Will We See A Dummymander?

I have a theory. Bear with me…

Trump is clearly concerned that Republicans will lose the House–and even, possibly, the Senate–in the 2026 midterm election. Because he’s Trump–aka stupid– and because he always opts to cheat rather than compete, he is pressuring Red state Republicans to engage in mid-cycle gerrymanders that he believes will add “safe” districts in those states and protect Congress from a Blue midterm victory.

My theory is that–rather than a traditional gerrymander–we may see what has been dubbed a “dummymander.”

Let’s look first at Texas, where state officials who bow to every Trumpian command have already completed their obedient mid-cycle redistricting. Several observers have pointed out that those revisions incorporate assumptions based upon data from the 2024 election–an election in which a larger number of  Latino voters than expected supported Trump. Current polling suggests that those voters have changed their minds–and that far from building on that incursion, Trump is now deeply underwater with Latinos in Texas. Republicans in that state are now worried that the new districts that mapmakers drew to be “safe”–based in large part upon data reflecting that unusual (and fleeting) Latino vote– are actually likely to make several existing districts competitive. 

Here in Indiana, the reluctance of several Republican lawmakers to engage in a mid-cycle gerrymander has been attributed to integrity (stop laughing!)– to the acknowledgement of those lawmakers that doing Trump’s bidding would constitute a wrongful and arguably unlawful “rigging” of the electoral system. Perhaps some of the members of Indiana’s pathetic super-majority do actually have consciences, but I think their reluctance is more likely based upon a recognition that Indiana’s extreme gerrymandering has already reached its demographic limit.

What do I mean by that?

After the last legitimate redistricting, I had coffee with a political science colleague who had examined the data the Republicans had used to draw their district lines. He noted that they hadn’t added any new safe districts, and attributed that decision to the fact that the populations of rural Indiana–the source of GOP dominance–have been thinning out. As a result, there simply weren’t enough reliable Republican voters to support creation of an extra “safe” district–doing so would endanger incumbents in the current districts.

The emptying out of rural Indiana has continued.

Furthermore, there’s another defect in the data our Republican overlords use to draw those district lines. As I’ve frequently noted in these posts, gerrymandering is first and foremost a voter suppression tool. The current, presumably “safe” districts are home to a number of Democrats, Independents and unhappy Republicans who simply haven’t been voting–they’ve been convinced that their votes wouldn’t make a difference, a conclusion supported by the lack of a Democratic candidate in many of those districts. (Disengagement from the democratic process isn’t unique to Indiana–the number of Americans who failed to vote in the last Presidential election was larger than the numbers who voted for either candidate–a shameful statistic.) A new gerrymander would begin with the use of data incorporating the absence of those disaffected voters from the polls.

But as investment advisers like to remind us, past performance is no guarantee of future returns.

In this case, thanks to the Trump administration’s ongoing war against democracy and the Constitution, millions of Americans have become newly engaged. Indeed, evidence of that sizable public blowback is what has prompted Trump’s gerrymander push.  The millions of protesters insisting that America has “No Kings”–see you there tomorrow!– and the millions of Americans who participate in the growing number of weekly spontaneous protests aren’t likely to stay home next November. Assuming Democrats and Indiana’s newly active Independents give them a choice, a lot of those so-called “safe” districts won’t be safe.

My theory is that even the dimmer members of Indiana’s GOP super-majority have figured this out, and that their reluctance to do a mid-cycle redistricting isn’t just based upon the likely negative public reaction to such in-your-face cheating, although that does worry some of them.

It’s based upon a recognition that–as they say in those rural precincts–pigs get fed, but hogs get slaughtered.

 My theory (and yes, my hope) is that a mid-cycle redistricting, if it occurs, will turn out to be a dummymander.

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An Absolutely On-Target Essay

I frequently disagree with the conservative New York Times opinion writer Bret Stephens, but a while back, he honed in on an under-appreciated aspect of America’s current dysfunctions--our lack of authentic argumentation.

Before you decide that both Stephens and I are looney–after all, sometimes it seems as if all we Americans do is fight one another–let me emphasize that this is another of my frequent diatribes about the importance of using terminology accurately. Because whatever we want to label the interminable angry and hostile encounters between MAGA ideologues and the multiple factions of citizens appalled by and opposed to them, I don’t think you can properly call them arguments.

Stephens attributes his own appreciation of proper argumentation to his time at the University of Chicago, an institution that requires its undergraduates to read the books that formed the Western tradition, to familiarize themselves with a philosophy and literature that was notable for argumentation meant to persuade, not put down.

Where did the anti-Federalists differ from the Federalists, or Locke from Hobbes, or Rousseau from them both? The curriculum made us appreciate that the best way to contend with an argument was to engage with it rather than denounce it, and that the prerequisite to engagement was close and sympathetic reading. Reading Marx didn’t turn me into a Marxist. But it did give me an appreciation of the power of his prose.

I don’t think Stephens is wrong or exaggerating when he focuses on the importance of genuine argumentation to democracy.

What is the soul of the Western tradition? Argument. Socrates goes around Athens investigating the claims of the supposedly wise and finds that the people who claim to know things don’t. The Lord threatens to destroy Sodom for its alleged wickedness, but Abraham reproaches and bargains with Him — that for the sake of 10 righteous people He must not destroy the city.

The virtue of Chicago’s curriculum is that it introduces students to a “coherent philosophical tradition based in reasoned argument and critical engagement that explained not only how we had arrived at our governing principles but also gave us the tools to debate, preserve or change them.” (In other words, students who were required to immerse themselves in these works received an actual education, rather than a job training credential; a distinction entirely lost on Indiana’s pathetic legislature. But I digress…)

It’s hard to argue with Stephens’ observation that the Internet and the digital transformation of the way we receive information has facilitated our ability to inhabit carefully curated bubbles of ideology and “facts” confirming our biases. But he argues that the deleterious effects might have been mitigated “if we hadn’t first given up on the idea of a culture of argument rooted in a common set of ideas.”

Which brings me to Charlie Kirk.

Kirk, to my way of thinking, was not a real conservative, at least in the American sense. The point of our conservatism is to conserve a liberal political order — open, tolerant, limited and law-abiding. It’s not about creating a God-drenched regime centered on a cult of personality leader waging zero-sum political battles against other Americans viewed as immoral enemies…

It’s too bad that Kirk, raised in a Chicago suburb, didn’t attend the University of Chicago. It wouldn’t have hurt getting thrashed in a political debate by smarter peers. Or learning to appreciate the power and moral weight of views he didn’t share. Or recognizing that the true Western tradition lies more in its skepticism than in its certitude.

But the larger tragedy by far is that it’s America itself that’s losing sight of all that. In the vacuum that follows, the gunshots ring out.

That last sentence sums up the central point of the essay–at least as I read it. A citizenry that has lost the ability to engage in genuine arguments–and the operative word there is “engage”–expresses its disputes and disagreements with insults and violence.

The utter inability to engage in actual debate may be the most prominent characteristic of the incompetent clowns who dominate the Trump administration, and it may explain why the administration eschews civility and relies on invective and militarized violence rather than efforts at persuasion.

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An Insider Analysis

America’s “chattering classes”–to use Molly Ivins’ apt phrase for the pundits who pontificate on our social and governmental aches and pains–come in two broad categories: inside and outside.  Commentary by members of both groups ranges from puerile to perceptive, but I think there is a special value in the observations and regrets of former Republicans who belong to the “old too soon, wise too late” category.

Stuart Stevens is one of the “Never Trump” Republicans who have reacted to the current assault on constitutional democracy by reassessing their own complicity with the darker elements of the party’s history. Stevens published a recent essay in Lincoln Square that confronted today’s realities with insights derived from his years as a GOP strategist, and several of those insights speak to many of us who once believed the party’s rhetoric.

Stevens began by posing a question we’ve all asked: How did this happen? How did we get to a place where a major American political party is controlled by one man–a man who doesn’t have to worry about Republicans in Congress exercising their governing prerogatives?

To call it partisanship is to call Ebola an airborne virus like the flu. It’s both true and woefully inadequate. The level of subservience in the Republican Party is unlike anything we’ve known in American politics. Running for office is often humiliating, inevitably exhausting, rarely enjoyable. You must suffer fools to an enormous degree and do so while feigning interest and appreciation. All of these Republican Senators and Congressmen endured the dehumanizing gauntlet of election only to come to Washington and do what? Whatever it is Donald Trump requires.

Stevens looks back at the devolution of the GOP over the decades, and finds a system that increasingly “rewarded compliance and punished independence. The path to advancement was to go along, to wait your turn.” And he acknowledges the party’s growing reliance on racism.

Since the 1960s, the Republican Party has operated as a homogenous white party, with non-college-educated white voters the dominant subgroup…. To win an election, you had one simple task: appeal to white voters. Consider this under-appreciated fact: Over the last fifty years, no Republican has been elected to the House of Representatives, Senate, or won a governor’s race who did not win the majority of the white vote.

One of Stevens’ most perceptive observations is aimed at the numerous pundits and political operatives who constantly bemoan what they see as the Democratic Party’s lack of messaging savvy. As he notes, it’s much easier to message to a monolithic base than to the wildly diverse voters who range from disaffected Republicans to Democratic socialists.

It’s often said that Republicans are better at messaging, but it’s a false standard. It’s easy to stage a successful concert for an audience that likes the same kind of music. It’s much more difficult to do the same for a crowd that enjoys very different types of music.

That homogeneity has allowed the GOP to create what Stevens calls “a top-down hierarchy.”

Like a corporate headquarters laying out a marketing strategy for regional offices, a political party that needed to appeal to the same demographic for victory gave candidates no reason not to echo its message. You were graded within the party on your ability to articulate the proscribed message and penalized for being “off message.”

That process, Stevens writes, “curates a particular kind of candidate.” Those who advance are those who are willing to follow and conform. Deviation was punished.

And what about the values the GOP extolled? Free trade. The importance of character. Family values. A muscular foreign policy. Personal responsibility.

As Stevens and many others have concluded,  those supposed bedrock values turned out to be nothing more than marketing slogans.

When Donald Trump looked at the Republican Party, he saw through the artifice of values and understood it was a party of followers. The soul of the party was conformity, not values. The “family values” party would embrace a three-time married casino owner who talked in public about dating his daughter if he could give them power. The most “conservative” element of the party that was the fiercest opponent to the Soviet Union and an expansive Russian Federation would become the beating heart of the pro-Putin movement in American politics.

So here we are. The GOP has been bleeding non-racists and non-conformists for at least two decades. It is now–as Stevens notes–a homogeneous White cult. The problem is, in a system that privileges two major parties, the intellectual and moral collapse of one of those parties is a big problem.

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Losing The Rule Of Law

It isn’t just the loss of due process (yesterday’s lament).

The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.

Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.

In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.

The New York Times recently interviewed  50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.

One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”

The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.

The survey found a “collectively grim state of mind.”

All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.

And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.

At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.

Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”

The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.

It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes. 

RIP rule of law…..

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RIP Due Process

During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.

When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either  liberty or property.

The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.

There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.

In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode,  Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”

The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.

It isn’t just Supreme Court rulings diametrically opposed to years of precedent.

The Prospect, among other sources,  has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.

So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.

We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….

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