different political, social, and cultural values and practices. As often noted by restrictionists on the political right in particular, many of these newcomers are arriving from societies that either don’t acknowledge or that actively reject the goals of diversity, tolerance, and gender equality that inevitably form much of the framework of the democracy we all cherish.

Today, I won’t be arguing about how these values should or shouldn’t be balanced against other important bases of a free society, but simply relaying the details of last night’s discussion of these matters with my cabbie. Because unless his views are unique in the recent immigrant community, they strongly back the claim that current immigration policies have greatly increased the number of inhabitants of this country who either know nothing of its major organizing principles, or don’t believe them. This fellow’s opinions also indicate that proposals to admit even more immigrants from regions like Latin America and the Middle East, or to legalize those here illegally and thus inevitably attract even bigger numbers, will further magnify the problem.

My ride started uneventfully enough as we pulled out of Union Station in D.C. and I looked forward to getting home after a long day doing business in New York. But soon after I recommended the best route to my neighborhood and he ended a brief phone call, he announced suddenly, “Well, because of this fellow Trump, I’ve decided I’m going home” – which turns out to be Somalia. “Trump just said he doesn’t like Somalia.” I’m sure he was referring to the president’s inclusion of Somalia in his travel ban proposals, but I didn’t want to get into a debate about that (i.e., Somalia’s longstanding lack of a government strong enough to enable satisfactory vetting). And I didn’t want to come right out and ask him if his presence here is legal (in which case, he would have no legitimate fears of any Trump-ian immigration policies). So I just replied that “If your status is OK, then there shouldn’t be a problem.”

We made some non-political small talk for the next few minutes and then out of the blue, he asked me, “What about this man together with man?” After a few moments, I realized that he was talking about same sex marriage. I told him that Americans apparently have decided that such marriages are acceptable – and that this conclusion held for women as well. He expressed surprise that “This just faded from the news” and I responded that it seems to have become very quickly and very widely accepted – save for some regions (like the South) and for many traditionally minded Americans elsewhere. The cab driver repeated his surprise that “All of a sudden, nobody talks about this any more” and I added that the change had indeed been both rapid and dramatic in recent years. Even former President Obama, I observed, had opposed same sex marriage ten years ago.

I added that what’s been more controversial has been the issue of whether Americans’ biological gender or gender identity should determine which restrooms they can access. His reaction was complete disbelief, and I confirmed that the situation is novel and puzzling even to many who broadly accept equal gay and lesbian rights. But I ventured that this debate, too, will likely be decided in favor of chosen gender identity, largely because so many large businesses believe that public opinion has sided with change.

We spent much of the rest of the conversation discussing where he should go if he decides to leave the country. His preference seems to be returning to Somalia, but I suggested that places like Canada and Australia are safer, more promising economically, and overall more welcoming to immigrants than the United States seems at present (after repeating that no one with “the right status” needs to leave the country).

Again, this is only an anecdote. Last night’s cab driver is only a single individual. I didn’t explore other such issues with him (or he with me). As suggested above, obviously many native-born Americans hold socially conservative positions that are as strong or even stronger. More important, I’m sure there are immigrants from these regions that either came here believing in these American-style values.

But the cab driver clearly had been here for quite a few years. It’s reasonable to suppose that his views on, for example, women’s role in society and in families is just as increasingly out of the mainstream as on same sex issues – and perhaps even more dangerously backward. It’s also certain that no systematic effort has been made to introduce him to more inclusive and egalitarian thinking. And it’s just as certain that the numbers of those utterly unfamiliar with or repelled by a critical mass of the civic religion that’s evolved in America – and that continues to evolve – will keep mushrooming unless the blithely come-one-come-all immigration and (non-) assimilation policies of recent decades are reversed.

The greatest irony, of course, is that the more America’s social and cultural identity is reshaped by these newcomers, the further it will move from the kinds of tolerance so dear to so much of the left wing of the Open Borders crowd. How much longer before they recognize that (1) everyone indeed is capable of becoming an American in the only sense that reflects the best of this nation’s history – and that’s still broadly enough supported to justify optimism about its fate; but that (2) to achieve this form of (fundamentally tolerant) assimilation, it’s still necessary to try.

Im-Politic: Signs that the Left is Getting It on Trump-ism

Tags

2016 elections, Arianna Hiffington, Bernie Sanders, Bill Clinton, cultural issues, diversity, Donald Trump, gender politics, Huffington Post, identity politics, Im-Politic, Immigration, Iowa caucuses, Jobs, John Judis, liberals, middle class, Robert Reich, sexual orientation, social issues, Trade, unions, Vox.com, wages, Wall Street Democrats, working class

On the eve of an Iowa caucus that could put Donald Trump firmly in the driver’s seat for the Republican presidential nomination, the nation’s intertwined political-media establishment seems pretty convinced of a remarkable trend spreading among long-time GOP fixtures: The party’s power structure is reluctantly but unmistakably making its peace with the idea that the bombastic real estate magnate and reality TV star will become their standard bearer and possibly the next president.

More recently, though, the chattering class has noted a development that might be at least equally important, especially for the longer term future of American politics. Many liberals are abandoning their standard portrayal of Trump as a simple racist, nativist, xenophobic, misogynistic, (ADD YOUR FAVORITE ADJECTIVE) demagogue.

Instead, they seem to be warming to the idea that Trump is a genuine economic populist, and one who is not only giving (needlessly crude) voice to widespread and legitimate working- and middle-class frustrations, but who is consistently pounding on specific themes with which progressives should be entirely comfortable. In fact, some of them have picked up on my claim from last September that there’s enough overlap between Trump’s positions and those of Democratic Socialist Vermont Senator Bernie Sanders to create the (eventual) possibility of a new and enduring left-right populist synthesis.

The latest sign has come from journalist John Judis, who for decades has been one of the few prominent media figures to focus on the politics of American economic issues and the economics of political controversies. Judis has just published an essay on Vox.com titled “This election could be the birth of a Trump-Sanders constituency.” In Judis’ words:

“Sanders and Trump differ dramatically on many issues — from immigration to climate change— but both are critical of how wealthy donors and lobbyists dominate the political process, and both favor some form of campaign finance reform. Both decry corporations moving overseas for cheap wages and to avoid American taxes. Both reject trade treaties that favor multinational corporations over workers. And both want government more, rather than less, involved in the economy.”

He continued:

“[E]ven if Trump and Sanders are denied the White House, their campaigns will have been extremely significant, perhaps even changing presidential politics forever. Their success in building a following in their parties is an early warning sign of discontent with the outlook that has dominated American politics for decades.”

I’d add, as I noted in my original post, that Sanders used to express realistic concerns about the impact of mass immigration on the wages and broader living standards of Main Street Americans. But when he decided to run for president, he apparently concluded that his campaign would make no headway among a critical mass of Democrats unless he went into full Hispanic-pander mode.

Of course, readers familiar with the national media world know that Judis has long been distinctive among his peers for recognizing how much of the Democratic party’s mainstream has drifted away from its working- and middle-class roots in favor of the kind of Wall Street-friendly outlook championed by former President Bill Clinton. I suspect he would also sympathize with the idea that many more left-leaning Democrats have become too enamored with an agenda centered around identity politics and cultural issues that not only offers nothing to their traditional – whiter – base, but that treats their own values with thinly disguised and often open disdain.

As a result, what really stands out about the Judis article is the venue. For since its launch in 2014, Vox.com has established itself as a bastion of elitist liberals who in particular strongly endorse the trade and immigration policies so harmful to native-born U.S. workers. Its staff is also keen on the idea that Democrats should be helping to speed America’s transformation into a society and economy that’s both younger and more diverse racially and ethnically, as well as one that’s more globalized and cosmopolitan, greener, and alienated from traditional beliefs about family structure, gender and sexual identity, and employment patterns. Think of hipsters enamored with the idea of the gig economy.

Moreover, the Judis piece isn’t alone. Last July, Huffington Post was so dismissive of Trump’s – then embryonic – candidacy on so many grounds that it famously announced that it would stop reporting on Trump’s run as part of its political coverage. Instead, the website explained,

“we will cover his campaign as part of our Entertainment section. Our reason is simple: Trump’s campaign is a sideshow. We won’t take the bait. If you are interested in what The Donald has to say, you’ll find it next to our stories on the Kardashians and The Bachelorette.”

At the end of last year, Huffington Post reclassified Campaign Trump. Arianna Huffington, the site’s founder, made abundantly clear that her contempt for Trump was as heated as ever. But just this morning, one of her Associate Politics Editors posted an item titled, “A Democrat Explains Why She’s Voting for Donald Trump.” The main reason? Her hometown of Dubuque, Iowa

“is suffering from a stagnant economy, and [she] is disappointed with Democrats for failing to adequately turn things around. When Trump, a wealthy businessman who espouses protectionist economic policies, rails against nations like Mexico and China, [subject Rebecca] Thoeni says she can relate.

“‘People at the company I work for, they lost their jobs. They’re sending those jobs to China,” she said.’”

For good measure, the article’s author contended that this Iowan “is one of many working-class whites who make up a large portion of the Trump phenomenon currently sweeping across the country. It is a coalition that spans Southern states and the Rust Belt, which has suffered from economic decline, population loss and urban decay. It also includes a good chunk of less educated Americans who do not have a college degree, and who feel like they’ve been ignored by leaders in Washington.”

A few days before, progressive stalwart Robert Reich wrote in a column about an epiphany he came to while touring the nation promoting his latest book:

“I kept bumping into people who told me they were trying to make up their minds in the upcoming election between Sanders and Trump.

“At first I was dumbfounded. The two are at opposite ends of the political divide.

“But as I talked with these people, I kept hearing the same refrains. They wanted to end “crony capitalism.” They detested “corporate welfare,” such as the Wall Street bailout.

“They wanted to prevent the big banks from extorting us ever again. Close tax loopholes for hedge-fund partners. Stop the drug companies and health insurers from ripping off American consumers. End trade treaties that sell out American workers. Get big money out of politics.

“Somewhere in all this I came to see the volcanic core of what’s fueling this election.”

Reich has by no means become a Trump-ite. But he acknowledged that”

“If you’re one of the tens of millions of Americans who are working harder than ever but getting nowhere, and who understand that the political-economic system is rigged against you and in favor of the rich and powerful, what are you going to do?

“…You don’t care about the details of proposed policies and programs.

“You just want a system that works for you.”

I could go on. But more important at this point is to note the publication of an article in The New York Times yesterday indicating that what’s happening is that the chattering class’ liberal wing is finally getting a message being sent it by the grass roots. The piece, by correspondent Noam Scheiber, reported a “form of anxiety…weighing on some union leaders and Democratic operatives: “their fear that Mr. Trump, if not effectively countered, may draw an unusually large number of union voters in a possible general election matchup. This could, in turn, bolster Republicans in swing states like Ohio, Pennsylvania, Michigan and Wisconsin, all of which President Obama won twice.”

And according to Scheiber, these Democratic stalwarts weren’t blaming American workers for succumbing to racism, xenophobia, etc. In their view, “The source of the attraction to Mr. Trump, say union members and leaders, is manifold: the candidate’s unapologetically populist positions on certain economic issues, particularly trade; a frustration with the impotence of conventional politicians; and above all, a sense that he rejects the norms of Washington discourse.”

There’s of course a distinct possibility that none of this will matter on Tuesday morning. Perhaps a Trump loss in Iowa – even a close one – will puncture the aura of invincibility and even inevitability that some believe is surrounding him, and trigger a collapse of his White House hopes. Or Trump could finally hurl one bombshell that turns off even his hard-core supporters. Or maybe once enough of his competitors drop out of the race, one of Trump’s remaining rivals could consolidate enough of the anti-Trump vote under one banner to send him to defeat. (Trump has never so far won a majority of Republican primary voters in any poll.)

But even if Trump flames out at some point, it’s increasingly clear that “Trump-ism” will remain with us. And if it finds a champion who can combine Trump’s passion with some softer personal edges and a somewhat thicker skin, both wings of the chattering class may regret that they don’t have The Donald to kick around anymore.