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The Calm Between the Storms is the Time to Prepare
TL;DR: This might be a moment that you feel good and satisfied in, but it is at precisely this moment that you should start making calls and knocking on doors for Congressmen. Nemesis hangs over us, and and it is likely that there will not be a better opportunity to make a difference. If you don’t already have a good candidate in mind, I’d recommend signing up to make calls for Peter Roskam (R-IL 6th).
Kavanaugh made it. It’s hard to predict precisely what will come from having a Court with five conservative justices, but it seems safe to say “a lot”.
Sometimes these victories are unadulterated. The winner entrenches the transformative and controversial success, and it becomes a part of the American way of life forever.* Sometimes, these victories are not so helpful. The winner sees their gains reversed, and suffers other difficulties alongside it.** Sometimes, the cost to the temporarily winning party is catastrophic. Most of the time, the difference comes down to the President maintaining the policy to the end of his administration and having his successor accept it.
The moment of grasping victory is not the moment at which victory is complete. If we win, take, and maintain a conservative majority on the Court, we will have done a very big thing. If we lose the next election, Thomas dies shortly afterwards, and the conservative majority is very temporary, we will not have accomplished so much, but it’s certainly better to have four justices who value the Constitution as written than to have three.
If the left’s sense of the delegitimization of the Court combines with big Democratic victories this year and in 2020 (or with a substantial Congressional majority and the Presidency in 2024 if Trump wins re-election) and Thomas appears to be in fine health, we have a much bigger problem. A united Democratic government, particularly with a supermajority, that sees its advances stymied by a Court they perceive as illegitimate is likely to consider court packing. If Trump wins re-election, replacing Thomas and Ginsburg becomes highly likely, and with it the lack of a plausible traditional path to the left’s retaking of the Court. Consider the outrage over Citizens United, which confirmed that the First Amendment did not allow the government to ban political speech, but which could be fixed by a single appointment. We are looking at a future with many such cases, and no form of redress.
FDR failed because packing is obviously terrible. It is still more clearly awful today; when FDR was considering it, the court swinging left and right wasn’t really a phenomenon familiar to American history. Today, a President Warren filling the Court with a half dozen Ocasio-Cortezes would know that the next Republican unified government would fill the Court with a dozen Cruzes. Without being able to remove justices, but regularly being able to add to them, we’d see the Court expanding geometrically. It’d take longer than one might think to become literally “The People’s Court”, in which every American was a Court justice (or, hey, maybe every human), but it would not take long for society and the economy to be wrecked.
The combination of obvious harm to the country and obvious partisanship means that it would be hard to make pursuit of packing a long term and openly held goal (and the degree to which it is a base pleasing thing means that it would have to be open). Swing state legislators would substantially endanger their careers with it. Rather, this is the sort of thing that would need to be passed in a moment of giddy enthusiasm or hot fury. When Democrats win in 2020 or 2024, as it seems likely they will eventually do, they will likely be unhinged with fury at Trump and particularly at the Court. If they are and have a substantial majority, they will likely put an end to to the Republic in recognizable form, as happened in pre-WWI Britain.
Unlike broadening access healthcare, though, Court packing is not a decades long broadly held Democratic aim. If there is merely a small majority, the dumbest of ideas are likely to find sufficient dissent that they cannot be passed. And if a plan like this fails, it will likely fail for the foreseeable future. While the Senate is relatively likely to stay Republican in 2018, 2020 has a much harder map (and 2022 harder still). If we are to make a stand in Congress, it’s plausible that it will be in the House (it’s unlikely that a Senate keen to pack courts would retain the filibuster.) The Republic has had terrifying patches of enthusiasm before. If we can avoid an unchecked demagogic stampede through our institutions, the history of these things say that we should reach a calmer equilibrium with a more conservative status quo; this is doable, but we do have to do it.
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Happily, in House races individual donors and volunteers can make a substantial difference. Turnout is low, which means that get out the vote calls from human beings are more likely to change results. There’s not a lot of volunteering going on, so you’re less likely to be pushing on a string and more likely to be a voter’s decisive contact. The margins can be super low; if Martha McSally wins her Arizona Senate race this year, for instance, it will likely be because when she was running for the House in 2014 a couple of dedicated volunteers put her 121 votes ahead of her opponent.
Specifically, if you are not already invested in a particular race, I believe that it would make sense to research Peter Roskam a little, then sign up to make calls for him. Roskam is a great candidate; Senator Tammy Duckworth had her Congressional career delayed by six years by Roskam’s first Congressional victory. Unfortunately, (or fortunately, depending on how you look at it), Roskam is a lot more conservative than his district and his highly educated Chicago electorate is just the sort of demographic that struggles to vote Republican right now. They’re also the sort of demographic that would most appreciate a political call coming from a politically engaged, articulate, conservative, such as Ricochet tends to attract. As the chairman of the Tax Policy Subcommittee on Ways and Means, he’s under particular fire this year, but if he weathers this moment, he is likely to keep the seat red for some time to come.
As well as being a warm body for these purposes (which, as above, really is important), Roskam is a hard working, policy oriented, passionate advocate for America. His earnest, principled, solution seeking, approach to politics is part of why he’s been able to win in landslide after landslide. Check him out on issues that are important to you (not you, Fred; you should just accept that this post is for other people). You might not find yourself in agreement with him, but you will find that if you are not, he disagrees with you thoughtfully and respectfully. When you read about him in the news, he will be a figure that you feel proud about helping.
You can make calls from home (or wherever else you happen to be with your cellphone; just go to the website below). If you happen to live near Illinois’ 6th, knocking on doors can be even more helpful. If you haven’t done it before, try it once and see how you feel about it. If you have tried before and haven’t enjoyed it, the technology is always getting better, and you may have a superior experience this time. (Certainly people won’t be as irritated by being flooded with phone calls as they are during Presidential years.) If you sign up, see if you can make a note about Ricochet and maybe a grateful Congressman will come on a podcast or two to say “thank you” or make a post.
https://www.roskamforcongress.com
*Into this category, I would put, for example: Jefferson’s Declaration; the Northwest Ordinance; the Federalist’s Constitution; Washington’s reduction of the senate’s role to consenting to nominees and other Constitution defining decisions; The Louisiana Purchase; Marshall’s suite of big hits; the Monroe Doctrine; Indian Removal; Van Buren’s Democratic Party; Polk’s Texan admission by Congressional Executive Agreement; Abolition; Arthur’s Pendleton Act; Cleveland’s defense against bimetallism and creation of the ICC; TR’s FDA; Wilson’s Federal Reserve; Coolidge’s Kellogg-Briand Pact; FDR’s Second New Deal; Truman’s GATT (proto-WTO) and NATO; Ike’s Interstates, Mapp, and Miranda; LBJ’s Civil Rights Act and Medicare; Nixon’s opening to China; Reagan’s employer sanctions for illegal immigration and the bulk of his tax cuts; Thomas’s Citizens United, Heller, etc.; Clinton’s Border Wall; Bush’s TSA and Iraqi Surge; and Obama’s pre-existing condition coverage. Obviously, any of the more recent things might be undone in the future; it’s tough to predict what will endure.
** Here I’d include, for example: Adam’s Alien And Sedition Acts; JQA’s Tariff of Abominations; Tyler’s Black Tariff; Buchanan’s excessive enforcement of slave owner’s rights; Johnson’s veto of the 1865 Civil Rights Act; Wilson’s New Freedom; the Mellon Tax Cuts and Hoover’s Smoot Hawley tariffs; FDR’s NIRA and Court Packing; LBJ’s Model Cities Program; Reagan’s initial SSDI crackdown; and Obama’s Individual Mandate.
Published in Politics
OK, I will read the whole thing but had to stop here for a favorite quote from one of the five :
<< FACE-PALM >>
Do you have a conservative justice from the last century who does not believe that context can compel a different reading to the isolated plain meaning of a particular statutory phrase? $2 says that I can find an opinion joined by any justice you name. I’m not super keen to get into an Obamacare fight, but it’s definitely not the case that Roberts was simply foolish or ignorant even if you disagree with his decision. Also, because I’m bad at this not taking the bait stuff, Roberts’ decision is one of the strongest Commerce Clause and one of the strongest Tenth Amendment cases on the books. It achieved a bunch of long sought conservative principle aims with very little in the way of long term conservative principle problems. It also achieved important conservative policy outcomes, particularly in allowing states to opt out.
It didn’t give us all of the policy outcomes we wanted, but it’s probably a good idea to have the Court not implement all the policy outcomes we want. We have stronger gun rights, speech rights, property rights etc. than ever before and those are respected and implemented in part because the Court is seen as being at least partly above partisan rancor.
Just as an indication of the delegitimization of the Court, Dan Drezner and James Fallows, both of whom have keen interests in mid century history and both of whom have in times past been keen on centrism, tweeted out this:
https://twitter.com/jamesfallows/status/1048974631217053696?s=21
To summarize the story: McConnell is on CBS today and tells John Dickerson that the Senate hasn’t confirmed a Senate nominee from the other party in an election year since the 19th century. Dickerson replies by saying that McConnell is wrong on the history because Brennan was put on the Court just before the 1956 election. Fallows tweets this out with a celebration of Dickerson knowing the history. Drezner retweets.
But it’s obviously false; Brennan was a recess appointment in 1956 and was confirmed by the Senate in 1957, which wasn’t an election year. It would only seem like McConnell was being shown to be a dishonest idiot if you were both ignorant and unwilling to check, taking the word of his critics that he was being dumb.
We can sneer all we want at academia (although Drezner, in particular, has had a lot of conservative admirers), but it’s those sorts of people who generally act as a mild drag on Democratic excesses. It’s moderates of their sort, for instance, who helped to keep the public option out of Obamacare. The more they’re persuaded to parrot these sorts of claims, the less safe our Republic is. We can narrow the margin and make it harder for radicals to trash our constitution, but this sort of thing is likely to remain a toxin in our body politic even after things calm somewhat.
Wow. All bow down to James of England! (I have been pushing back against know-nothing charges that Roberts is a “traitor” and “just another Souter” for years, in this and every other forum where it comes up.)
James of England could have added that the Roberts move to choose a reading of a statute that saves its constitutionality is the height of judicial conservatism.
Given the massive changes ObamaCare made to the relationship of people to the state, I’m not sure what use it was to establish these wonderful conservative principles. Maybe our legal system is some esoteric video game that people use to escape from reality?
I appreciate the praise, but I want to be clear that there’s a lot of legitimate disagreement about King and other cases. The liberal justices have five bites at the apple on any individual case and there will be both 5-4 cases that conservatives howl about and lopsided cases that upset people. As with electing friendlies in legislative politics, you get a better hit ratio but you’ll never find perfection. Just like there were cases that worked out well in the 1980s. If we lose the majority soon, there’ll still be plenty of cases that work out well for us.
We can’t get to utopia by voting or volunteering, nor through any other human means. Put not your trust in princes and all that.
That said, you can get to dystopia, and through a diverse array of paths. Put a pin in a map and you’ll find an example.
As I’m sure you know, most foreigners have Obamacare-like or worse systems. The thing is; that’s not the only way in which they suck. The point of having a strong, originalist, Constitution is not that it gives us the policy outcome we want every time. It’s that it gives us a positive policy outcome more of the time. Indeed, accepting that we shouldn’t force every issue until we hit perfection is one of the central things that distinguishes conservatives from leftists.
Imagine we conservatives elected a President who made, at some point, a bad decision on an important issue. Would you have a lot of respect for people who said that there was no value to his conservatism? And I should pause a moment here to dwell on the fact that it really is just the one decision that upsets people. How many politicians do you know that you’re invested in but you can’t name a second complaint about? (Maybe you can with Roberts, but many can’t).
We’ve got it pretty good. We might have it worse in the medium term future (Thomas isn’t going to live forever, and death can come pretty randomly even to people in late middle age). But there’s also a moderate chance of truly catastrophic outcomes.
I’m glad to hear your scorn for video games to escape reality. In reality, do you have thoughts about how we can protect our country? Do you think that there’s a race where you could make more of a difference than Roskam’s? Do you think that I’m wrong to focus on the House?
There is no more fundamental way than health care to control the relationship of the people to the state. It’s not a policy outcome. It’s the fundamental basis for policy.
I mean, maybe. Education’s a pretty big deal, too. There’s a lot of people who think that property rights, particularly to real estate, are what really matter for freedom. War, in its larger forms, can impact people significantly.
But, yeah, healthcare is important. I’m not sure that it’s the fundamental basis for policy, but that may be because I’m misunderstanding the concept (I’m thinking something similar to Kelsen’s grundnorm). Do you have any links that would help me understand?
Do you want judges who think that the importance of healthcare should be the basis on which they decide if a particular statutory clause is Constitutional? Do you have a Constitutional clause which you feel would provide a good figleaf for that position?
I feel like if you do want judges to decide cases on the basis of their views about healthcare rather than on the basis of general principles of legal interpretation, we may have a disagreement that would be difficult to get down to the root of.
I’d like Roberts to rule on the constitutionality like other justices did, rather than rewrite the legislation on the basis of social pressure from the administrative class.
Blogger Zman says you’re optimistic. He quotes Christopher Caldwell at the Weekly Standard (italics:)
James – welcome back! I have missed your posting for a while now and was wondering what had happened so glad to see your input and thoughts again. Other than that, I need to read the post and comments before putting my 2 cents in.
It’s certainly true that we’re in a heated moment. It might not be as heated as the 1960s or 1970s, nor nearly as heated as the 1910s, nor as the late 1790s, or the late 1820s-early 1870s, but it’s pretty heated. Obama’s “stray voltage” efforts successfully diminished support for moderate Republicans by promoting the fringe. Putin did the same at the same time (although Putin, obviously, promoted both sides’ lunatics by policy). Trump has moments of polarizing impact.
There’s a long history, though, of Republicans taking heated atmospheres and cooling them. The Gettysburg Address was a pretty good moment in that, along with Arthur’s Pendleton Act ending the spoils system, and Harding’s Return to Normalcy ending the lynching and imprisoning of political opponents (and people who looked like they might be political opponents). Reagan and Bush ending the Cold War helped a lot.
In general, these conflicts thrive on angry waves being responded to by angry waves. We need to brace for the tsunami that will hit soon (maybe not 2020, but almost certainly by 2024). If we’re prepared, we may be able to wrestle the radicalism to the ground. It’s helpful that it’s very easy for our side to repudiate a lot of Trumpian symbolism. Some of what their side wants has been made conservative by the classic parents’ trick of swapping positions such that they shout X, you shout Y, repeat a few times, then you shout X and they shout Y. Now the Democratic base wants trade.
If we get a massive wave that succeeds, particularly in Court packing, it’s not clear that there’s a path out. If we get a wave that mostly breaks before it hits anything too important, history suggests that we have a good route to civility returning.
The belief that people who agree with us are doing so from reason and principle, while people who disagree are driven by cowardice and social pressure is one of the chief problems with getting to a new stable status quo. This is a particularly good example because The Reticulator earlier suggested his motives were not formed by a love of process but from a belief about the fundamental importance of healthcare, in this instance about the funding of state level exchanges for states that didn’t adopt them (a choice they had because Roberts had struck down portions of Obamacare three years earlier).
Before we even get to that point, there’s going to be an ongoing attack on Kavanagh and any SCOTUS decision that impedes the Left’s agenda.
Your mention of Lincoln, Arthur and Harding seems more apropos than Reagan and Bush – and they were before the income tax, before the social safety net, before social entitlements, and before Teddy Kennedy’s mass immigration. And before the educational system stopped preaching civic nationalism and started preaching victim entitlement and the whole SJW agenda.
Yes, there were deep flaws. I’m not dismissing the polarization inherent in “no Irish need apply,” ethnic spoils systems in big city political machines – which did provide a less violent way to work out an accommodation – or Jim Crow. But civic nationalism was seen as the cure for that; Martin Luther King embraced it and told the rest of the country to put up or shut up, and did it in a way that had mass appeal.
Civic nationalism is under attack from the globalists, the Left, and, increasingly, whites who correctly see themselves as under racist attack from globalists and the Left. How do you see that circle being squared?
EJ Dionne published this in the Post at about the same time as I published to the member feed.
The biggest success of conservatives in America has been to have a Constitution that has been uniquely unchanged and respected from its founding. As is often the case, the big conservative success is the same as the big American success. Upending the constitutional order is the quintessential leftist act. Defending it is the founding aim of conservatism.
This really could be a turning point in our nation’s history and there is a small chance that you could play a decisive role in it by giving a little of your time.
I guess I think of those attacks as being part of the wave. Although I regret the ambiguity, I wasn’t meaning the term in a purely electoral sense.
We have enormously less violent politics today than we did under Harding, let alone Lincoln. There’s been no labor dispute in my life with a triple figure violent death toll and the Air Force being called in to make strikes.
Harding was partly opposing an excessive civic nationalism. There’s still a lot of power in earnest and quiet patriotism. Scott Walker’s transformation of Wisconsin from a blue to a purple state was based heavily in that.
It’s certainly true that there’s various attacks on civil society and fundamental American ideals, but that was also true for other periods of high tension. They’ve often included violent assaults on both dominant white groups and, more often, marginalized groups. Today physical attacks between racial groups are rarer than they have ever been. No group is enslaving or preventing others from voting, which was not the case under Arthur. Domestic terrorism levels are very low, unlike the situation before any of the major moments of healing.
Eventually, it’s likely that Putin’s funding for making discontented groups on the left and right feel more uncomfortable will diminish; if sanctions continue and Trump maintains a moderate backbone in Syria, Ukraine, and Georgia, they will likely diminish before 2024.
In general, groups that develop utopian understandings of how life will be with a unified friendly government tend to eventually loose enthusiasm. If they see saw back and forward, they don’t have long enough to do that, but a moment’s rhetorical quiet lets people grow up a little.