Tag Archives: Garland

What Now?

I cannot recall a time when so many Americans were this angry. Of course, I wasn’t around for the civil war, (although sometimes I feel that old.)

We have certainly been deeply at odds before. Mostly, our conflicts have centered on clashing worldviews: wars, religious conflicts, extensions of civil rights, reproductive liberty, dissent and patriotism.  But right now, the fury being expressed by so many ordinary citizens seems different in kind.

It feels very personal.

Americans still have different perspectives on the issues, of course–in spades. U.S. citizens are not just polarized; they occupy different, inconsistent realities. But I think there is another element to the anger I see, an element the Kavanaugh hearings have amplified.

Reasonable Americans (by which I mean everyone who is to the left of Ann Coulter and Tucker Carlson) feel robbed.

There was the 2016 election, of course, in which the presidential choice of the majority was ignored, courtesy of an Electoral College that has outlived whatever utility it may once  have had.

There is the growing realization by urban dwellers that their votes–thanks to that same Electoral College– count for less than the votes of the far less diverse inhabitants of rural America.

And that’s when those urban folks get to cast their votes. Anger about increasingly blatant vote suppression tactics has been growing, too, especially among minority constituencies that have been robbed of their ability to redress their grievances via the ballot box.

Perhaps no robbery has rankled as much as the theft of a Supreme Court seat that–in accordance with American history and constitutional norms– should have gone to Merrick Garland.  The in-your-face behavior of Mitch McConnell poured salt on that wound. McConnell and the GOP made no effort to cloak their power play in even the thinnest of patriotic excuses; they didn’t bother to pretend that they were acting on some bizarre view of the national interest. Instead, they gloated publicly about their ability to abuse their power, and they were forthright about one reason for their unprecedented behavior: hatred of America’s first black President.

Women, of course, are routinely robbed of equality, respect and status in multiple environments, especially but not exclusively the workplace. Various religions counsel our submission, longstanding networks of “good old boys” dismiss and block our concerns and ambitions, the “powers that be” discount and trivialize our reports of victimization.

Moreover, to an extent only now becoming clear, we are viewed by far too many men as prey–objects to be harassed or assaulted with impunity.

Those on the right are no less angry–they actually may be more enraged–but the reasons are very different. These are primarily White Christians (disproportionately but not exclusively male) who have a well-founded fear that they soon will be robbed of their cultural dominance and privilege. They are reacting with fury to culture change and the increasing claims to a place at the civic table by LGBTQ, black and brown people, and women. Robert Jones has documented their resentment and rage in his recent book, The End of White Christian America.

The Kavanaugh hearings poured gasoline on all of those fires.

It was all there: the “old boys” once again dismissing the experience of a credible and accomplished woman, while simply ignoring the thousands of women who called and wrote and confronted them. The petulant,  entitled (and embarrassing) behavior of a privileged white guy outraged by the very idea that he might be called to account. The incivility shown to Democratic committee members by Kavanaugh, Senator Grassley and committee Republicans.

The hearing reopened the wound over Merrick Garland (not least because of the striking contrast in the two men’s judicial demeanor), and it reminded Democrats that–thanks to gerrymandering and the Electoral College– Republicans control  Congress and the White House despite the fact that a significant majority of the citizens who cast ballots voted Democratic.

Pent-up fury over all of this– plus the daily outrages of the Trump Administration– is likely to erupt in ways we’ve not previously seen.

I don’t know what comes next, but I’m pretty sure it’s going to be very ugly.

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Dirty Harry, Mitch McConnell and the Rule of Law

A former student recently asked for my opinion on Neil Gorsuch, Trump’s nominee for the current Supreme Court vacancy. As I told him, my concerns about Gorsuch pale in comparison to my deep disquiet over the Senate’s refusal to “advise and consent” with respect to President Obama’s nomination of Merrick Garland.

Let me be very clear: Had Mitch McConnell and the GOP conducted hearings on Garland’s nomination, and then voted against confirmation, I would have disagreed with the result. But I wouldn’t have been appalled. I wouldn’t have seen a rejection that emerged from the proper process as a dangerous affront to democratic norms and the rule of law.

McConnell’s refusal to follow the standard procedure contemplated by the Constitution and traditionally adhered to by the Senate was a worrisome and unprecedented assault on governmental legitimacy.

If there is one clear distinction between western constitutional systems and the various dictatorships and theocracies around the globe, it is the formers’ emphasis on the importance of fair procedures that everyone, even government, must follow. As I’ve previously argued, the Bill of Rights might justifiably be characterized as a restatement of your mother’s admonition that how you do something can often be more important than what you choose to do.

“The ends do not justify the means” is a fundamental principle of American law.

Adherence to objective and uniform procedures–the institutional means through which governments achieve their ends—is at the core of the rule of law. For ideologues and theocrats, however, achieving the “right” outcome, managing to win one’s preferred outcomes even if that requires ignoring or circumventing accepted rules, is what is important. It’s the age-old conflict between the rule of law and the “rule of men” (aka the exercise of raw power).

I’ve always hated those “Dirty Harry” type movies, where the purported “good guy” foils the villain by breaking the rules. Those movies elevate the ends over the means–just as Mitch McConnell did when he exercised arbitrary power, in defiance of accepted democratic norms, simply because he could.

In an article about Gorsuch, Dahlia Lithwick recently argued that

the nomination is wholly illegitimate. Gorsuch may or may not be a good judge, but there is no principled reason for him to have a hearing when Merrick Garland did not. This is a problem of power, not legal qualifications.

The Democrats have an unpleasant choice to make. They can refuse to participate in Gorsuch’s hearings, implicitly normalizing this sort of thuggish behavior and doing further damage to American law and institutions, or they can participate in the hearings and demonstrate fidelity to the Constitutional process, recognizing that they are thereby tacitly condoning McConnell’s unconscionable breach and arguably encouraging more and further departures from government legitimacy and the rule of law.

Thanks to Mitch McConnell and his desire to flex his legislative muscle, to display to his base and his political opponents alike his power to “steal” a Supreme Court seat, either option will further erode American democracy and diminish respect for American political institutions.

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