Why I Haven't Gone Back to SCOTUS Since Kavanaugh
October 30, 2019 4:30 PM   Subscribe

Lawyer and journalist Dahlia Lithwick, who writes about the courts, the Supreme Court, and the rule of law at Slate (and hosts the Amicus podcast), wrestles with the fallout from the Kavanaugh hearings and how she thinks about the Supreme Court now, a year later. Why I Haven't Gone Back to SCOTUS Since Kavanaugh.
The enduring memory, a year later, is that my 15-year-old son texted—he was watching it in school—to ask if I was “perfectly safe” in the Senate chamber. He was afraid for the judge’s mental health and my physical health. I had to patiently explain that I was in no physical danger of any kind, that there were dozens of people in the room, and that I was at the very back, with the phalanx of reporters. My son’s visceral fears don’t really matter in one sense, beyond the fact that I was forced to explain to him that the man shouting about conspiracies and pledging revenge on his detractors would sit on the court for many decades; and in that one sense, none of us, as women, was ever going to be perfectly safe again.
posted by suelac (42 comments total) 49 users marked this as a favorite
 
No matter how emphatically we kick Trump out, if we manage to do it at all, we will likely struggle for the rest of our lives to undo his tainted legacy in this instance and so many, countless others. I do appreciate her sense of betrayal, and I think this is something a lot of us struggle with, because it was a truly beloved system whose machinations generated it. Our Brutus was the ballot box.

It's difficult, but possible to imagine a future where somehow the mortal wounds to the civil service are corrected by a new president, but there is a literal lifetime of consequences ahead to the judicial appointments. I think this will continue to fly under the radar until a truly controversial decision comes out and then, I don't know. Either he surprises us all and turns out to be a reasonable moderate or he's vanguard of a movement that floors it towards the brick wall of illegitimacy.

The deep question here, I think, is how much of a pattern this really established. Does this mean that there won't be another justice appointed by a Democrat unless the stars align perfectly during the first two years of an administration who won in a wave election? Ever? The instinctive reaction is "of course not!" but given what has already transpired, I'm not so sure about that.
posted by feloniousmonk at 5:12 PM on October 30 [15 favorites]


I admire the HECK out of Dahlia Lithwick.
posted by potrzebie at 5:32 PM on October 30 [23 favorites]


I feel sick when I think about Kavanaugh on the Supreme Court, almost as sick as I feel about Trump wandering the halls of the White House. I know I should feel more cynical about these institutions, that it shouldn't bother me THAT much given what's already transpired in those halls before these men took office, but in my heart I still held some reverence that not even the presence of Clarence Thomas or Scalia or Dubya or the others could shake. But now it all feels broken and the judicial appointments make it feel like it will never be fixed again.
posted by schroedinger at 5:38 PM on October 30 [34 favorites]


poignant. insightful. heartbreaking.
some nice turns of phrase in there, e.g., ...having spent the bulk of last term lying low both doctrinally and also publicly, Kavanaugh appears to be ready to emerge now, in the form of a soaring Federalist Society butterfly....
however he may commit jurisprudence henceforth, that man's performance that one day did irreconcilable damage to the body politic; that he sits now for life as a justice of the supreme court, with all of its attendant pomps and honors, is an ongoing salting of that wound.
posted by 20 year lurk at 5:59 PM on October 30 [14 favorites]


There will be no recovery, in any currently conceivable form, from what is occurring.
posted by Jessica Savitch's Coke Spoon at 6:16 PM on October 30 [10 favorites]


I will never get over it. The Kavanaugh defenders’ latest local whisper campaign is that her father apologized to him. Well gee, as if that should convince me of anything other than the worthlessness of this provincial, backwards small town social circle within greater Washington. I hope his asterisk keeps him furious and unhappy, but he’s surrounded with coddlers at every hour of the day. Maybe he wakes up in the middle of the night and wonders, or even cares, about someone other than himself, but I doubt it.
posted by sallybrown at 6:25 PM on October 30 [7 favorites]


The deep question here, I think, is how much of a pattern this really established

There will never again be a successful Supreme Court nomination when one party holds the presidency and another holds the Senate. Those days are gone, gone, gone for the forseeable future.
posted by Automocar at 8:02 PM on October 30 [7 favorites]


This was hard to read.
His nomination was a crime against America.
posted by growabrain at 8:10 PM on October 30 [9 favorites]


Really, his nomination wasn't the crime. The crime was the public hearing and his subsequent confirmation.
posted by hippybear at 8:33 PM on October 30 [18 favorites]


His nomination was a crime against America.

Definitely a crime against women — time will tell of the damage yet to come. For all of the criticisms of Buttigieg, I have yet to hear a cogent plan from any other candidate about how to clean up America's garbage dumpster fire of a court, after what traitors like Trump and McConnell have done to it. The damage will take generations to undo, if at all.
posted by They sucked his brains out! at 9:19 PM on October 30 [2 favorites]


Kavanaugh is a horrible person and has no business being on the Supreme Court, but I'm afraid he's there to stay.
posted by kirkaracha at 9:23 PM on October 30


I will note, when Kavanaugh was nominated, nothing involved with the scandal was known about him. He wasn't nominated with a known record out of some kind of political spite. It all came out after he was nominated.

It was his confirmation after the testimony that was the crime. Lay it at the feet of McConnell, where it belongs (along with all the other judicial unqualified-and-rushed-through appointees of the past 2.5 years).

(The real crime was the denial of the nomination of Garland, the apple of sin which McConnell chomped into and led him down his current path full of corruption and desecration.)
posted by hippybear at 9:26 PM on October 30 [11 favorites]


Kavanaugh is what, finally, broke me. It's inconceivable that he sits on that bench and will likely do so for decades to come. I don't know what to do with that.
posted by Gadarene at 9:44 PM on October 30 [12 favorites]


I will note, when Kavanaugh was nominated, nothing involved with the scandal was known about him. He wasn't nominated with a known record out of some kind of political spite.

Kavanaugh's early partisan grooming was as the designated leaker for the Starr investigation. He was a piece of partisan shit long before all his dirty laundry came out.
posted by benzenedream at 11:05 PM on October 30 [27 favorites]


Also, these are not laws of physics, lifetime appointments are only so by custom. Breaking that custom would allow it to be open season on the judiciary, but it may be necessary when all assumptions of judicial independence have been violated. We may yet find out what kind of loyalty oaths Kavanaugh and the other judges have had to swear to Trump in order to get appointed.
posted by benzenedream at 11:12 PM on October 30 [9 favorites]


The deep question here, I think, is how much of a pattern this really established.

If someone profits from breaking the system, if it turns out to be beneficial to operate utterly, totally, and completely opposed to the concept of good faith, why would anyone interested in achieving their goals ever follow the broken system again?

Echoing the despondency from a lot of others here, I don’t see any way back from this. The only ones arguing in good faith, acting as if the system and the rules still matter are being ground under the heels of those who realized they could get what they wanted.

In short, McConnell’s playbook is out in the open. The cancer he unleashed in the concept of American government isn’t going away, not when it’s been so totally and completely effective. To choose altruism, to choose, when your term comes around and you’ve got the playbook to use (which is unlikely, as the tainted Supreme Court lineup is set right as gerrymandering cases are making their way up the ladder), choosing not to use it because of some personal sense of decency can only be seen as an act of total selfishness, condemning others under the rule of those who won’t play by the rules, when you could have maybe done something, if not for your code.

To me, that’s where we are. Government by the most vicious, most cunning, and damn anyone who tries to fix the system.
posted by Ghidorah at 1:35 AM on October 31 [5 favorites]


A thought occurs to me, and it’s ugly, and I apologize, but with all the talk of lifetime appointments, whose lifetime? Kavanaugh or the country? If this is how things are progressing, what are the odds that this is how the country looks in thirty or forty years? Is this level of bad faith at the highest levels sustainable?
posted by Ghidorah at 1:38 AM on October 31 [4 favorites]


A thought occurs to me, and it’s ugly, and I apologize, but with all the talk of lifetime appointments, whose lifetime? Kavanaugh or the country? If this is how things are progressing, what are the odds that this is how the country looks in thirty or forty years? Is this level of bad faith at the highest levels sustainable?

Many governments in the world have fallen into corruption and brutality far worse than what the United States is seeing now, and managed to climb back out into fairness and decency. Victory is possible, all the more so if we can learn to take other countries as an example to be followed.
posted by J.K. Seazer at 2:04 AM on October 31 [13 favorites]


There will be no recovery, in any currently conceivable form, from what is occurring.

I've said from the beginning that the only way we could actually move forward is a Truth and Reconciliation process. But we can't even manage that for the actualfax genocides that have been carried out on American soil, so it'll definitely never happen for this.
posted by soren_lorensen at 4:29 AM on October 31 [5 favorites]


All we can do is insist that Dems don't play by norms if they ever regain the Senate. No more playing by Charlie Brown rules when Lucy is constantly pulling away the football at the last second. We need our own McConnell. If Republicans whine about it, they have only themselves to blame.
posted by longdaysjourney at 5:57 AM on October 31 [8 favorites]


By all accounts, he's a pariah in most normal DC hangouts. So there's that.
posted by es_de_bah at 6:45 AM on October 31


Honestly, I think a Democratic Senate should go through and impeach every judge who was rated as "unqualified" by the ABA. It won't remove every McConnell appointment but it will get a LOT of them, and many of the worst of them, and it's a relatively "objective" standard, that we can point to the GOP advocating for "before it was radicalized by Moscow Mitch and Trump." I mean obviously the GOP will howl in outrage anyway buuuuut at least it gives a rationale and a standard.

(I also truly and honestly feel membership in the Federalist Society should be disqualifying for the federal bench; it's straight-up admitting your intention to pervert the laws of the United States in order to install a revanchist regime.)
posted by Eyebrows McGee at 7:02 AM on October 31 [29 favorites]


Automocar There will never again be a successful Supreme Court nomination when one party holds the presidency and another holds the Senate.

I think that is not correct, sadly. I'm pretty sure that if the Democrats ever get control of the Senate (ha, yeah right) and there is a Republican President they'll approve whatever Federalist Society rapist he nominates. Because the Democrats have never actually stood up to the Republicans one single time in my entire life.

Right this second Democratic Senators are saying that not only will they keep the filibuster so the Republicans can block 100% of all good legislation going forward, but they want to reinstate the 60 vote threshold for approving Presidential cabinet and judicial appointments so the Republicans can bock 100% of any future Democratic President's appointments.

The idea that the Democratic Party, assuming the laughable proposition that we ever get the Senate back, would pay back McConnell for his offenses is simply incompatible with observed Democratic behavior.

The future is clear: Republicans get to appoint Supreme Court Justices, Democrats don't. If we win the White House in 2020 there will be a four year moratorium on any Supreme Court appointments.

feloniousmonk The deep question here, I think, is how much of a pattern this really established. Does this mean that there won't be another justice appointed by a Democrat unless the stars align perfectly during the first two years of an administration who won in a wave election? Ever? The instinctive reaction is "of course not!" but given what has already transpired, I'm not so sure about that.

I think that's exactly what it means, and I think the ratchet effect is in full force. All my life the Republicans have made a gain here, a gain there, and never once been pushed back. They don't always win, but when they do they keep their win. And when we win our gains are always iffy and are frequently taken away later.

There's only one way a game that goes 'what's mine is mine, what's yours is up for negotiation' goes and that's total loss for us.

Kavanaugh is just the beginning.

Assume we really luck out and in 2020 a Democrat wins the Presidency. Do you think McConnell will let that Democrat replace Ginsburg and Breyer? Even with milquetoast center right people like Garland? I don't. And, as noted earlier, there's a fifth column of "Democrats" in the Senate who are even now talking about reinstating all the old 60 vote rules if by some miracle the Democrats win the Senate. Just specifically so Mitch can yet again hold open Supreme Court seats for the next Republican President.

Fixing this will take truly radical action that breaks with past tradition. We'd need to pack the Court, and the lower courts as well. We'd need to aggressively work to impeach Kavanaugh, and Thomas while we're at it.

I don't think the majority of the Democratic Party is ready yet to do what is necessary to end the ratchet effect where all Republican gains are permanent while all Democratic gains are ephemeral.

And I know the nation as a whole isn't. Sure, Trump lost the popular vote but only by three million. Remarkably close to 50% of our fellow Americans are eager white supremacy supporters, and I don't know what if anything can change that.

Kavanaugh is a symptom. He's a big symptom, but the problem isn't Kavanaugh, or Trump, or even McConnell. The problem is the nearly 50% of our fellow Americans who support those people. I think we talk about the symptomatic public figures because talking about the root problem that close to 50% of America is hateful bigots who want to hurt us is too painful to think about very often.

The Supreme Court is now all but fully owned by them. We're reduced to the forlorn hope that John Roberts will somehow cast a vote against the Republican Party. The re-test of US v Nixon is coming, and there's unwarranted optimism that the Supremes will uphold it and order that Trump turn evidence over to the House.

Mass protests, like we saw in Egypt, work but only when a solid majority supports that protest. In America we're nowhere near that point, and as long as Republicans can keep delivering white supremacy I don't know how we can get to that point.
posted by sotonohito at 7:20 AM on October 31 [8 favorites]


Also, these are not laws of physics, lifetime appointments are only so by custom.
No.

Article III says "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour..."

Black-letter Constitutional law is the next best thing to physics in this case. The only way to get rid of them is impeachment.

Unlike some commentors I can see some procedural routes to undo the damage to the Federal judiciary, but they involve Democrats doing things that Democrats won't do, at least not anytime soon.

There's no Constitutional requirement that impeachment be the kind of drawn-out, apocalyptic process that it typically has been. Kavanaugh would be a good candidate for impeachment, for example. He certainly perjured himself during his confirmation hearings, and his finances in general would seem to be a target-rich environment for financial crimes investigation. Nor is there any Constitutional reason why there must be separate, drawn-out proceedings for each person impeached: if Congress wants to get rid of them in batches, Congress is perfectly free to do that.

There is the matter of needing 2/3 of the Senate to convict, though, and the electoral map says that there is zero possibility of a 67-seat D majority in the next Senate, even if every single seat up for election is won by a D. And a dozen of the 23 R seats that are up for election are "safe R," such that even a repeat of the Blue Wave of last year would not suffice to dislodge them. In any event, you don't get to be US Senator by being a radical, and the D side would still include many Senators who would be unwilling to do something so drastically non-traditional as impeach judges by the dozen.

It does appear that the 2/3 rule for convicting on articles of impeachment is a Senate rule, and theoretically replaceable by 51 Senators willing to upset the applecart, if only there were a Majority Leader willing to let them vote on it. Chuck Schumer does not seem to be that kind of Leader.

With respect to the Supreme Court in particular, the size of the Court is not specified by the Constitution: it is determined legislatively, and has been both larger and smaller in the past than it is today. The obstacles to changing the Court to a membership of say 27 and appointing 18 40-something firebrand SJW liberals so that the R appointments of recent decades are reduced from a majority to an irrelevant rump are political, not legal.

It will be argued that the R response would be to do their own court-packing in response the next time they got a chance, but this presumes there would ever be another R Congressional majority. In the fantasy I am describing, the D side uses its supermajority on the Court to impose election rules to put an end to the kind of R cheating that allows them to elect national officers in anything like the numbers they've been able to for the last 30 years.

In summary, there are procedural ways for Ds to repair the R damage to the judiciary without requiring Constitutional changes, but when I survey the roster of actual existing D officers and candidates, I cannot picture them doing what they'd need to do.
posted by Aardvark Cheeselog at 7:31 AM on October 31 [5 favorites]


@sotonohito:

I mostly agree, but take exception to this:
The problem is the nearly 50% of our fellow Americans who support those people. I think we talk about the symptomatic public figures because talking about the root problem that close to 50% of America is hateful bigots who want to hurt us is too painful to think about very often.
I too woke up Nov 9 2016 feeling as though someone I loved had died (or maybe worse, been revealed to have been an impostor all along). But I believe it is not as bad as you say.

I think the actual fraction of deplorables is closer to 30%, and on the low side of that. What motivates the others to keep voting R as the Rs keep immiserating them is something of a mystery to me but I suspect it has to do with ignorance and delusion: people like us are weirdos, incapable of putting ourselves in the heads of people who don't care much about politics.

It would help if the D side had some selling points better than "Vote for us! We're not as bad as the Republicans!"
posted by Aardvark Cheeselog at 7:46 AM on October 31 [2 favorites]


> It would help if the D side had some selling points better than "Vote for us! We're not as bad as the Republicans!"

I don't think this was your intent, but this reads like a parody of what a 2016 Jill Stein voter might say. The idea that "the D side" doesn't have an affirmative set of policy positions to attract voters and is only interested in repeatedly saying "we're not as bad as Republicans" has no basis in reality. Many Democratic contenders have explicit plans to add more justices as an explicit means of restoring balance to the Court. POTUS45's antics do have a tendency to suck up all of the oxygen in the room and distract the press from covering other things Democrats are saying and doing, but that doesn't mean they aren't saying and doing them.
posted by tonycpsu at 8:17 AM on October 31 [18 favorites]


Two out of the nine sitting justices have credibly been accused of sexual impropriety against women. They will be deciding fundamental questions about women’s liberty and autonomy, having both vowed to get even for what they were “put through” when we tried to assess whether they were worthy of the privilege and honor of a seat on the highest court in the country.
I'm old enough to have watched the Clarence Thomas confirmation hearing live, as well as Brett Kavanaugh's.

I recall the white-hot rage I felt when Thomas had the gall to claim he was the victim of a "lynching" and I never, ever would have believed I'd experience almost the exact same rage for almost the exact same reasons while watching a Supreme Court nominee confirmation hearing twenty-seven years later. The aggrieved, self-righteous, angry bellowing. The nauseating solicitude of senators to the crocodile tears of a fellow man. The sneering victim-blaming. Almost thirty years apart, it's the same putrid miasma of moral rot; and both times -- both times -- I've never wanted anything more than to punch someone's face through the screen of my television.

It's incomprehensible that so little has changed.
posted by Ivan Fyodorovich at 9:06 AM on October 31 [15 favorites]


By all accounts, he's a pariah in most normal DC hangouts.

He’s a pariah in public spaces, but treated with sympathy and kid gloves in the places he spends 95% of his free time (clubs, private schools, dinner parties).

I’d really like another Justice like Souter, a loner whose favorite pastime is hanging out in his cabin in the woods and who had no interest in the fame and power side of things. He’s probably eating his daily apple and chopping firewood right now. That’s a judge you can’t buy.
posted by sallybrown at 9:17 AM on October 31 [8 favorites]


@ sotonohito: Kavanaugh is a symptom. He's a big symptom, but the problem isn't Kavanaugh, or Trump, or even McConnell. The problem is the nearly 50% of our fellow Americans who support those people. I think we talk about the symptomatic public figures because talking about the root problem that close to 50% of America is hateful bigots who want to hurt us is too painful to think about very often.


This is how I feel. As an immigrant; I have painfully disengaged myself from the politics of the country. I have realized that close to half the country either actively dislikes/hates people like me OR is okay to support people that do if it suits their bottom line. That was a jarring realization.

The stacking of the judiciary that is going on presently has been in the plan since at least the 1970's, right? Many of the liberal advances that were made after 1950 came from the courts. The conservatives decided from then on to stack the judiciary. There is a reason why they insist on nominating very young people to the courts, especially at the District level. They are not looking for competence but ideology. And longevity on the bench, as these are lifetime appointments. When you combine this with the ALEC for law writing at the state level, the takeover of state legislatures with the RED STATE project etc etc; this is a long term affair. Long term affair that is funded very well by patient billionaires. Underfunded progressive movements stand NO chance against this.
posted by indianbadger1 at 9:38 AM on October 31 [11 favorites]


The stacking of the judiciary that is going on presently has been in the plan since at least the 1970's, right? Many of the liberal advances that were made after 1950 came from the courts. The conservatives decided from then on to stack the judiciary.

Yes, and not just to stack the judiciary but to organize through groups like the Federalist Society to determine and test out legal arguments for the social changes they seek and then establish message discipline for them. Which is how they’ve been winning ideological legal battles and transforming big swaths of the law even with the smaller presence on the bench that strict constructionists and the like have had until this term. A single federal judge with the writing talents and message discipline of Posner can win over countless others.

But I don’t know that underfunded progressive movements stand no chance—I think the broad middle got very used to depending on the federal courts to keep an eye on social change and it’s made a lot of people who have a medium amount of concern lazy in their approach to political involvement. The most marginalized (inmates, the mentally ill, small religions) have remained out in the cold throughout, but the courts have recognized the rights of larger marginalized groups at the same (slow) pace as the broad middle has, which left a big chunk of well-meaning-but-comfortable people feeling like they didn’t need to do much work and everything was progressing apace. Maybe the silver lining here is a wake up call for people to get involved in their local and state politics and focus some effort on other branches—and the progressive movements that have been organizing hard in the wake of Trump are poised to get some of that focus, hopefully.
posted by sallybrown at 10:09 AM on October 31 [7 favorites]


My mother is a naturalized immigrant and former refugee who became a citizen in 1968 and she has gone the disengaged route (my father, also an immigrant and naturalized citizen, is now a right-wing nutcase, thanks to Rush and the right-wing grievance machine). I confess I shake my head at her attitude (my father is a lost cause) given the Republican party's and this Administration's interest in revoking the citizenship of previously naturalized immigrants and in overturning the birthright citizenship that applies to her children. Just like the Nazi Germany that she was born in, the Republicans have started to remove the legal protections from those hated by our society. They won't stop there though, if they keep power. You can sit back and watch the storm roll in if you're my mother, or you can do everything you can to prepare yourselves and your community for the fight we are in.

Re the Trump/GOP diehards, I'd peg it at a minimum of 35% of the country, which is the lowest approval number that Trump has never fallen under at this point. Tack on another 8 to 10% for conservatives who hold their noses but will pull the lever for Trump and the GOP because they like what they get (judges, tax cuts).
posted by longdaysjourney at 10:53 AM on October 31 [3 favorites]


Just like the Nazi Germany that she was born in, the Republicans have started to remove the legal protections from those hated by our society. They won't stop there though, if they keep power. You can sit back and watch the storm roll in if you're my mother, or you can do everything you can to prepare yourselves and your community for the fight we are in.

Yep. Fascists strip rights on a last in, first out basis as they thin the top of the pyramid. They're already winding back trans rights. Gay rights next. Then immigrants. Then women.
posted by Your Childhood Pet Rock at 11:09 AM on October 31 [2 favorites]


This is a good piece. I knew Lithwick in college and was always amazed by her --and I don't think there's anyone out there among SC journalists as good as she was / is. (she's also the writer of one of my favorite personality breakdowns). I'm sorry she isn't able to do the job anymore. But I respect the hell out of her reasons.
posted by Mchelly at 11:12 AM on October 31 [2 favorites]


@ longdaysjourney : You can sit back and watch the storm roll in if you're my mother, or you can do everything you can to prepare yourselves and your community for the fight we are in.

The problem is I look very clearly a foreigner. My saying anything is not changing anyone's mind. People who need convincing are not going to be convinced by listening to people who look and sound like me.
posted by indianbadger1 at 12:13 PM on October 31 [2 favorites]


The Supreme Court has almost *always* been a hideous place. There have been 114 white male justices and less than a handful of women or people of color. The Court rolled back Reconstruction, almost killed the New Deal, accepted mass incarceration and the new Jim Crow... it's an oligarchic institution captured by a tiny white male rich cohort. Thomas and Kavanaugh are certainly not the first assaulters on the Court.

So, that's all terrible. But I think we have an opportunity here because the current Court is gratingly horrifyingly out-of-step with the country: the increasing gap between the Court and the rest of the country could, with sufficient work, finally wind up de-legitimizing the Court, and creating a major push towards actual popular rule. Former Stanford Law Dean Larry Kramer has argued persuasively that the Court has no business being as powerful as it is (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1617341) and Brian Fallon's Demand Justice (https://demandjustice.org/) is doing a nice job of popularizing these ideas.
posted by SandCounty at 1:03 PM on October 31 [5 favorites]


@tonycpsu:
I don't think this was your intent, but this reads like a parody of what a 2016 Jill Stein voter might say.
<screed>
Why do you think there were any Jill Stein voters in 2016?1 I mean, yes, it's a Good Thing that we now have D Prez candidates talking MFA and college loan forgiveness and like that, but for how long have you been watching American politics? Democrats went into a defensive crouch after 1980 and only started to stand up straight 28 years later. And they're still not exactly standing tall, with even Warren finding it necessary to insist that she's "capitalist to [her] bones" (I think that's exactly what she said). What we really need is candidates who will say "You know, this capitalism thing isn't working out quite so well for most of us. It's almost like capitalism only works for most of us when the capitalists are a bit scared and not allowed to get away with anything they can dream up." Or if you think that's too strong, how about "Nobody earns $300 million a year, and there are too many people who are getting paid that much." Or even people willing to stand next to a chart showing the time series of GDP, the median income of the lowest-earning 80% , and the median income of the top 0.1% over the last 40 years, point at the difference, and say "How's that trickle-down working out for you?"

And yes, I was paying attention to what H was saying in the '16 campaign, and I was like "yeah, she's finally starting to get it." Because when you compare Clinton '08 to Clinton '16 there was some obvious development there. But it is a damning indictment of Democratic politics that the relatively weak sauce Clinton was serving even in '16 was scarily radical to a lot of mainstream Dems2.

I want Dem candidates to say "Taft-Hartley was a betrayal of workers and needs to be repealed." "We need Federal financing of elections." "We need to stop treating corporations as if they were people." Hell, I'd settle for "We need to return to the kind of policies that gave us prosperity between 1945 and 1970, only this time we don't leave out the brown people." You know, taxes on super-high incomes that are so big that people just don't ask for more than about $50 million a year, because any more than that would only go to taxes.

Instead, we get proposals for refundable tax credits to pay for private health insurance.

Look, I realize that 98% of the electorate probably have no idea what Taft-Hartley even is but that's mostly because Democrats have refused to make an issue out of it. I guarantee that it were a perennial Democratic platform plank to restore worker rights, it'd have a higher profile as part of why life sucks so bad for so many. It's a good example of what @sotonohito was saying upthread, about how Republicans get to keep their wins but Democrats don't. That happens because Democrats shrug and say "win some, lose some" and go on their way, without recognizing the importance of winning some back after a loss.

So, no, not a Stein voter, but I can kind of see why a low-information voter might be tempted. Because "refundable tax credits" really is pretty much "We're not as bad as the Republicans." And to repeat, yes, things are looking up a bit these days, but Democrats still have a lot of catching up to do to shed that "not as bad" image. Because they earned it for a long, long time. Also too, I limited myself to mentioning labor rights and taxes on the rich here, but where is the full-throated fury by Democratic candidates against the gutting of the Voting Rights Act? Where is the condemnation of pandering to religious extremists, telling them they don't have to obey that law if it offends their delicate sensibilities? Is it because Democrats are too afraid of being seen as wanting to rock the boat? I think it is, but the boat's gonna sink pretty soon if there's not some changes to how it's kept up.
</screed>

I know, there are reasons for all of this. Can't risk offending the big donors, media has lost its independence from rich owners (or said rich owners no longer have any interest in journalism worthy of the name) and Republicans have been playing the refs so hard for so long that Democrats can't get a fair shake. But they've tried the "not as bad" tack for the last 40 years and it's not working so very well. Maybe they need to try addressing some of those reasons.

A big part of the problem in more recent years, I suspect, has to do with how the parties have become ideologically sorted, and the Republicans having allowed themselves to be taken over by the nutcase fringe of their ideology. Which has (I suspect) driven some people who really ought to be members of a conservative party into the Democrats, who are stuck with a crippling Blue Dog faction as a result.

1Yes, I realize that 20 years of Clinton Derangement Syndrome in the MSM had a lot to do with that, but still.
2I was actually kind of stoked when she called for ending the Hyde Amendment, so there's that.
posted by Aardvark Cheeselog at 1:21 PM on October 31 [5 favorites]




Article III says "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour..."

Black-letter Constitutional law is the next best thing to physics in this case. The only way to get rid of them is impeachment.


I agree with you that current Dems are unlikely to do any of the things that will result in getting rid of judges. I would like to think the emoluments clause is obeyed like physics too, but it seems to be completely disregarded in our current environment. What else will be completely disregarded by the Federalist Trump judges? Trump doesn't have to start firing judges since he's already got the supreme court packed, but I'm sure there's already been attempts to get rid of liberal judges via skullduggery.
posted by benzenedream at 2:29 PM on October 31


@tonycpsu

Many links

Like I said, things are looking up! But that doesn't change the past. If the Dems take the trifecta, and are then willing to do what it takes to make sure it's not the last election that might mean something, and after that are willing to keep up this kind of rhetoric, there's hope!
posted by Aardvark Cheeselog at 3:37 PM on October 31


@benzenedream:
I would like to think the emoluments clause is obeyed like physics too, but it seems to be completely disregarded in our current environment.
There's a procedural difference. Violating the emoluments clause and getting away with it merely requires that some people do nothing rather than something. Shitcanning a bunch of people with lifetime tenure requires action that will be opposed.
posted by Aardvark Cheeselog at 3:44 PM on October 31 [1 favorite]


The problem is I look very clearly a foreigner. My saying anything is not changing anyone's mind. People who need convincing are not going to be convinced by listening to people who look and sound like me.

The same is true for my parents and their children, but my parents are both immigrant physicians and beloved in the small community that they served before retirement. My mother is still getting former patients and parents of patients (she was a pediatrician) coming up to her telling her how much they loved her and appreciated her work 20 years after she retired. She could make a difference in people's attitudes in the majority white and Trump supporting area in which she lives but she chooses silence. It's very, very hard for me to understand this.

(Edit: my comments are not directed at you and apologies if they are coming off that way. I'm just immensely frustrated with my mom's complacency and unwillingness to do even little things to get Trump voters thinking a bit about the person they support and his policies towards refugees and immigrants.)
posted by longdaysjourney at 5:13 AM on November 1


@longdaysjourney: my comments are not directed at you and apologies if they are coming off that way.

Hey, thanks for saying this. I really thought that you were using your mom's reticence as an example to exhort people like me to not disengage. But reading further, I see where you are coming from. She has an avenue to engage but is refusing to. I can sense frustration in you for that.

I do my bit. For Example, I volunteer at the Local Aquarium. I sometimes see people wearing MAGA Hats, Confederate Flag Waistcoats etc visiting. I try to emphasize my foreignness in my interactions with them, to let them know not all of us are "lazy, welfare cheats". But that does not take away from the fact that this kind of thing is not noticed by the Aquarium Staff. We get regular seminars on guest engagement with various kinds of visitors, (Kids of different ages, people with disabilities etc.). But not once has anyone wondered on how I, and people like me, are supposed to interact with people who wear their bigotry for all to see.
posted by indianbadger1 at 2:21 PM on November 1 [2 favorites]


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