In the aftermath of Judge Ketanji Brown Jackson’s confirmation to a seat on the United States Supreme Court, there’s a lot still to be said about the way federal judicial nominations are handled. Most of it bad. Like Humpty Dumpty, the process is so badly broken that “all the king’s horses and all the king’s men” may never get it back together again.
Each party blames the other for the breakdown. Republicans, heels dug in, say, “What about Bork?” Equally immovable Democrats respond, “What about Merrick Garland?” Rare these days is the senator who can vote to confirm a high court appointment made by a president of the other party without incurring substantial political problems with the folks back home.
The reasons for this are not just partisan. As the parties have polarized, so too has their view of the proper role of the federal judiciary. Progressives prefer nominees who are “activists” and who consider the public policy implications of what they hand down in addition to or over and above issues of constitutionality. They, like the late Justice William O. Douglas, believe they should be guided by the penumbras currently emanating from the Constitution rather than its text alone, allowing, even requiring them to “make law from the bench” without regard for textual limitations.
Conservatives seek out nominees who feel bound by limitations beyond precedent, including the belief that the words used in the Constitution had a clear, specific, common meaning understood by reasonable people at the time it was written and which are still determinate today. That philosophy of “originalism,” held among others by legendary Justice Antonin Scalia, is best expressed axiomatically as “The Constitution says what it means and means what it says.”
Over time, these diametrically opposite views regarding the role of a Supreme Court justice have turned the confirmation process into something resembling a partisan political campaign. President Joe Biden acknowledged as much Friday at the White House at an event with Judge Jackson following the Senate vote.
“I knew the person I nominated,” he said, “would be put through a painful and difficult confirmation process. But I have to tell you: What Judge Jackson was put through was well beyond that. There was verbal abuse, the anger, the constant interruptions, the most vile, baseless, vile [sic] assertions and accusations.”
Biden must have missed the Kavanaugh hearings. He didn’t miss the Bork or Thomas hearings, though. He was not only present as they were publicly flayed regarding their opinions and had their character assassinated, he presided over them. And each one of them contained more “baseless, vile assertions and accusations” than anything Judge Jackson experienced.
It’s no coincidence the coarseness now infecting the judicial confirmation process started when Biden was chair of the Senate Judiciary Committee. He knows the role politics plays in the process of getting someone on the federal bench, embracing it when running for president in 1988 and 2020 when he refused to commit for or against a proposal to “pack” the Supreme Court should he win.
This leaves Judge Jackson in an unfortunate position. For the rest of her life, or at least for as long as she is on the Court, there will be just as many people wondering if she was the best choice for the job or if her appointment was simply the most politically expedient for a president who needed to keep a campaign promise.
As far as the Senate vote goes, congratulations are due to the future justice now that she has been confirmed. It is a high honor of which she will hopefully prove herself worthy. There’s reason for concern she won’t, but not the ones you might expect.
Biden won the election. He had every right to pick a liberal, activist judge. If qualified, she should be confirmed despite that. By deciding to focus on what frankly were ancillary matters during her confirmation hearings, the senators on the Judiciary Committee rejected the opportunity to explore just how far outside the mainstream of American legal thought she might be and if any of her views were extreme enough to disqualify her.
Such a reason might exist but was left largely unexplored. In a set of written questions submitted to her by members of the committee, Judge Jackson was asked to explain, in her own words, “the theory prevalent among members of the Founding Fathers’ generation that humans possess natural rights that are inherent or inalienable.”
She answered well at first, explaining this as the being reflected in the Declaration of Independence – some might call it the cornerstone of the entire document – that certain rights come from “our Creator,” as Jefferson put it, and are, therefore, “inalienable.” These include, she wrote the right to “life, liberty, and the pursuit of happiness” and are often referred to as “natural rights.”
This is more than just the mainstream view of the common law, embraced by liberals and conservatives alike for centuries. It is foundational to the American democratic system. When asked if she herself held that view, she replied, “I do not hold a position on whether individuals possess natural rights.”
This is a jarring admission. At least it should be. If our most basic rights like the right to life and liberty do not come from “our Creator,” if they are not inherent, then they can only be made by man. If they are made by man or granted by man, they can be taken away.
Admittedly, there is a difference between having a right and being able to exercise it, which is something Supreme Court justices often must consider in the cases before them: Has an action by the government interfered with an individual’s ability to exercise an inherent right? Judge Jackson’s position was not made clear in a follow-up question seeking to clarify her views.
Instead, she responded evasively, directing those reading her response to her answer to a previous question: “As a sitting federal judge, all of the Supreme Court’s pronouncements are binding on me, and under the Code of Conduct for United States Judges, I have a duty to refrain from critiquing the law that governs my decisions, because doing so creates the impression that the judge would have difficulty applying binding law to their own rulings. Consistent with the positions taken by other pending judicial nominees, it is my testimony that, as a general matter, it would be inappropriate for me to comment on the merits or demerits of the Supreme Court’s binding precedents.”
That tells us nothing. It is a subject that those who sought to keep Judge Jackson off the high court should have pursued with greater force. Does she believe we have an inherent right to life and to liberty, or doesn’t she? This is one of the most basic of the many complex issues the justices on the high court are called upon to consider every term. The American constitutional republic is predicated on the notion that the government’s respect for all opinions and people, even those in the minority in any group or on any issue, is a requirement. It can be inferred from her answer that she does not agree and may fall back on that position but only when it is useful to do so in furtherance of her arguments in her writings.
Hopefully, this will not prove to be a real concern. Either she affirms through her writings from the bench that her views are, in fact, in line with the thinking of the Founders or because she will be forever in the minority on the Court on any decision handed down by the Court where belief in inherent rights matters. Elections, as they say, have consequences. Her elevation to the Court is one of them. Something to remember for next time.
The lockdowns mark the start of a ride we can’t get off.
Two years ago this week, the United States shut down. Churches, schools and businesses went dark. Weddings, funerals, and birthdays went silent. City streets stood empty, with an eeriness closer resembling occupied Paris than the bustling hubs they’d been just days before.
Two years later, as the last of the mask mandates for school children falter and crack, it’s tempting to believe our nightmare is finally over. Just as the disease is going to haunt us a long while, however, so too will the effects of how we tried to fight it.
Americans’ relationships with our politicians, bureaucrats, schools, media, police, and churches are fundamentally altered. Indeed, the entire West’s relationships with these major segments of society are forever remade. As we look out on the wreckage of two years of Covid policies, as well as our spiking fuel prices, rocketing inflation, a contested election, a Chinese Olympics, and a land war in Europe, it’s increasingly clear that, far from standing at the end of a dark era, our civilization teeters unsteadily at the very beginning of one.
It’s hard to notice at first. The modern West has become so accustomed to a slow, steady decline — the kind Merle Haggard sang about, and Ronald Reagan ran against — that complaining about it has become cliché; like the angry old man waving his cane.
More than that, it’s very tempting to view the past two years as separate from our other major problems. But just as Black Tuesday began an era marked by the Depression, the Dust Bowl, the New Deal, the Second World War, and a fundamental reshaping of the American life, so too will the Lockdowns mark the start of a ride we can’t get off.
Even in states that have long since shrugged off the bureaucrats’ Covid demands, trust is broken. The people had believed in March 2020 that if they did their parts, all would soon be well. As President Calvin Coolidge famously said, “The chief ideal of the American people is idealism… [and] the chief business of the American people is business.”
Neither Americans’ idealism nor our industry were rewarded, however. From March 2020 on, ours was rule not by people, but by bureaucratic diktat.
Our politicians betrayed us: flying abroad, getting haircuts, going maskless, holding parties, and dining out while also closing schools, forbidding gatherings, banning amenities, and demonizing all who resisted — or even questioned — their orders.
Our corporate media betrayed us: propping up liars and fools, tearing down all who spoke against their champions, and spreading fear and hatred of dissent as far and wide as their words would carry.
Our teachers betrayed us: using Covid to gain a grab bag of vacation time, control over parents, wage hikes, and other unrelated perks, all while punishing school children with years of masks, separation — and the educational and developmental retardation those rules cost.
Even our much-vaunted hospital workers betrayed us: keeping dying husbands from their dying wives, grown children from their elderly parents, brothers from their sisters, and babies from their mothers — all to ensure “Covid safety.”
As hard as it seems, much of this might be good. Not that our politicians, media, teachers, and health care are broken — as the most important essay of 2021 laid bare — but that Americans now recognize just how broken they all are.
Other betrayals, however, are fresher. While corruption among our most powerful religious leaders is older than the Bible itself, when our government declared religion a disposable pastime, many of our religious leaders publicly obeyed. When they bowed before the bureaucrats, a trust was broken, and America was left with one more central civil institution weakened when we needed it strengthened.
The family — the political unit as old as the body politic itself — also suffered greatly. While American political fights have frayed blood relations since Benjamin Franklin fought his loyalist son, the past two years have seen so marked an increase in familial destruction that few of us are left untouched.
This past Christmas, for example, people across the country told their relatives they would not be welcome if they hadn’t taken the vaccine. You probably know more people this hurt than you realize; many of them, sad and embarrassed, hid it, claiming they simply couldn’t make the trip this year.
Then there are the grandparents across the country who have never seen their grandchildren. In the past month alone, I’ve met two different couples seeing theirs for the first time ever — provided they quarantined for two weeks first, and then took a test.
The kind of fear and intolerance it takes to bar your mother from your children extends to broader society, too. Cops, hospital workers, and many others have lost their jobs over refusals to take the shot, while corporate media and its viewers loudly cheered for even harsher penalties. Confronting and reporting on businesses and people who break Covid restrictions is actively encouraged by both government and media.
Our inability to dissent from the latest Covid decree penetrates our society so deeply, liberal comedy show “Saturday Night Live” is now openly mocking how closely American liberals have had to monitor even their private conversations with friends.
We’re now so comfortable with the concept of censoring “disinformation,” it’s extended well beyond Covid. These days, it’s not surprising to see the hosts of a daytime TV show for women casually call for the investigation (and possible imprisonment) of journalists and politicians who express opposition to something they support — in this case, an American war in Ukraine.
This sort of thing has become actually monotonous: Censorship, investigation, and even arrest are offered daily as solutions to problems as mundane as political or medical disagreements. Has the phrase “We’re all in this together” ever rung so hollow?
As in past eras of marked trouble, struggle, and decline, not all our problems are plainly linked; but they coalesce in their effects.
We find ourselves more divided than we’ve been in 150 years, and so less able to handle what comes our way. Many of our civil institutions — long sick — now seem terminally ill. Distrust and enmity run high, and why shouldn’t they?
The result of these divisions: As we plunge into the next series of crises — rapid inflation, destabilized fuel prices, the real prospect of world war in Europe — we have fewer tools to handle them, less willingness to try, and more suspicion of our fellow Americans than any time in over a century.
Taking it all in, we know that we’re weaker than when we began 2020. Taking it all in, we know that far from returning to normalcy, we’re entering a period of deadly turmoil, with enemies foreign and domestic intent on taking advantage of our divisions, our distrust, and our dangerously unsteady economic situation.
We’ve been challenged before, even in modern times. The Sept. 11 attacks rocked us like we hadn’t seen since Pearl Harbor, yet we soldiered on. What’s finally missing, however, is that general feeling of confidence.
We no longer share an understanding that no matter the monsters we’d face — and we face many, here and abroad — that everything would be OK; that the American Way will go on.
“Overriding everything else,” Walter Lord wrote in his 1955 book on the sinking of the HMS Titanic, “the [disaster] also marked the end of a general feeling of confidence.”
“Until then men felt they had found the answer to a steady, orderly, civilized life. For 100 years the Western world had been at peace. For 100 years technology had steadily improved. For 100 years the benefits of peace and industry seemed to be filtering satisfactorily through society.”
“In retrospect,” he continued, “there may seem less grounds for confidence, but at the time most articulate people felt life was all right. The Titanic woke them up. Never again would they be quite so sure of themselves.”
Within two years of the sinking, the First World War began. By its end, its hubris, violence, and indifference to personal suffering destroyed a generation — and cut our civilization so deeply, the damage inflicted is still seen written on our world today.
The men who, in relative peacetime, placed supreme confidence in their steel ship against the great blue sea might only chuckle at the hubris of their successors, who had supreme confidence they could master a disease they didn’t know.
We in the West, though, can be confident of one thing only: These past two years have cut us deeply, and will haunt us for many more to come.
What’s not yet written is whether we overcome. That will be up to us, and God.
Pray for America.
Speaker Nancy Pelosi (D., Calif.) on Sunday claimed that “defund the police” is “not the position of the Democratic Party” after Representative Cori Bush (D., Mo.) recently endorsed the slogan.
“Well, with all the respect in the world for Cori Bush, that is not the position of the Democratic Party,” Pelosi said during an appearance on ABC’s This Week. “Community safety, to protect and defend in every way, is our oath of office. And I have sympathy — I — we’re all concerned about mistreatment of people.”
Pelosi touted the House-passed Justice in Policing Act, which would overhaul national policing standards, saying, “Make no mistake, community safety is our responsibility.”
The House speaker’s comments came in response to Bush’s statement last week that “‘defund the police’ is not the problem.”
“We dangled the carrot in front of people’s faces and said we can get it done and that Democrats deliver, when we haven’t totally delivered,” she said, adding that she tells her Democratic colleagues that if they had “fixed this” before she got there she wouldn’t have to “say these things.”
She added that she “absolutely” felt pressure from fellow Democrats to change her position, saying they have told her the phrase is not helpful for them with their own constituents.
Meanwhile, despite Pelosi’s claims, numerous Democrats have supported the “defund the police” movement in the years since George Floyd’s murder in 2020.
Members of the progressive “Squad” have all advocated for defunding or abolishing police.
Representative Ilhan Omar (D., Minn.) said in June 2020: “The ‘defund the police’ movement, is one of reimagining the current police system to build an entity that does not violate us, while relocating funds to invest in community services. Let’s be clear, the people who now oppose this, have always opposed calls for systematic change.”
In April 2021, Representative Rashida Tlaib (D., Mich.) called policing in the U.S. “inherently & intentionally racist,” saying she is “done with those who condone government funded murder.”
“No more policing, incarceration, and militarization. It can’t be reformed,” she said.
The same month, Representative Ayanna Pressley similarly said of policing in America: “We can’t reform this.”
Representative Alexandria Ocasio-Cortez said in June 2020: “Defunding police means defunding police. It does not mean budget tricks or funny math. It does not mean moving school police officers from the NYPD budget to the Department of Education’s budget so the exact same police remain in schools.”
Meanwhile, Vice President Kamala Harris was also sympathetic to the movement in June 2020 when she was asked by ABC’s George Stephanopoulos if she supports proposals to re-appropriate police funding, including a proposal in Los Angeles at the time to divert $150 million from the police budget into other community priorities.
“I support investing in communities so that they become more healthy and therefore more safe. Right now what we’re seeing in America is many cities spend over one-third of their entire city budget on policing. But meanwhile we’ve been defunding public schools for years in America, we’ve got to reexamine what we’re doing with Americans’ taxpayer dollars, and ask the question are we getting the right return on our investment? Are we actually creating healthy and safe communities?” Harris said at the time.
When Sen. Joe Manchin announced on Fox News that he could not support President Biden’s Build Back Better legislation even at its reduced price, he took heat from White House Press Secretary Jan Psaki, followed quickly by criticism from journalists and pundits.
“How will the nation ever address the enduring market failures, glaring inequality, and big social-safety-net gaps that the Build Back Better plan was designed to tackle?” asked New Yorker columnist John Cassidy. Manchin was also accused of voting against his state’s interests, while others attributed his no vote to the fact that he takes campaign money from the coal, oil and gas industries. This week, the coal miners’ union upped the pressure by calling on West Virginia’s senior senator to vote for BBB.
As a political scientist who has studied and written about Congress for over 50 years, I do not find it surprising that an incumbent more conservative than the average Democratic senator should balk at legislation he considers too liberal. Nor was it surprising when a Republican who occupied a space on the spectrum to the left of the average GOP senator vexed party leaders by voting at the last minute to preserve the Affordable Care Act, which is what John McCain did.
I don’t find any of that surprising because I was around when Bill Clinton came to office — after 12 years of Republican presidents — with high hopes for universal health care, a large jobs stimulus plan, tax increases, family leave, and a major energy tax. A brief review of some of these measures and who determined their fate is useful.
The energy tax (calculated on British thermal units) was reduced to a small increase at the gas pump by moderate Senate Democrats from oil patch states, most specifically John Breaux of Louisiana and Oklahoma’s David Boren. That duo, plus Sun Belt moderates such as Sam Nunn and Dennis DeConcini made sure that Clinton didn’t derail the North American Trade Agreement over environmental and labor issues, which is what labor-friendly colleagues were pressuring the administration to do. In order to get his job stimulus bill through Congress, Clinton jettisoned some urban spending and an expansion of student loan grants. Legislation expanding national service programs had to be cut by over half before centrist Democrats would vote for it. And the much-touted universal health care bill shepherded by first lady Hillary Clinton never made it out of the relevant House committees. Reps. Mike Andrews of Texas and Jim Cooper of Tennessee were among those who objected to the cost.
The same pattern held when the Republicans took over Congress in 1995 for the first time in 40 years and tried to enact various elements of their “Contract With America.” The Senate during 104th Congress had only 52 Republicans, meaning that it needed the votes of every centrist Republican to pass anything. Two states alone prevented conservatives from acting on balanced budget legislation, term limits, and efforts to curb unfunded mandates. Oregon’s delegation (Mark Hatfield and Bob Packwood) and Maine’s (William Cohen and Olympia Snowe) were made of confirmed moderates. These four, along with Arlen Specter of Pennsylvania, Jim Jeffords of Vermont, and Democrat-turned-Republican Ben Nighthorse Campbell of Colorado forced the leadership to simply abandon the idea of reducing Medicare and Medicaid.
Given this history, no one should be surprised that a moderate (or conservative, if you prefer) Democrat elected from a conservative state that Joe Biden lost by nearly 40 percentage points should balk about transformative progressive legislation or that such a lawmaker can determine the fate of major legislation. As I say, it’s happened before. The George W. Bush administration began with a 50/50 Senate with Vice President Dick Cheney casting the deciding vote in case of ties. Some of Bush’s conservative policies ranging from tax cuts to drilling in the Arctic National Wildlife Refuge were watered down by a combination of more liberal Republicans (including Snowe and Specter), along with newer additions Lincoln Chafee and Susan Collins of Maine. Jim Jeffords actually left the GOP, swinging the balance in the upper chamber.
Yet today things are different. What distinguishes Manchin and his treatment from that of Breaux, Boren, Specter, Snowe and the others? The first thing is that there are not many Democrats elected to the Senate from “red” states anymore. I’m talking about Alabama, Arkansas, Iowa, Kentucky, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and West Virginia. In Clinton’s first Congress, 20 of the 26 Senate seats representing these states were held by Democrats. In the present Senate, there is one, and only one, Democrat elected from those 13 states. Yes, his name is Joe Manchin.
In the 103rd Congress, the states of Delaware, Minnesota, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington had more Republican than Democratic senators. In the present Senate these states have no Republican senators. The sorting and polarization that has occurred over the last three decades results in fewer moderate senators of either political party. The smaller the number of such lawmakers the more likely they are to be targeted for criticism and electoral challenge. In the Clinton era it was harder to assail them because there were more of them — and they were people whom liberals might need on the next key legislative vote.
The overall effect of party sorting is that voting in the Congress has become much more polarized. In the Senate during Bill Clinton’s first term in the White House, Americans for Democratic Action (a liberal organization that awards numerical scores to members of Congress) recorded an average of 75% percent support among Democratic senators for liberal policy, with 13 of them showing less than two-thirds support for ADA-backed legislation.
In the same Congress, the ADA gave Republican senators an average score of 20%, with seven moderates registering scores between 40% and 75%. These scores are in sharp contrast to the contemporary Senate where, in 2020 (the last year data are available), the average Democratic score was over 95% percent while Republicans averaged less than 4%. The lowest Democratic senator — no surprise — was Manchin, who voted the liberal position 75% of the time, a score equal to the average in the 103rd Senate.
On the Republican side there were only two senators who scored over 10% on the liberal index with the high score being 25%. In sum, in the sorted and polarized Congress there are fewer and fewer moderates. And while moderates like Manchin and Arizona’s Kyrsten Sinema still impact legislative results, they increasingly face scathing attacks from members of their own party. Manchin’s position was labeled “anti-Black, anti-child, anti-woman and anti-immigrant” (Rep. Cori Bush) and his reasoning “bullshit” (Ilhan Omar). House Progressive Caucus leader Pramila Jayapal claimed publicly that Manchin “betrayed his commitment not only to the president and Democrats in Congress but, most importantly, to the American people.”
In the days when there were more centrists in Congress, one did not find the intensity and number of such intra-party attacks. Much is lost in addition to civility. Those senators closest to the 50th vote in the chamber have always transformed policy. The end result in the Clinton and Bush presidencies was legislative compromise that, in each case, prevented the party in power from veering too far in the direction of the ideological purists and their party’s left or right base.
In the politically sorted and polarized Congress today, there is little tolerance for anything other than extreme policy. This is one obvious reason why the American people do not think highly of the Congress and its policy process. In the final YouGov poll of Donald Trump’s presidency, only 14% of registered voters approved of the job Congress is doing. Those numbers have ticked up slightly in the past year, but in the RealClearPolitics poll average, a solid two-thirds of voters disapprove of Congress.
The ultimate question that liberal purists must ask themselves is: How do we win a majority — or get anything accomplished — if Democrats such as Joe Manchin and Rep. Abigail Spanberger (pictured) of Virginia are not progressive enough? Republicans face an even more difficult quandary: How do they build sustainable majorities if everyone who accepts the outcome of the 2020 presidential election is not fit to be a GOP candidate for elective office?
It is these days hard to imagine West Virginia electing a Democrat. If Manchin were not in the Senate, where would the liberal agenda be? Without winning Senate and House races in more moderate or conservative states like Arizona, Montana, New Hampshire, Ohio, Pennsylvania and West Virginia, it is hard to see how Democrats will maintain control of Congress in future elections. The intense criticism of Manchin and Sinema for defending the filibuster and questioning Build Back Better is unlikely to move crucial centrist-minded independents to maintain Democratic control of both branches of the Congress. If and when Republicans regain the majority, they will be faced with the same purity problem but over a different set of issues, mainly those revolving around Donald Trump’s ambitions. In sum, for both parties, purity is fatal for solving problems and sustaining majorities.
At the end of the day, senators care more about protecting themselves and their colleagues from unpredictable, inconvenient floor votes than they do about passing legislation.
Official Washington’s conventional wisdom about the Senate filibuster is a fairy tale. It is utterly unmoored from the choices being made by individual senators, party caucuses, and the body as a whole. Every person who has ever told you that the mean, nasty, outdated legislative filibuster is the source of Senate gridlock and the obstacle to common-sense legislating in Congress has either swallowed, or is peddling, a lie.
In an op-ed in the Washington Post this week, Ethics and Public Policy Center scholar Henry Olsen suggests requiring filibusters to be at least nominally bipartisan as a way of solving the familiar filibuster “problem.” What follows is not a fisking of Olsen, who is a good guy and perhaps the best electoral analyst in America today, but a corrective to the apparently universal pundit-class misunderstanding about what’s really going on inside “the world’s greatest deliberative body.”
The mistake everyone makes is looking at Senate inaction and asking, “How can we change Senate rules so it can start legislating again?” The better question is, “Why did the Senate stop legislating in the first place?”
The answer isn’t “gridlock,” any more than “a car” drove through that parade in Wisconsin. Somewhere along the way, senators’ behavior changed. It’s not a coincidence this happened along the same timeline as the polarization of the parties over the last 30 years. Partisan filibusters were harder, and bipartisan legislating easier when the Senate had dozens of conservative-leaning Democrats and liberal-leaning Republicans.
Before moving inside the chamber, let’s take stock of an important but easily overlooked point: Senate Democrats as a group are much farther left than they were in, say, 1990, and Senate Republicans are more uniformly conservative.
Because pundits and people who read them tend to be consistent ideologues themselves, this kind of polarization seems normal, even enlightened. But all it really means is that both parties in the Senate have drifted away from—abandoned, even—the middle of the country.
The public didn’t lurch left or right. Senate rules didn’t change. Congress is simply less representative of the American people than it used to be. Pew’s well-worn ideological scatter chart from the 2016 election exit polls illustrates the point below.
The sweet spot in American politics would seem to be left-but-not-too-left-of-center on economic issues and right-but-not-too-right-of-center on cultural issues. (I’m conservative on both, for whatever it’s worth.) But today, congressmen and senators tend toward the upper-right or lower-left—the ideological extremes—with elite journalists overrepresented in the nearly empty lower-right: woke private-school parents.
The strike zone for both parties looking to forge a majority, then, should be the upper-left. This would be your pro-lifers for universal health care, men who want only their unions to build the border wall, women who want to raise taxes to build more prisons for pornographers and drug dealers. Such people—real, live, working-class moderates, the sort who decide our national elections—are thin on the ground in Washington, D.C. Indeed, they seem downright unwelcome in both parties.
Nuking the filibuster to establish a majoritarian Senate, in the context of our actual country, would only empower out-of-touch, unpopular, ideological extremists to unilaterally impose their outré elite values on a public that dislikes them. Constitutionally speaking, in the morality play of congressional politics today, the filibuster is the good guy. It’s not the hero we deserve, but the one we need, stopping Republicans from gutting social programs and Democrats from banning guns or red meat.
So, if the Senate’s rules aren’t the cause of Senate inertia, what is? Snarky Washingtonians will say “Republicans.” But that’s silly. Both sides take up the others’ tactics whenever the Senate changes hands. Gridlock is not an external force exerted on the Senate.
Nor is gridlock a condition imposed on it by an uncooperative minority. No, inaction is always a policy choice affirmatively, consciously taken by the majority. “Gridlock” and “obstruction” are weasel words Senate majorities use to duck responsibility for their own decisions.
Contrary to beltway shorthand, passing bills through the Senate doesn’t require bipartisan compromise. It just requires compromise, full stop. There’s a difference. Sixty-vote majorities could be found on almost any issue, any week of any year, through an open amendment process on the Senate floor. Heck, they could call up a blank bill for floor consideration, and let every Senator offer whatever amendment he or she wanted, and before too long, a final bill that could get 60 votes would emerge.
Both parties know this, and refuse to do it. Why? Because an open amendment process—“the wild west,” they call it—would force senators to take amendment votes that would, quelle horreur, lay bare their actual beliefs and policy priorities to their constituents.
That’s it. That’s the whole story of Senate “gridlock.” Not the filibuster, not cloture, not grandstanding, not Donald Trump or “norms,” or “obstruction” or any other nonsense you’ve been told.
At the end of the day, senators care more about protecting themselves and their colleagues from unpredictable, inconvenient floor votes than they do about passing legislation. This, and no other reason, is why both parties now legislate via secret negotiations, followed by an obnoxious, rigged floor process (“filling the tree”) that blocks all amendments except the ones mutually agreed to by the party leaders.
Remember, the amendments this process blocks are not the ones that wouldn’t pass, but the ones that would. Most Democratic senators don’t want to have to vote on popular Republican amendments to, say, curb immigration or protect gun rights. Likewise, most GOP senators don’t want to have to defend a vote against a higher minimum wage or increased spending for children’s health care.
All kinds of bills and amendments could get 60 votes in the Senate today. The problem is, they would be the wrong 60 votes—majorities representing the public as such instead of their party. When the dust settled, lots of incumbents on both sides would invite dangerous primary or general election challengers next time they faced the voters.
A good example of such a bill is the Higher Wages for American Workers Act, introduced by Sens. Mitt Romney, R-Utah, and Tom Cotton, R-Ark. It would raise the federal minimum wage to $10 and mandate the “E-Verify” instant immigration-status test for all employers.
To normal Americans, this might sound like a sensible compromise; to Washington insiders, it’s a five-alarm fire. It would be a brutal floor vote, triggering dozens of Club for Growth- or Squad-backed primary challenges and crippling TV ads come November.
If Senate leaders ever opened up the floor, that’s the kind of legislation senators would face: popular, cross-partisan, and career-threatening. Party leaders—always at the behest of their constituents, the senators themselves—see their job as never letting an organic, unchoreographed, cross-partisan majority work its will on the floor on behalf of the American people.
Instead, majorities negotiate bills to get all of their team’s votes plus just enough of the other team’s to pass maximally partisan legislation. To leaders, this is a correct 60-vote majority that, with proper supervision and stage direction, may be permitted to pass bills through the United States Senate.
Ultimately, Senate majorities do not see gridlock as a frustrating, inferior alternative to passing legislation. They see it as a superior alternative to the transparency and accountability that comes with discharging their constitutional responsibilities.
Not convinced? When was the last time you saw a Senate majority of either party really put their shoulder to the wheel to break a partisan filibuster? I don’t mean whining to cable news or talk radio. I mean work: staying in session all night, for days on end, forcing late night attendance, including the sick old men, the cancellation of weekend plans, missing piano recitals and family weddings? Never.
If Senate majorities really want to pass legislation, they could, anytime, through a combination of compromise, transparency, and the exertion of physical energy. This approach has not been tried and found wanting, but found inconvenient and left untried.
Finally, those on the left who think a post-filibuster Senate would help their cause are really missing the forest for the trees here. Senate Democrats are never going to nuke the filibuster to “enshrine Roe’s protections” in federal law, as New York Times columnist Ezra Klein proposed on Twitter yesterday—not because they are weak or deferential to norms, but because Roe is really, really undemocratic.
Even without a red wave election, Klein’s Roe Act would quickly be watered down to a restrictive bipartisan compromise he would hate. And when the next red wave did come, the Democratic Party would be left limping for a generation.
The vast majority of federal policies today rendered untouchable by the Senate’s 60-vote cloture threshold was written between the 1930s and 1960s when even Republicans were proud liberals. Are three years of Roe-lite or some half-baked Green New Deal ramp-up really worth giving President Ron DeSantis, House Speaker Jim Jordan, and Senate Majority Leader Ted Cruz free-rein to rewrite the Great Society and New Deal, the APA, the NLRB, NEPA, civil service, education, and immigration law in one swing?
They would decentralize and defund dozens of power centers within the progressive movement. The left has unimaginably more to lose from a majoritarian Senate than the right.
As a conservative who would welcome lots of those reforms, I nonetheless recognize that our system is built for consensus and stability. In America, it’s ideologues like Klein and me who are the weirdos, not the majority of the country with supposedly less consistent views. It’s good that we never have too much power.
At any given moment, both parties are advancing, on different issues, popular and unpopular ideas. The way the Senate is designed to work is, the popular ideas get creatively cobbled together and passed as consensus compromises. And the unpopular ideas are discarded as slogans for the performance artists in the House.
The only reason this doesn’t happen today is that senators’ real, if unstated, top priorities are personal convenience and partisan positioning. Passing major legislation is a distant second or third. What we see on C-Span2 every day is the majority applying minimal-to-modest effort to pass legislation, and maximal effort to protect their seats and undermine the other side.
The Senate’s rules do not stop it from legislating. It’s the senators themselves, entitled and vain, cowering in the shadows behind the one thing in Washington with the courage to stand up for all of us, simultaneously against the mob and the elite. The filibuster isn’t our hero. It’s a silent guardian, a watchful protector. A dark knight.
American decline is not fated—unless our leaders make it so
Bleak days. The border, murder rates, inflation, Afghanistan, the pandemic—things are not going well. The president’s job approval rating continues its slide. Congress squabbles over government funding, debt ceilings, and budget reconciliation, while pundits argue over whether, in the words of one prominent historian, “The United States is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into red and blue enclaves.”
These words horrify. Are they accurate? The degradation of public morality, evident in scenes of fanatics chasing U.S. senators into restrooms and chanting obscenities at a presidential motorcade, suggests they might be. The empirical data do too. The University of Virginia Center for Politics and Project Home Fire’s recent surveys of Joe Biden voters and Donald Trump voters revealed a profound distrust between the two camps. The pollsters went looking for common ground, only to find it in the 41 percent of Biden voters and 51 percent of Trump voters favoring some form of secession and disunion. The idea of a “national divorce” has traveled from the fever swamps to the social network (the distance is short).
The question of how to avoid coruscating polarization and political violence ought to be at the center of public debate—especially after the events at the Capitol on January 6, and especially for individuals who profess support for law and order, individual liberty, and America’s constitutional structure. The trouble is that most discussions of keeping America from coming apart are themselves built around totalizing and apocalyptic presuppositions.
The alternatives on offer: Either the election reforms favored by Democrats become law or authoritarian rule will descend on America; either the $4.5 trillion Build Back Better Agenda becomes law or Trump will turn this country into Hungary; either Republicans win in 2022 and 2024 or some combination of Joe Biden, Kamala Harris, and Dr. Anthony Fauci will impose Marxist rule. Not only are these choices hyperbolic and false. They amplify the very antagonisms they seek to reduce by suggesting that the only way out of our dilemma is for one side to enjoy complete victory.
Just when politics is most in need of a cooling-off period, interested parties have upped the stakes of politics to national, civilizational, and, for some, global survival. And when survival is your primary end, you are tempted to use any means to achieve it. Even extrajudicial ones. The task of the moment is to persuade Americans that the set of rules and guidelines set forth in the Constitution allows them to deal with America’s problems. “Structural” change, from either the left or the right, is unnecessary.
The “fight” must be redirected toward the everyday challenges of American citizens, not the symbolic battles that play out each night on cable news. The agents of change must be real people, building and participating in real institutions, concerned with the real wellsprings of human flourishing, such as family, community, and faith. Trolls and bots engaging in virtual flame wars and inciting social media mobs do not improve the situation. They ruin it.
We have spent so many years analyzing what brought America to this impasse that we have forgotten to think seriously—that is, to consider programs of action that might not confirm our biases—about how to get out of it. We have forgotten the importance of human agency, of leadership. Leaders motivate the public, define options, set the agenda, and model standards of behavior. They are meant to inspire confidence. Our leaders are no help.
We are caught in a leadership deficit doom loop. Our elected officials cater to the most agitated and unruly members of their coalition. They limit their imaginations. They frame their agendas around the mistaken assumption that electoral victories are ideological mandates. They are not role models. Nor do they earn our confidence—unless we are the marks in a confidence game.
Our political leaders are stale. They are calcified. It cannot be a coincidence that since 2017 the presidents of “Late Soviet America” have been septuagenarians, the country’s oldest two chief executives, respectively. It cannot be an accident that as writers for the New York Times assert that America has entered “terminal decline” the speaker of the House of Representatives is 81 years old, her deputy is 82 (!), and the party whip is 81. The majority leader of the Senate, sprightly by comparison, is 70 years old. The culture war is at least 53 years old. Critical Race Theory traces its roots to the 1970s. The hysteria and conspiracies that accompany disease are as old as pandemics themselves. We are in a race between incompetent or irrational leadership and social peace. The inept and crazed are winning.
It needn’t be so. The public responds to cues. The people rally behind common-sense measures confidently stated. They’ve done so before. They will do so again. To break the leadership deficit doom loop, American leaders must self-confidently make the case for union, for moderation, for manners, for peace. And they ought to do it with a self-deprecating sense of humor. Because right now we all could use a laugh—not at someone else’s expense, but our own.
New York Congresswoman Alexandria Ocasio-Cortez says while she is not seriously considering challenging Senate Majority Leader Chuck Schumer in next year’s Democratic Party, she also has not yet ruled it out, the New York Post reported Monday.
A race between the two would set up a battle that could affect the Democrat’s bid for outright control of the U.S. Senate. Schumer is currently the majority leader, but only because Vice President Kamala Harris is empowered, as president of the Senate, to cast a vote to break any ties that may occur in the chamber which, since January of this year has been evenly divided, with 50 Republicans and 50 Democrats.
As a loud and proud progressive, AOC has worked tirelessly to drag her party to the left, creating conflicts with the more moderate members of her party who represent suburban districts held by the GOP before the 2018 election and whose interests Schumer safeguard from the other side of the U.S.
The 2020 congressional elections will be held in new districts drawn to reflect the population changes recorded in the 2020 national census. The final numbers are scheduled to be released later in August but, based on what is already known about the population shifts between the states, New York will lose one congressional seat. Mapmakers could, redistricting experts say, easily fold AOC’s current seat representing areas in the Bronx and Queens counties into one occupied by another Democrat, creating the need for a party primary that she could lose. Her efforts to keep the talk of a potential primary against Schumer alive may be a bluff designed to get the senator’s allies in Albany to make sure she gets a seat she likes and keeps.
AOC attempts to tamp down those rumors down by consistently portraying herself as a committed progressive who doesn’t think about electoral politics. “I know it drives everybody nuts. But the way that I really feel about this, and the way that I really approach my politics and my political career is that I do not look at things and I do not set my course positionally,” she said in an interview CNN aired Monday. “And I know there’s a lot of people who do not believe that. But I really — I can’t operate the way that I operate and do the things that I do in politics while trying to be aspiring to other things or calculating to other things.”
Should AOC decide to enter the Senate primary, it won’t quite be the David v Goliath battle some are suggesting it might be. Ocasio-Cortez is far stronger than she makes out, with a national fundraising network of her own that, while may not match Schumer’s would certainly allow her to be competitive. The contrast between the two would be noteworthy as it would pit the far left from the Reagan-Bush era – as represented by the Senate majority Leader – against the new Democrats who are driving the party’s agenda.
Should she win, it would have profound national implications by creating an opportunity for New York Republicans, working in concert with disaffected Democrats and traditional independents put off by AOC’s radicalism, to possibly win the seat in November – threatening national Democratic plans to win back control of the Senate. There’s plenty there to work with, especially AOC’s controversial views on foreign policy which, influenced as they are by Rep. Ilan Omar of Minnesota and Michigan Rep. Rashida Tliab, matter a great deal to voters in the area in and around New York City.
AOC has an opening only because Schumer – still learning on the job how to be majority leader – has had little success so far moving the progressive agenda through the Senate. Prominent progressives are growing grumpy that the changes they had been led to expect are coming at such a slow pace, if at all – and blame it on Schumer’s inability to keep Sen. Joe Manchin of West Virginia and Arizona’s Krysten Sinema from breaking ranks in much the same way the GOP’s ability to achieve its policy goals was constantly frustrated by the late John McCain’s independent streak.
Still, AOC has done the unexpected before, coming out of nowhere to defeat 10-term Democrat and potential House Speaker Joe Crowley in a 2018 primary in New York’s 14th congressional district. This is probably something Schumer and his political team are thinking about a lot, adding to the pressure he’s feeling from the White House, Speaker Nancy Pelosi, and the sizeable progressive caucus in both congressional chambers to get their agenda through the Senate. Until she makes up her mind, he’s in for at least a few sleepless nights.
Ever since Ronald Reagan, presidents speaking to joint sessions of Congress have used the presence of guests sitting with the first lady to personalize the impact of the policy proposals being made.
Joe Biden is no exception. In his speech, Wednesday, given near the end of his administration’s first 100 days in place of a State of the Union address, First Lady Dr. Jill Biden will act as hostess to a handful of people who, the White House said “personify some of the issues or policies that will be addressed” in the president’s remarks.
Due to safety concerns regarding COVID-19, this year’s guests will attend the speech virtually while watching remotely, the administration said, following a virtual reception held that afternoon by Dr. Biden and live-streamed on the White House website.
Those attending include, as described by the White House in a news release:
–Javier Quiroz Castro, “Dreamer, DACA Recipient & Nurse”
According to a biographical sketch provided by the White House, Quiroz’s parents brought him to the United States from Mexico when he was three years old. He grew up in Nashville, attending Lipscomb University from which he graduated in May 2013 with a Bachelor’s in Science of Nursing degree. Quiroz received the Spirit of Nursing Award, given yearly to a single nursing student who best delivered quality care. In 2012, using the protection of the Barack Obama-initiated Deferred Action for Childhood Arrivals program, he became a registered nurse and has been on the frontlines in the fight against COVID.
–Maria-Isabel Ballivian, “Executive Director, Annandale Christian Community For Action Child Development Center
Ballivian’s biographical summary describes her as “an innovative educator, senior administrator, trainer, and advocate” who has been working to improve young children’s quality of care and education. The program she runs is an NAEYC-accredited program serving more than 200 at-risk children in Fairfax County, Virginia.
–Tatiana Washington, “Gun Violence Prevention Advocate and Organizer”
According to the White House, Washington became involved with gun violence prevention work after her aunt was killed in a murder-suicide in March 2017. She is a Policy Associate at March for Our Lives and Executive Director of 50 Miles More, a youth-led organization focused on gun violence prevention. She is also involved in the Wisconsin Black Lives Matter Movement.
–Stella Keating (she/her), “First Transgender Teen to Testify Before U.S. Senate”
Keating’s biographical outline explains she’s been politically active since age nine when she testified before her school board advocating for more innovative programs in her elementary school. At age 16, the Tacoma, Washington high school sophomore became the first transgender teenager to testify before the U.S. Senate during the Senate Judiciary Committee’s hearing on the Equality Act in March 2021.
–Theron Rutyna, “IT Director for the Red Cliff Band of Lake Superior Chippewa”
The White House described Rutyna as a leader in the effort to get broadband to tribal lands in Wisconsin. A member of Democratic Governor Tony Evers’ Broadband Task Force, he has been working with the state’s tribal communities to secure funding to bring broadband access to the mostly rural communities they occupy.
The issues the president has chosen to highlight with these guests, especially, the conversion of illegal immigrants to legal ones, transgenderism, and stricter gun control measures are hardly the moderate, bread and butter kinds of issues one might expect a self-proclaimed moderate to address his first time out of the gate. Rather than unite the country, as he tried to do in his inaugural, Biden is attempting, it seems to make a moral crusade out of some of the most divisive issues the country faces. Instead of bringing the country together, he’s splitting it further apart – which may explain why his approval rating at this point is the lowest for any elected president at the same time in their administration except for his immediate predecessors.
In his inaugural address, President Joe Biden used the word “unity” 11 times to highlight his commitment to bringing the American people together. According to one new poll, it didn’t have much of an effect. His call for a new togetherness to fight what he called “common foes” including resentment, disease, hopelessness, anger, and lawlessness appears to have fallen on deaf ears.
Whatever Biden may have said, most voters, a Rasmussen Reports telephone and online survey of 1,000 likely U.S. voters “think the country has become more divided since Election Day.”
According to the poll, fewer than 1 out of every 5 are “very confident” Mr. Biden will be able to bring Americans together. A majority of those answering the survey – 56 percent – said divisions have increased since the November 2020 election while just 16 percent said they thought the country was “more united.”
Personally, Mr. Biden is doing better than his calls for national healing. His job approval, based on the averaging of six different national polls, stood at 56 percent – not exactly at traditional “Honeymoon” levels but higher than his immediate predecessor was ever able to achieve.
One way in which Mr. Biden himself may have exacerbated existing divisions has been through his aggressive use of executive orders to repeal or make changes to policies enacted during the presidency of Donald J. Trump.
While most of his predecessors – Republicans and Democrats – used this power sparingly during their initial days in office, Mr. Biden has been on something of a tear, issuing nearly two score and counting in his first weeks on the job. One of them, which rescinds the permitting for the Keystone XL pipeline at an estimated cost of more than 10,000 union jobs, has further inflamed the blue vs. green split in the Democratic Party between industrial workers and environmental activists.
The data indicates Mr. Biden has a tough needle to thread moving forward. The coalition that elected him is held together by very thin wire despite his having won a record-shattering 80 million-plus votes in the last election. Without Mr. Trump to keep progressives and Democrats united against a common enemy, the new president’s need to satisfy the demands of the people who put him in office will repeatedly come into conflict over the remainder of his term.
The Rasmussen Reports survey was conducted after Biden’s inauguration on January 25-26, 2021. The data has a reported sampling error of +/- 3 percentage points at a 95 percent confidence level.
By Megan McArdle • The Washington Post
Remember when companies tried to stay out of politics? I’d imagine Delta Air Lines is recalling those days very fondly. The airline bowed to pressure from liberal activists to stop offering a group discount to the National Rifle Association’s annual convention. Now it’s facing a backlash from Georgia Republicans. Given that Delta’s headquarters and biggest hub are in Atlanta, that’s a big problem.
Delta is wanly protesting that it wasn’t trying to make a political statement but to keep out of politics altogether. But it ended the discount in response to a political pressure campaign. And the company made a point of announcing its decision on Twitter, rather than quietly informing the NRA. If anyone at Delta thought that this wouldn’t be taken as a swipe at the NRA, that person really needs to make some time to meet a few human beings while visiting our planet.
Indeed, that was the point. NRA finances aren’t going to be devastated because members no longer get a small discount to attend its convention. Nor will NRA members stop Continue reading
Right after the Supreme Court’s decision to lift limits on campaign contributions, Democrats and their left-wing supporters assaulted the decision as a boon to Republicans, “the party of the rich.”
This of course is part of a far-wider narrative — slavishly repeated by largely unquestioning liberal media — that the GOP outspends Democrats on campaigns thanks to big-buck donors like the billionaire Koch brothers.
But, as it turns out, that’s a lie — as big a lie, in fact, as “you can keep your insurance,” “you can keep your doctor” and “ObamaCare will bend the cost curve down.”
By almost every measure, in fact, it’s the Democrats, not the Republicans, who are the party of the rich. Continue reading
With Lady Margaret Thatcher’s recent passing, tributes and praise for her leadership are flowing freely from former allies and adversaries alike. This is entirely fitting as she was not only the first and only female Prime Minister of the U.K., but she reclaimed a declining economy and helped defeat communism. Lady Thatcher was an effective leader, a principled and skilled politician, and she strengthened the special relationship between Great Britain and the United States. Lady Thatcher was one of the world’s most influential and greatest post-World War II leaders.
A resolution honoring Lady Thatcher has been passed in the U.S. House of Representatives. A resolution was also supposed to pass in the Senate earlier this week. However, well placed sources on Capitol Hill report that Senate Democrats have placed a hold on the resolution honoring Lady Thatcher, according to Katherine Rosario at HeritageAction.com. Continue reading
Part I, Recriminations or Riots?
by Scott L. Vanatter
What if Obama loses in November? Let’s review three areas of inquiry.
1. Will there be racial recriminations, even riots? (See below.)
2. What will Obama do after losing?
3. Will he run for president again? If so, when?
If Obama loses, will there be racial recriminations?
On election night someone somewhere in the liberal media will posit that the GOP ran a racist campaign. To them, in retrospect and by definition, the country is still obviously racist. Else how could Obama have lost? This line-of-attack will carry over as a line of attack against the new GOP administration.
by Victor Davis Hanson
The Obama narrative is that he inherited the worst mess in memory and has been stymied ever since by a partisan Congress — while everything from new ATM technology to the Japanese tsunami conspired against him. But how true are those claims?
Barack Obama entered office with an approval rating of over 70 percent. John McCain’s campaign had been anemic and almost at times seemed as if it was designed to lose nobly to the nation’s first African-American presidential nominee. Continue reading