The Main Remedy to Trump is an Election

But, our process to elect the president is highly flawed.

“#USAxAUS” by White House is in the Public Domain

Author’s note to the reader: before you jump in and assume I am arguing against impeachment, please read the post.

I, personally, think that President Trump’s actions as detailed in the Mueller Report rose to the level of impeachable offenses. I do think that he sought to obstruct justice. Further, I think that his campaign, with his knowledge, did seek out help from Russia, even if the legal threshold for a criminal conspiracy may not have been met.

Having said that, I understand why Speaker Pelosi has been reluctant to engage the impeachment process in the House of Representatives. It boils down to the obvious wall of resistance that an impeachment would face in the Senate and the fear that the process would energize the GOP base, possibly aiding Trump’s re-election (and hence have the opposite effect of the impeachment process).

I must confess that I am not entirely persuaded by this logic, as I think it possible that a thorough set of impeachment hearings could put information front and center into the public conversation that needs to be aired (but do agree that removal remains off the table). Although my confidence in the House’s ability to provide a competent and thorough process has waned over time, and things like the Lewandowski circus this week underscores how difficult it is to proceed if witnesses will not act in good faith and if the House is unwilling to flex its muscles.

Regardless, if Trump did, in fact, suggest in any way to the Ukrainian president that he should be looking to dig up dirt on his political rival, then I think that the House has to hold him accountable as much as it can, even if it means impeachment without removal.

But, of course, the only way to definitely end the Trump administration is for him to be defeated at the polls in November of 2020. Or, more accurately, for him to be defeated in the Electoral College in December of 2020 (when the constitutional election of the president takes place).

Because, of course, Trump was defeated at the ballot box in November of 2016. He lost the popular vote by almost three million votes. This is not news and bringing it up may seem simplistic or even pointless, since we all know that citizens don’t elect the president, the Electors do, and in a way that inflates the significance of some citizens to the relative detriment of others.

So now we have a situation in which a president who has already been credibly accused of obstruction of justice as it relates to activities linked to election interference by a foreign power is now being credibly accused of using his office to solicit aid in his re-election campaign.

The broader institutional context is as follows:

  1. The House has the power to impeach, and it is only portion of the current federal government which can be said to have been elected by a majority of voters nationally (although for Democrats to do so, they often have to over-perform nationally as well as overcome the geographic sorting problems single seat districts create. And both parties have to deal with gerrymandering, which undercuts representativeness nationally).
  2. The Senate is controlled by the president’s party, which represents less than half the population, and can block any move to remove.
  3. Any legal disputes over this process will go to courts that have been heavily influenced by the appointments of a president who did not win the popular vote and confirmed by a Senate that represents less than half the population.
  4. Any SCOTUS cases would be heard by a Court where four of the five Republican nominees were appointed by presidents who first came to office without winning the popular vote (two by the sitting president*). And, further, the currently majority on the Court was made possible by the aforementioned Senate blocking the appointment of a Justice by a Democratic president.

Have I ever mentioned that institutions matter?

Trump won the needed Electoral Votes by winning a combined ~78,000 votes across three states.**

A string of counter-majoritarian elements of our constitution have put us in a position wherein removing a president who has engaged in a series of corrupt acts*** is only really possible by defeating him at the ballot box in sufficiently high numbers to guarantee that the Electoral Vote also is in his opponent’s favor.

None of this is a shocking nor original set of observations. However, it underscores why a lot of citizens are frustrated with our politics, even if they don’t understand why.

It also points out how a system that promised democracy, but instead empowers minorities over majorities, leads to corrupt acts since minorities fear losing power to the majorities once all of this nonsense catches up to them. Rules create incentives, and in this case they are creating incentives that are problematic (at least if one is opposed to corruption).

We have a serious problem with representation in this country, and it is papered over by appeals to the Constitution and Framers as if it was a Stone Tablet brought down from Sinai by Moses. These problems are further obscured by the complex interaction of factors (e.g, the linkages of the EC to the president to the per-state allocation of Senators to the appointment of courts). Then, on top of it all, exacerbated by the fact that one party clearly benefits, and therefore seeks to obscure the injustices the system creates since they redound to their advantage (and the current media envirnoment deepens it all).

So, yes, impeachment seems unlikely. Election is the only real remedy we have, but (and this is a big “but”): it is incomplete because of the structural conditions that limit the representativeness of the House and the design of the Senate (i.e., replacing Trump doesn’t solve the underlying problems).

I do think that these factors are not well understood nationally, and while a conversation has started in ways that were not the case even half a dozen years ago, I keep bringing them up in the hope of making a small contribution to forwarding the discussion.

At some point, however, our institutions need to be reformed or they will break under the contradictory strains that exist between the promise of government of, by, and for the people and the reality of institutional structures that thwart actual representation of public will (and the corruption that comes with it)


*And one of the nominees has special reasons to act in a partisan manner and to feel specific loyalty to the sitting president.

**And I am to the point wherein I think it is not unreasonable to argue that Russian attempts to interfere with the campaigns helps account for this outcome. For example, the Seth Rich disinformation campaign had its origins with Russian intelligence. The false narrative they wanted to create was that the DNC was unfairly helping HRC over Bernie (as based on e-mail leaked by, you guessed it, Russian intelligence). Stoking anti-HRC anger on the left almost certainly helped drive voters to either stay home or to vote third party. With margins like we saw in MI, PA, and WI, it is not hard to see how Russian actions could have influenced ultimate outcomes.

Note, to my broader point, how small shifts in key states can affect who the winner is not because national sentiment matters, but because the EV allocation does.

***This post doesn’t even get into the emoluments issues.

FILED UNDER: Donald Trump, Impeachment, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Stormy Dragon says:

    An election that he’s in the process of rigging, which he’s in position to do because he successfully rigged the last election.

    ReplyReply
    23
    1
  2. drj says:

    It seems to me you got the diagnosis right, but I just don’t see a realistic way forward.

    At some point, however, our institutions need to be reformed

    How?

    Any thoughts?

    ReplyReply
  3. Scott F. says:

    I’m in agreement with all of this, Steven, but would like to underline a point you make about improving our confidence in our institutions.

    …if [Trump administration] witnesses will not act in good faith and if the House is unwilling to flex its muscles

    The House has muscles to flex that run short of impeachment, but would carry more weight than the strongly worded letters we are seeing now. Let’s start by filing Contempt of Congress charges that have some meaningful penalties behind them. Some serious fines on the peripheral characters and up to the full 12 months of jail time for the more egregious offenders. AG Barr in a cell would do a great deal to restore a sense that no one is above the law.

    ReplyReply
    20
    2
  4. Scott F. says:

    @drj:
    How do we reform?

    There’s a candidate for the Democratic nomination that is arguing for “big, structural changes” and it appears she has clear plans for how to do them. Let’s start with electing her.

    ReplyReply
    12
    1
  5. GHW says:

    Yes:Trumps removal will not happen because of the Senate.

    Yes: the US is not the democracy the founders were expecting because of gerrymandering and the abandonment of norms by the GOP and the lack of teeth in the individual branches of government when overseeing each other.

    Yes but: Trump won with a less then majority of votes. but this was facilities by Democratic and independent voters who would have voted Den but didn’t want to vote for Clinton. Call me an optimist but I think the 2020 election will will turn out more Den voters than ever before. And I think more independents will vote for the Dem candidate and may certainly be joined by moderate republicans (or at least the latter will not cast their vote for Trump).

    I think Trump is so objectionable to many voters, the presidential election is an easy win.

    My concern is the House and Senate. For the US to confront its problems with 21st century solutions, we have to win in all three branches of government. The GOP is populated by people who are unable or unwilling to see beyond their own person horizons, putting short term profit and short term personal interest above all else. The party must change or be voted into irrelevance.

    ReplyReply
    14
    2
  6. Gustopher says:

    But, of course, the only way to definitely end the Trump administration is for him to be defeated at the polls in November of 2020.

    The engineer in me wants to point out all the other alternatives. Nuclear war that vaporizes everyone on the planet, for instance. What our friends on the right would euphemistically refer to as second amendment remedies, etc.

    And you are assuming that Trump and the Republicans would not declare an election that he lost was invalid, and cling to power in a coup.

    Because, of course, Trump was defeated at the ballot box in November of 2016. He lost the popular vote by almost three million votes. This is not news and bringing it up may seem simplistic or even pointless, since we all know that citizens don’t elect the president, the Electors do, and in a way that inflates the significance of some citizens to the relative detriment of others.

    It’s almost as if we live in A Republic, Not A Democracy.

    (I figure, if you’re going to trigger my tics, I should try to trigger yours)

    ReplyReply
  7. @Gustopher: It’s almost as if we live in A Republic, Not A Democracy.

    More like we live in a dysfunctional democracy. 😉

    ReplyReply
  8. @drj:

    How?

    Any thoughts?

    This is a major problem, I agree, and why I more and more fear that things are just going to continue to get worse.

    The gateway may be hardball like adding states or packing the Court–but even as I type that, such actions seem unlikely, possibly really bad ideas, and likely to spur an even deeper crisis.

    ReplyReply
  9. Gustopher says:

    At some point, however, our institutions need to be reformed or they will break under the contradictory strains that exist between the promise of government of, by, and for the people and the reality of institutional structures that thwart actual representation of public will (and the corruption that comes with it)

    I suspect that a substantial number of people on the right — the same ones who keep saying “it’s a republic, not a democracy” — are more willing to resolve the contradiction by jettisoning the “Of, by, and for the people” than fix the institutional structures to be more democratic. In fact, that’s exactly what they mean when they say “it’s a republic, not a democracy”.

    And, the institutional structures are on their side.

    I don’t see how the institutional structures get fixed short of violence. I don’t see how we get two thirds of the states to agree to an Amendment to limit their own outsized power.

    I want to be clear that I’m not going to pursue violence — I’m upper middle class, fat, lazy and have anxiety problems, so I’d make a terrible revolutionary. In fact, the best thing I could do for the success of the revolution is not get involved, because I would crack immediately under interrogation and reveal everything I know. My unswerving loyalty to the revolution is best demonstrated by letting others take all the risks, etc.

    I’m just saying that slipping into a dictatorship is more likely than fixing the electoral college, senate and congressional districts. And a Second American Revolution would be all but inevitable at that point, but very possibly not successful.

    Sputtering along as a nonfunctional democracy seems most likely though.

    ReplyReply
    4
    2
  10. de stijl says:

    Apparently, institutions matter.

    ReplyReply
  11. Kit says:

    At some point, however, our institutions need to be reformed or they will break under the contradictory strains that exist between the promise of government of, by, and for the people and the reality of institutional structures that thwart actual representation of public will (and the corruption that comes with it)

    I think that the argument you are making, in part, is that Republicans have gamed the system and now fear any changes that would help address the imbalance. Yeah, I guess, but I really wonder if the average Republican would see himself in this mirror.

    Tinker with the institutions as you like, in the end you must either let the majority call the shots, or grant the minority power in proportion to their numbers. And today, 40+% of the people have no real feeling for democracy in their bones. Yes, our institutions could be made more solid, but the real problem is that gerrymandering and voter suppression lead to candidates running to the right, and then, ahem, a clear choice is handed over to an electorate dreadfully informed and led by the nose by big money. The real problem is lower than you are looking—it is what is happening on the ground. Any system you might imagine would groan under the weight of the people we are choosing to govern us.

    ReplyReply
  12. JKB says:

    @Stormy Dragon:

    Do you mean like this rigging that CNN found in Minnesota recently?

    “and Republicans are kinda taken over…the party for jobs” That’s some Grade A election rigging there, being the party for jobs.

    ReplyReply
    1
    14
  13. al Ameda says:

    ‪We can do both – impeach Trump and win an election. I definitely do not believe that impeaching Trump precludes a Democratic victory in November.‬

    ShouldTrump be impeached? Yes. Would the Republican senate convict? No. Still the right thing to do.

    ReplyReply
    12
    1
  14. restless says:

    It’s almost like the Constitution *is* a suicide pact.

    ReplyReply
    3
    2
  15. Scott O says:

    I’m starting to think that we need an amendment to the constitution, probably about the only one that could pass in this day and age. It would permit states to leave the union. I hate saying that but I think we’re in a bad situation and I don’t see it changing in my lifetime.

    ReplyReply
    2
    4
  16. Teve says:

    @Scott O: Since Jesustan would become a third-world country with a televangelist dictator about 13 seconds after leaving the US, my big question is, would the resulting US borders be defensible?

    ReplyReply
  17. @JKB: Your point doesn’t even make sense.

    No one is denying that Trump has made promises that some people like and that they therefore changed their voting behavior.

    None of that deals with the fact that he doesn’t have majority support and won with the second most votes.

    This would be a very different discussion if he had won outright and could muster a 50%+ approval once in a while.

    ReplyReply
    18
  18. @al Ameda: I concur.

    ReplyReply
  19. An Interested Party says:

    …if the House is unwilling to flex its muscles.

    And why won’t the Democrats flex their muscles? Are they worried that there will be some kind of groundswell of support and sympathy for the loathsome Lewandowski? Are they that feckless? That scared of some imaginary consequence? One thing about Republicans, they are always ready to dive into the pool, even if they are diving into the shallow end…

    The gateway may be hardball like adding states or packing the Court–but even as I type that, such actions seem unlikely, possibly really bad ideas, and likely to spur an even deeper crisis.

    Why are these really bad ideas?

    ReplyReply
  20. 95 South says:

    @Steven L. Taylor:

    This would be a very different discussion if he had won outright and could muster a 50%+ approval once in a while.

    If Trump won with a majority of votes, one talking point would be different.

    ReplyReply
  21. 95 South says:

    @Steven L. Taylor:

    This would be a very different discussion if he had won outright and could muster a 50%+ approval once in a while.

    Trump did win outright.

    ReplyReply
    19
  22. @95 South:

    If Trump won with a majority of votes, one talking point would be different.

    Indeed. The rest of the representativeness issues would still be in place.

    ReplyReply
  23. @95 South:

    Trump did win outright.

    He won the EV, not the popular vote.

    That matters, especially in the context of a discuss of how representative our institutions are (or are not, as the case may be).

    ReplyReply
    15
  24. @An Interested Party:

    Why are these really bad ideas?

    To clarify: I have not decided whether they are good ideas or bad ideas. They represent clear escalation, which will have a response, and more escalation leads to further damage to the system.

    At any given moment I think that such moves may well be necessary and at others I fear the spiral that could occur if both side continually up the ante.

    ReplyReply
  25. Gustopher says:

    @95 South:

    If Trump won with a majority of votes, one talking point would be different.

    Correct. Even a democratically elected president should not be above the law.

    ReplyReply
  26. Court packing, in particular, gives me pause insofar as the judiciary’s nonpartisan status is already eroding. If it is destroyed altogether, than could be dangerous for long-term governance.

    Adding states is also pretty dramatic, but may be wholly justifiable.

    Of course, I would very much like to see the House expanded, which is a less dramatic reform, and doable with a Democratic majority in both chambers (and the nuclear option vis-a-vis the filibuster).

    ReplyReply
  27. Mostly my small-c conservative disposition kicks in in these conversations because of the real problem of unintended consequences and an inability to know how certain moves would play out.

    ReplyReply
  28. @95 South: BTW, I note you utterly ignored his inability to get even 50%+1 approval.

    ReplyReply
  29. mattbernius says:

    @Steven L. Taylor:

    Court packing, in particular, gives me pause insofar as the judiciary’s nonpartisan status is already eroding. If it is destroyed altogether, than could be dangerous for long-term governance.

    […]

    Of course, I would very much like to see the House expanded, which is a less dramatic reform, and doable with a Democratic majority in both chambers (and the nuclear option vis-a-vis the filibuster).

    Agreed on both points.

    In fact, I’m really disappointed that the Democrats have not made lifting the current cap on the House (based on a census from over a century ago, before our population tripled) more of a platform issue.

    ReplyReply
  30. @mattbernius: It is a hard sell to say we need more politicians (and then there is the cost associated with it–more staff, more office building, renovations to the House chamber, etc).

    ReplyReply
  31. Teve says:

    @mattbernius: @Steven L. Taylor:

    expanding the House would also properly alter the Electoral College.

    ReplyReply
  32. @Teve: Exactly. It wouldn’t totally solve the problem of the EC, but it would lessen it.

    ReplyReply
  33. An Interested Party says:

    …I fear the spiral that could occur if both side continually up the ante.

    That’s a fair point, but Republicans, as they continue to see their base shrink, will do anything they can to hold onto power, so whether the Democrats pursue these moves or not, Republicans will continue to up the ante…

    ReplyReply
    5
    1
  34. de stijl says:

    @An Interested Party:

    Related. Would Rs be down for expanding the House?

    Given what we know of them it’s gonna be a solid no. If there is the slightest chance it would dilute their aggregate power they will fear monger the crap out that proposal.

    Same thing with independent redistricting committees for an equitable distribution of votes. It’s party before country. They do not want an even field.

    Anything less than systemic tilt towards rural districts they will fight to the death.

    ReplyReply
  35. Andy says:

    @Steven L. Taylor:

    I also support expanding the size of the house, it would help with a lot of problems.

    But I haven’t heard any politicians talk about it much less come out in support. And I think it would be a hard sell for representatives because they’d lose influence and money as well as the uncertainty of having to run in a district that is far different than what they currently represent.

    As far as packing the court goes, there’s no legitimatize reason to do it other than as a partisan power-play which would only be seen as legitimate by the side that does it. Any success would likely be short-lived. The legitimacy of the judiciary would be diminished further.

    There are better alternatives to the destructive escalation spiral with the judiciary, but the relevant parties (the Dem and GoP leadership) seem interested, to say nothing of the base, who are only out for blood.

    ReplyReply
  36. gVOR08 says:

    By coincidence this morning I read the following suggestions in Ill Winds by Larry Diamond. Struck me as a reasonable starting point. Even featured ranked choice voting.

    This chapter will discuss seven remedies to our democratic woes. Above all, we need to change the method we use to elect public officials so that we provide voters with more choice and give politicians more incentives for moderation, civility, and compromise. We also need to eliminate gerrymandering, an undemocratic scourge. We need to expand voting rights and defeat partisan efforts at voter suppression. We need a fairer way of electing the president, particularly by retiring the Electoral College. We need Congress to change its rules to make each house work far better. We need campaign-finance and lobbying reforms to reduce the tide of unaccountable money in politics. And finally, we need to defend our voting systems against foreign sabotage. Eminently practical ideas are now circulating for achieving each of these objectives; none of them requires a constitutional amendment, and all of them can be avidly pursued even while Donald Trump remains in office.

    ReplyReply
  37. 95 South says:

    @Gustopher: Mueller didn’t make the case. Unlike Democrats, Republicans put the country before the presidency, but you have to make the case. Mueller didn’t.

    ReplyReply
    1
    21
  38. @de stijl:

    Would Rs be down for expanding the House?

    I concur. I would be a solid “no” (if not, “hell, no!”). They would frame it as more politicians and huge new costs for those politicians.

    ReplyReply
  39. @gVOR08: I have been reading that book as well, which I very much recommend. Diamond knows what he is talking about.

    ReplyReply
  40. An Interested Party says:

    As far as packing the court goes, there’s no legitimatize reason to do it other than as a partisan power-play…

    Bullshit…Republicans stole a seat from a Democratic president, that action needs to be corrected, because Republicans will do the same thing to the next Democratic president if they can…

    Unlike Democrats, Republicans put the country before the presidency…

    BWAHAHAHAHAHA…oh that’s very amusing…if Republicans really put country first they wouldn’t continue to stand behind a corrupt and treasonous president…

    ReplyReply
    11
    2
  41. Andy says:

    @An Interested Party:

    Bullshit…Republicans stole a seat from a Democratic president, that action needs to be corrected, because Republicans will do the same thing to the next Democratic president if they can…

    Thank you for proving my point.

    ReplyReply
  42. Gustopher says:

    @95 South: I recommend reading the Mueller report, keeping the DOJ policy about indicting a president in mind.

    But, ignore that and focus on Obstruction Of Congress, and the current claims that congress has no oversight role.

    That is not a precedent you want to let stand, unless you believe there will never be an administration that you don’t approve of AND you believe that the ends justify the means.

    On the other hand, such expanded executive power with no checks could be what we need to handle global warming, and even if Trump wins in 2020, he’s really old and term limited by the constitution.

    ReplyReply
  43. Gustopher says:

    @Andy: But your point was that IF X happens, then there will be consequences Y. AI Party points out that X has already happened.

    Rather different points.

    ReplyReply
  44. de stijl says:

    @Gustopher:

    When did artificial intelligence enter into this?

    Sorry, stupid take on “AI Party”.

    ReplyReply
  45. 95 South says:

    @An Interested Party: Nixon – Republicans put country first. Clinton: – Democrats put party first.

    ReplyReply
    11
  46. An Interested Party says:

    Thank you for proving my point.

    It’s interesting how a certain kind of “reasonable” person forgets all about Bush v. Gore or Merrick Garland and pleads with people to be sensible and look for compromise and implies that Democrats should just do the same and everything will be fine…of course, this scenario that this “reasonable” person is pushing is how we got to our present situation in the first place…

    Nixon – Republicans put country first. Clinton: – Democrats put party first.

    Trump — Republicans put Trump first…

    ReplyReply
  47. Gustopher says:

    @95 South:

    Nixon – Republicans put country first. Clinton: – Democrats put party first.

    The Republicans did eventually come around on Nixon, after the Saturday Night Massacre.

    I disagree that Clinton should have been removed from office — the test for me is n-fold: Were crimes (or things that should be crimes) committed? Were they significant enough to warrant overturning an election?

    Clinton met the first, but not the second. Lying under oath in a civil case unrelated to of his office just isn’t that important.

    And the Democrats were divided on what to do.

    Had there been credible evidence of rape, or running the Arkansas drug trade, or murdering Vince Foster, or any of the other serious accusations, Democrats would have voted to impeach.

    Contrast with Trump, where there are well documented cases of obstruction of justice relating to a matter of national security, obstruction of congressional oversight, willful disregard for reporting foreign contacts (at best), emoluments… and Republicans are lock step in support.

    Back in the McCain campaign, when he had the slogan “country first” I would quip that if you have to say it, it’s not really true. But, really, he just had a very different idea of what this country is.

    Right now, I’m not sure if the country is in the Republicans’ priorities at all.

    I’d refer you to Pruitt in the EPA — he was comically corrupt, and you could easily find some other roadie to dismantle everything without the corruption, but there was not a peep out of the Republicans.

    ReplyReply
    4
    1
  48. Just nutha ignint cracker says:

    @Gustopher: I’m pretty confident that 95 South believes that the ends justify his prefered means. Sadly, I also expect that he lacks the foresight to predict that conditions on the ground will change, so talking about consequences that could happen when somebody else is justifying their means pretty much sounds like “blah, blah, blah” to him.

    ReplyReply
  49. Andy says:

    @An Interested Party:

    It’s interesting how a certain kind of “reasonable” person forgets all about Bush v. Gore or Merrick Garland

    I haven’t forgotten about it, rather it seems like many have forgotten about all the previous escalations the Dems did and the norms broken, using things the GoP did as a justification. And then the GoP used those things your side did to justify their own escalation.

    Hence the whole point I’ve been making that we’re in an escalatory spiral.

    Packing the court would be a partisan, escalatory response, quite obviously intended to set the balance of the judiciary and/or SCOTUS in favor of Democrats. It’s clearly not an attempt to reset the status quo ante, nor is it even an “eye for an eye” since it breaks another norm and continues the spiral. Plus, it would be a response taken after the previous escalatory response to Garland (filibustering Gorsuch) failed. That turned out to be a dumb move, but here we are.

    Furthermore, attempting to pack the court would invite a counter-response and so the escalatory spiral would continue.

    The insanity is thinking anyone comes out of this a winner. Seriously, how do you imagine this will play out over the long term?

    That some Democrats think packing the court is a justified action to get revenge for Garland or Bush v Gore doesn’t change these facts.

    Finally, one can’t reasonably claim to value the independence, legitimacy, and respect of the judiciary as long as one actively seeks to turn it for partisan advantage.

    ReplyReply
    1
    8
  50. An Interested Party says:

    …the previous escalations the Dems did and the norms broken…

    Such as?

    That some Democrats think packing the court is a justified action to get revenge for Garland or Bush v Gore doesn’t change these facts.

    As Steven noted, four of the five members of the Court were Republican nominees appointed by presidents who first came to office without winning the popular vote and the current majority on the Court was made possible by the Senate not giving Merrick Garland a hearing, much less a vote…so it’s not about revenge, rather, it’s about what you yourself suggested–an attempt to reset the status quo…

    The insanity is thinking anyone comes out of this a winner.

    Ahh, Democrats should just sit back and let the Republicans appoint as many Federalist Society members as they can, by any means necessary…we certainly know who the losers are by following that course of action, and they are more than just Democrats…

    Finally, one can’t reasonably claim to value the independence, legitimacy, and respect of the judiciary as long as one actively seeks to turn it for partisan advantage.

    The independence and legitimacy of the Court went out the window with Bush v. Gore, a prime example of partisan advantage…

    ReplyReply
  51. Ken_L says:

    Steve refers to Pelosi’s fear of ‘energizing Trump’s base’. It’s hard to imagine how it could be any more energized than it already is, whipped up by Trump’s endless barrage of paranoid tweets and campaign rallies. I rather think the unspoken fear is not of energizing them, but of provoking them to throw constitutional government overboard completely.

    The US is in a position that in some respects is similar to the 1850s: people are nervous about doing what is plainly the moral and constitutionally correct thing in case opponents react by wrecking the whole country. So they temporize and compromise and wait on developments, just as Pelosi seems to me to be hoping against all the evidence that some day public support will turn against Republicans and sweep them from power.

    ReplyReply
  52. James Joyner says:

    @Andy: Vastly expanding the size of the House is the simplest of the major fixes to achieve, since a Democratic Congress that jettisons the filibuster could do it. And I’d support it unequivocally since it would be entirely legitimate.

    I agree that packing the courts would be seen as illegitimate and further weaken the institution, since it relies on a Wizard of Oz theory to work. The counter-argument is that the GOP essentially stole the seat that Neil Gorsuch is sitting in and then upped the ante by ramming Brett Kavanaugh through for no good reason.

    @gVOR08: Retiring the Electoral College would absolutely require amending the Constitution. Some of the others would require changing how SCOTUS interprets the Constitution.

    ReplyReply
  53. mattbernius says:

    @Ken_L:

    Steve refers to Pelosi’s fear of ‘energizing Trump’s base’. It’s hard to imagine how it could be any more energized than it already is, whipped up by Trump’s endless barrage of paranoid tweets and campaign rallies.

    I think the focus on Trump’s base is a bit off. The real issue is energizing Republicans and Independents who are base adjacent. The folks who, in the last election, more voted against Clinton than for Trump.

    Again, it’s why I keep harping on the problem with the guns issue. I think there are a lot of people in places like rural Pennsylvania or Michigan than have soured on Trump enough that they won’t go out of their way to vote for him. But they can be energized to vote against a Democrat if the right issues are in play.

    I go back and forth on whether or not impeachment would have the same effect. I appreciate Pelosi’s calculus that if the Senate is already stating that it doesn’t have the votes then it’s probably not worth the risk. The idealist in me hates that idea. The pragmatist in me thinks she’s right — or rather that it isn’t worth the risk.

    ReplyReply
  54. @Andy:

    Packing the court would be a partisan, escalatory response, quite obviously intended to set the balance of the judiciary and/or SCOTUS in favor of Democrats. It’s clearly not an attempt to reset the status quo ante, nor is it even an “eye for an eye” since it breaks another norm and continues the spiral.

    I agree with this assessment, more or less. It would be escalation. Where I differ with Andy is that there are moments in which I think the escalation is warranted, that there is not status quo ante to return to.

    Keep in mind: pretty much all the Senate has done during the Trump administration has been to confirm judges (after slow-walking Obama nominees). How does the system deal with that disequilibrium?

    I agree it would be escalatory and lead to more tit-for-tat, and that conflict worries me.

    So, part of me thinks it would be justifiable. But all of me knows it could create more, and more serious, problems. Hence my equivocation.

    ReplyReply
  55. Andy says:

    @Steven L. Taylor:

    To expand on my comment, and as you well know, I’ll reiterate that I’m not a partisan. I do not want to see the judiciary dominated by Republicans or Democrats. My pushback here is limited to Democrats, it’s just a consequence of the community here being on that side of the fence.

    If judicial nominees are going to be nominated on the basis of friendliness to partisan policy preferences and interests, then my goal would be to ensure that neither side gets a decisive advantage.

    I also, in a sense, understand how such measures are justifiable – in a sense. Well, perhaps not justifiable, but understandable. I can understand why people would think escalation is justifiable. In the context of the current political environment dominated by bimodal partisanship and tribalism, the escalatory spiral is currently an inevitable consequence.

    If you go to right-wing sites you’ll hear many of the same arguments for escalation that are in this thread. Republicans are just as convinced as Democrats that compromise, steps to ratchet down the conflict, or refusal to compound an advantage when it presents itself, will only result in “unilateral disarmament” and therefore reward the other party for all their bad behavior. Republican escalations are therefore seen as completely justified responses and Republicans will be happy to list all their own grievances and the escalations Democrats took as this spiral has progressed.

    So I think I understand the cycle and I understand how those trapped in it feel like they have no choice but to continue compounding escalation. It’s rational in a narrow, tactical sense.

    But tactical victories don’t win a war, particularly one that likely isn’t winnable. This cycle will continue until the judiciary augers in and then what?

    How does this end?

    ReplyReply
    2
    2
  56. Andy says:

    @James Joyner:

    Vastly expanding the size of the House is the simplest of the major fixes to achieve, since a Democratic Congress that jettisons the filibuster could do it. And I’d support it unequivocally since it would be entirely legitimate.

    I agree, but I don’t see any Democratic support for this move. I haven’t spent a ton of time looking, but I’ve yet to see any sitting politician support this much less submit legislation. If there is actually Democratic support for this, I’m not seeing it. Right now, the idea seems confined to wonks, people like us, and academics.

    There are many reasons why members of the house would not want this as it would diminish their power and leave them vulnerable to losing their seats as districts are reapportioned. Like term limits, I think it will be an idea that’s popular with almost everyone except those who have the power to make the change.

    ReplyReply
    1
    1
  57. Andy says:

    @An Interested Party:

    Such as?

    Two easy examples:
    – Democrats used the filibuster successfully for the first time on an appeals court nominee (Estrada in 2003) and it was also the first time the filibuster was used against such a nominee that had majority support in the Senate. In the previous three decades, cloture motions had only been invoked six times, and none of them blocked the nominee. After Estrada, Democrats went on to filibuster 9 other nominees in this way, leading to the whole Gang of 14 attempt at a compromise.
    – Democrats invoked the nuclear option in 2013 for lower court nominations.

    ReplyReply
  58. @Andy:

    – Democrats invoked the nuclear option in 2013 for lower court nominations.

    In regards to that one: that is the majority taking control of a process under the weigh of minority obstruction (and, really, is part of the broader problem that Senate representation creates).

    ReplyReply
    6
    1
  59. Andy says:

    @Steven L. Taylor:

    In regards to that one: that is the majority taking control of a process under the weigh of minority obstruction (and, really, is part of the broader problem that Senate representation creates).

    Sure, but it’s still breaking a norm – which the GoP expanded on when they nuked the filibuster for SCOTUS nominations.

    ReplyReply
    1
    2
  60. @Andy: It underscores the problem of the disjuncture between representativeness and the powers of the institutions.

    ReplyReply
  61. 95 South says:

    @Gustopher: Fine, let’s say you’re an honest one. Your bad luck is, you’re with a party that never pulled the trigger on its own but always on your opponents. You have the lying media on your side and your 2 year investigation didn’t make the case. I don’t have a lot of faith in Republicans but Democrats have no credibility at all.

    ReplyReply
    10
  62. mattbernius says:

    @95 South:

    You have the lying media on your side and your 2 year investigation didn’t make the case.

    First, “lying media” huh… What media, out of curiosity, do you trust? And can you present specific instances of the media “lying” about substantive aspects about things like the Mueller Report.

    Beyond that, the 2 year investigation, culminating in the report, makes an incredibly strong case that (1) there was Russian interference in the 2016 elections that was intended to benefit the Trump campaign, (2) that the President (“mostly unsuccessfully”) attempted to obstruct the investigation, and (3) that due to uncooperative witnesses, the Special Counsel was unable to figure out the extend of interactions and cooperation between members of the Trump campaign and the Russians.

    That you apparently choose to ignore those findings might speak more about your bias and partisanship than the investigation itself.

    ReplyReply
    8
    1
  63. Just nutha ignintm cracker says:

    @Andy: I would go a different direction than you seem to be going on this issue and say instead that if judicial nominees are going to be nominated on the basis of friendliness to partisan policy preferences and interests, the issue of what we call impartial justice is already lost. There are critics in the world that would say that impartial justice has never existed except as an abstract concept. They may be more accurate than I would like to believe.

    ReplyReply
  64. gVOR08 says:

    @James Joyner: Diamond’s proposal for dealing with the Electoral College is the National Popular Vote Compact. He sees that it’s made a lot of progress and has hope it could reach the 270 vote threshold. He feels that many Republicans support fairness, so they would be OK with it. Diamond is an optimist and he’s talking about Republican voters, not pols and apparatchiks. The Republican pols and apparatchiks would, of course, fight tooth and nail in the courts. But Diamond is correct when he says of the NPV and the other measures he details,

    Eminently practical ideas are now circulating for achieving each of these objectives; none of them requires a constitutional amendment, and all of them can be avidly pursued even while Donald Trump remains in office.

    And there’s a hope that John Robert’s might not be willing to distort the Constitutions enough to rule against the NPV.

    ReplyReply
  65. 95 South says:

    @mattbernius:

    What media, out of curiosity, do you trust?

    None of it in the first 24 hours, when the open forum has its breaking Kavanaugh reports and Russian oligarchs cosigning loans. You can see how it makes people stupider, and they never follow up. Democrats are more gullible than the dumbest birther was 8 years ago.

    ReplyReply
  66. @95 South: An impressive non-answer.

    ReplyReply
    7
    1
  67. mattbernius says:

    @95 South:

    None of it in the first 24 hours

    I agree with you on this one. But the fact that you seem to be suggesting that after 24 hours, media becomes trustworthy, that seems to undercut your entire “lying” arguement — after all the media is correcting itself.

    Democrats are more gullible than the dumbest birther was 8 years ago.

    Huh… since you brought up the topic of birtherism, it’s a well established fact that our current president actively supported that movement for years. And since you also seem to be very strong in your belief that we should be skeptical of what you call a “lying media” I was wondering if you also think that same skepticism should be extended to President Trump given his well established record of willingly and repeatedly presenting demonstratively wrong statements about facts.

    I seem to think there’s a word for that, but I can’t seem to come up with it.

    @Steven L. Taylor:
    I thought the same thing — including completely skipping over the findings of the Mueller report.

    ReplyReply
  68. An Interested Party says:

    I do not want to see the judiciary dominated by Republicans or Democrats. My pushback here is limited to Democrats…

    That’s awfully convenient considering Republicans have already gained an illegitimate advantage…as for SCOTUS itself, there is no way it can’t be dominated by one party or the other, unless it made to have an even number of Justices and they are equally picked by both major political parties…

    If judicial nominees are going to be nominated on the basis of friendliness to partisan policy preferences and interests, then my goal would be to ensure that neither side gets a decisive advantage.

    Again, can someone explain how that is possible? And it’s too late to use that “if”…judicial nominees have already been nominated on the basis of friendliness to partisan policy preferences…for some time, in fact…

    I don’t have a lot of faith in Republicans but Democrats have no credibility at all.

    It’s just so cute when someone acts like he is about the fray but still manages to trash just one side and not the other…how adorable…

    ReplyReply
  69. Warren Peese says:

    It would be tougher to re-elect an impeached president than one whom Pelosi took a pass on. The Speaker made a huge mistake by not starting an impeachment inquiry after the Mueller report came out.

    ReplyReply
  70. 95 South says:

    @Steven L. Taylor: I answered the best I can. Where do you get your news? In current year, everywhere. NYT, Wikipedia links, Google news, government reports, NHK, religious news outlets for China info.

    ReplyReply
  71. @95 South:

    I answered the best I can.

    No, actually, you didn’t. You barely answered at all.

    Where do you get your news?

    Is this a good faith question or a deflection?

    ReplyReply
    3
    1
  72. mattbernius says:

    @95 South:

    In current year, everywhere. NYT, Wikipedia links, Google news, government reports, NHK, religious news outlets for China info.

    Ok, and to your original point: are they all liars who cannot be trusted? I mean outside of the first 24 hours?

    ReplyReply
  73. 95 South says:

    @mattbernius: I don’t trust them without confirmation.

    ReplyReply
  74. 95 South says:

    @Steven L. Taylor: It was a rhetorical question.

    ReplyReply
  75. Andy says:

    @Steven L. Taylor:

    It underscores the problem of the disjuncture between representativeness and the powers of the institutions.

    Ok, but that wasn’t the context of the question or my answer.

    @Just nutha ignintm cracker:

    I think that’s a really good point. I guess in my view it’s more a question of scale. Partisanship has always been a part of the process but now it seems to be the entire process.

    ReplyReply
    1
    1
  76. Skookum says:

    The coup d’etat is that Trump is not allowing election security improvements so he can claim voter fraud if he loses.

    ReplyReply

Speak Your Mind

*