Advice and Consent and Gerrymandering

Sometimes, it’s illuminating to connect the dots.

Senate Republicans are refusing to hold hearings to consider a nominee to replace Antonin Scalia, and I have been critical of that refusal (by “strict constructionists,” no less) to discharge their constitutional duty. A reader emailed to say the Democrats would probably do the same if the political roles were reversed; I replied that I hoped they would at least be more subtle about it—go ahead and have hearings, and then reject the nominee.

His essential point, of course, was that both parties’ excessive partisanship and the polarization that characterizes today’s politics threatens our ability to govern ourselves, and he’s right.

One of the reasons for that excessive partisanship is gerrymandering. (And yes, I know that Senate seats cannot be gerrymandered. Bear with me here.)

I have posted for years about the anti-democratic effects of gerrymandering. As I have repeatedly noted, gerrymandering contributes to political polarization and gridlock; in safe districts, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged by the Right and Democratic incumbents will be attacked from the Left.

Even where those challenges fail, they leave a powerful incentive for the incumbent to “toe the line”— to placate the most rigid elements of each party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to appeal to the broader constituency, we get nominees who represent the most extreme voters on each side of the philosophical divide.

The consequence of ever-more-precise state-level and Congressional gerrymandering has been a growing philosophical gap between the parties and— especially but not exclusively on the Republican side— an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

In a post to SCOTUSblog considering the current standoff and potential nominees, Tom Goldstein makes two points in passing that illuminate this toxic situation. Noting that the political parties are in “a deadly embrace from which neither will easily budge,” he says

The administration feels a constitutional responsibility to press for the confirmation of a nominee and every political advantage in doing so. Republicans cannot accede to that effort because their base will not permit it.

After suggesting that the GOP will eventually choose to pursue the “slow walk and reject” option, he predicts that Senate Republicans will vote to reject “essentially as a block. Any other course than a decisive vote against the nominee invites a certain primary challenge from conservatives in the next election.” (emphasis mine)

What gerrymandering has done is radicalize the political bases. It is naive to assume that the consequences of that radicalization are confined to carefully-drawn, noncompetitive state legislative districts and House Districts.

Making matters worse, many of the most impassioned members of those radicalized bases—in both parties—have very tenuous understandings of  how American government actually works, let alone the country’s history or constitutional principles. They are ripe for demagoguery and bumper-sticker slogans.

They are the electorate that gerrymandering has helped to create, and they are the electorate to which Senate Republicans are pandering.

Connect the dots.

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Now Let’s Talk About “Originalism”

Yesterday, I considered the political food fight being waged over the nomination of a Justice to replace Scalia. Today, I want to consider Scalia’s much-ballyhoo’d judicial philosophy.

During his long tenure on the Court, there has been a great deal of attention paid to Scalia’s claim that he was a true–if “faint-hearted” (his description)– constitutional “originalist.” It is a claim uncritically accepted by political conservatives, but one that has been thoroughly debunked by both conservative and liberal legal scholars.

In 2012, the widely admired, brilliant, and very conservative Judge Richard Posner— the most cited legal scholar of this generation— deconstructed Scalia’s purported originalism in the New Republic. Posner’s review of a book about judicial philosophy co-authored by Scalia was an “emperor has no clothes” moment, and I urge anyone who values careful analysis to click through and read the whole thing. But I especially want to call attention to the following paragraph:

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”…. Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

That last sentence, explaining that the true meaning of a law is to be determined by “considering the reason and spirit of it” is crucial. It is the root of the only practical approach to original intent. It requires judges to analyze the Constitution and the Bill of Rights in order to understand the values the Founders were attempting to protect, and to apply the law in a way that is faithful to those values–and to do so in situations that are highly unlikely to have been within the contemplation of those who drafted the Constitution.

The question, as I tell my students, is not: what did James Madison think about porn on the internet? Obviously, none of the Founders ever contemplated the internet. But they did contemplate–and quite clearly disapproved of–government efforts to censor expression.

The proper question, then, is: how do we apply the Founders’ judgment about the importance–the inestimable value— of free expression to “facts on the ground” they could never have imagined?

That process–discerning the principles that animated the Bill of Rights and applying those principles in new and unanticipated situations in order to protect the liberties the Founders  wanted to safeguard—is what is meant by a “living” Constitution.

Antonin Scalia was a brilliant man who used his brilliance to dissemble, to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.

Posner is equally brilliant, and equally conservative–but far more intellectually honest.

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An Elastic View of Constitutional Responsibility

Okay–This week, it seems appropriate to talk about the late Justice Scalia, the battle over his replacement, and his much touted (albeit misunderstood and selectively applied) “originalism.”

Today, let’s consider where we are in the process for replacing Scalia.

Republicans in the Senate–notably McConnell and Grassley, who heads up the Judiciary Committee–have said they will refuse to participate in the Constitutionally-described process of “advice and consent.” Their argument, apparently, is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t nominate a successor.

Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President.

As a post from the Brookings Institution put it: the Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

And I thought they claimed to be “strict constructionists”!

The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, and if I had to guess, I would predict that McConnell et al will back away from that refusal once they recognize the extent of the political risk involved. (Of course, I’ve been wrong before when I have predicted rational behaviors from crazed partisans…)

Tomorrow, a decidedly critical consideration of Scalia’s controversial jurisprudential legacy…..

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Privatizing Libraries

What with the wild and weird Presidential campaign, and the focus on the Supreme Court in the wake of Scalia’s death, there’s much discussion about the operation of the federal government. But Americans have really been engaged in a much longer debate–largely uninformed–over the role of government in general.

And that debate has “evolved;” a recent column from the LA Times brought me up short. It began:

The list of responsibilities that a local government must shoulder isn’t an especially long one. Typically it includes keeping the streets paved and the streetlights lit, maintaining adequate police and fire services, inspecting buildings, sometimes providing water. One hallmark of almost every local jurisdiction is the free public library.

So the proposal before the Kern County supervisors to turn over the county library system to a private company operating out of suburban Maryland marks a major step. If you’re looking for a sign that local political leaders are intent on giving up all pretense of working for the public interest, look no further.

As the columnist points out, the proposal to privatize the library system is part and parcel of the long slide in spending on public infrastructure, the result of viewing the public budget as an expense rather than an investment. The Kern County supervisors are choosing between turning the library over to a private, for-profit company, or imposing a sales tax increase of one-eighth of a cent to fund the libraries.

How, one might ask, does a company make a profit operating a library? According to the story, LSSI, the company in question, cuts down the number of employees, “squeezes” those who remain, and replaces existing pensions with cheaper 401K plans. Even then, the proposal defies logic.

Chronic underfunding and repeated budget cuts have allowed the Kern County libraries to deteriorate physically, while the county spends money instead on an 822-bed expansion of its jail. Library employees are among the lowest paid public workers in Kern County, the advocacy group says.

Turning management over to a firm that will add its own profits to all the other expenses incurred by a library system doesn’t seem on the surface to be a path to improved library services. The money will still have to be found to improve and maintain the physical plant, acquire books and magazines, and upgrade the system’s electronic access.

Something more fundamental is lost when a system such as libraries becomes privatized. The sense that government exists in part to provide infrastructure and services that should be immune from the influence of private interests.

Free public libraries create and nurture community. They cannot be replaced by bookstores (as former Mayor Goldsmith once advocated) or other for-profit ventures. Their importance in the age of the internet has actually grown, as they have moderated the digital divide and curated essential access to credible information.

Government isn’t a business. It exists to provide public goods– services that the private sector cannot and will not provide. When we starve and diminish it, we lose that which makes us a community–an “us”–rather than an assortment of winners and losers who simply occupy a common geography.

Privatized libraries are a step too far. Far too far.

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Despicable

If this is true, it is beyond despicable. Per Talking Points Memo:

An Iranian official said “Republican rivals of the current US administration” attempted to stall last month’s Iranian-U.S. prisoner swap until the eve of the U.S. presidential election, Tasnim News Agency reported.

According to the semi-official Iranian news outlet, Ali Shamkhani, the secretary of Iran’s Supreme National Security Council, made the claims during a speech Thursday at a rally in Yazd, Iran.

“In the course of the talks for exchanging prisoners, the Republican rivals of the current US administration who claim to be humanitarians and advocates of human rights sent a message telling us not to release these people [American prisoners] and continue this process [of talks] until the eve of US presidential elections,” Shamkhani said, according to Tasnim.

“We acted upon our independent resolve and moved the process forward,” Shamkhani said.

Representatives of the party that constantly proclaims its Christianity and superior morality, the party whose Presidential contenders are constantly beating their chests and bragging about being strong enough to protect America and its citizens, were evidently willing to forgo honor and patriotism–not to mention basic humanity– in pursuit of partisan electoral advantage.

This claim by the Iranians is believable because it is so consistent with the behavior of Congressional Republicans ever since Barack Obama entered the White House. Absolutely nothing has mattered to the GOP except obstructing and diminishing this President–certainly not the health or safety or best interests of the American public  (as we are seeing in the wake of Scalia’s death, they are even refusing to discharge their constitutional duty to vote on a successor). But even for the sleaziest among them, a willingness to leave four American citizens in Iranian prisons for many months more than necessary in order to score political points is almost beyond comprehension.

Evidently, the ascendance of Donald Trump and Ted Cruz is not an anomaly. Appalling as they are, they really do represent today’s GOP.

As I recently wrote elsewhere, Trump, especially, is what happens when politics becomes just another team sport–when campaigns are only about winning, whatever the cost in integrity.

When your sole political ambition is to win, when the only criterion for acceptable behavior is that it gives your “team” an advantage, is it any wonder that your party’s base chooses a self-described “winner”? When you have created a political culture that sneers at nuance and paints every policy dispute as a stark contest between “makers” and “takers,” is it any wonder that your voters see wealth as evidence of superiority? When you have countered even the mildest criticism of U.S. policy with exaltations of “American exceptionalism,” is it any wonder that your base embraces a xenophobic blowhard?

Trump truly is the id of today’s GOP.

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