The remaining hope for all Americans of good sense, more than a year into Donald J. Trump’s already interminable spin in office, was that the president and his brand of politics would turn out to be a passing aberration. That somehow, once Trump lost his reelection bid, or was impeached or otherwise run out of the White House, or plastered shut his last remaining artery with one Filet-O-Fish too many, we could put back together the sort of civil government that had prevailed for most of the last century and a half. A government that ran by at least some basic, established rules and customs. A politics in which leaders and followers on both sides still operated by some inner regulator of morality, some natural restraint on how far we could go in demonizing each other, instead of running roughshod over what we fondly remember as the democratic process.
Even before Hillary Clinton’s defeat, there were some few who imagined the democratic utopia that would arise organically from the reaction to a Trump presidency. “Some people feel that Donald Trump will bring the revolution immediately,” Susan Sarandon, that noted political sage, informed an exasperated Chris Hayes before the election. The day after Trump’s win, she posted a gorgeous photo of a flower on Twitter, with the message, “Out of the mud grows the lotus.”
Out of the mud grows the hookworm, too. But, hey, point taken.
“In some ways, Trump is one of the best things to happen to this country because look at how many people are getting off their posteriors,” Michigan’s Green Party chairwoman, Sherry Wells, told Politico last June, adding: “So part of me is giggling.”
But it’s not just the nattering naïfs of the inchoate left who believe there’s a better world a-comin’. Even veteran political analysts such as E.J. Dionne Jr., Norman J. Ornstein, and Thomas E. Mann, who combined last fall to give us a manifesto of hope called One Nation After Trump, have succumbed.
The authors, to their great credit, reject any false equivalences and place the deterioration of our political system exactly where it belongs, in the “radicalization” of the Republican Party. They call out the Trump presidency for the rough new beast it is, note how neatly the Trump campaign managed to avoid putting forward any actual policies to help those Americans the president most appealed to, and expertly trace how it is that Republicans for years have manipulated the basic structure of our democracy to ensure their continued minority rule, no matter how many elections they lose. But all of this clear-eyed analysis just makes their conclusion the farther fetched: “We believe that the popular mobilization and national soul-searching he has aroused could be the occasion for an era of democratic renewal.”
In the trauma of the Trump era, in the signs of increased Resistance, in the rushing of people into the streets, into the airports, into social media, and perhaps even the voting booths—they see cause to celebrate. A “Charter for American Working Families,” a new “GI Bill for American Workers,” a “Contract for American Social Responsibility”—all these and many more policies could emerge and make a thousand muddy lotuses bloom. Just the doing will make the Trumpian vulgarity worthwhile.
This is, in essence, the traditional liberal take on how to make enduring social change. No simplistic, Marxian happy ending, just the continuing fight, which will bring everyone together, up our game, and show us the way forward. This is no pipe dream, insists this idea, but the very way we have always advanced the nation, however slowly, decade after decade.
Forget it.
Admirable as the think-tank optimists may be, their hopes are delusional. A ruthless movement has seized the United States, the likes of which has not been seen in our time, or maybe ever. By its own measure, one of the country’s major political parties went rogue decades ago and has set about systematically disenfranchising millions of Americans, put the greater part of the population under the thumb of a permanent ruling minority, and has now slipped any remaining traces of civic decency, cynically installing a man it knows to be a ranting incompetent in the White House, just to advance its own, completely self-interested ends. And the country will recover from this by bearing down, working harder, and coming up with swell policy ideas?
Look at the ways in which the people’s business is conducted now. Executive orders, issued willy-nilly from the White House, have been used to try to wreck the national health care system, abolish environmental oversight, foil efforts to counter climate change, nullify corporate regulations, destroy labor-management forums, set immigration restrictions, conduct foreign policy, and hand vast public lands over to private investors.
Partisan ideologues, injected into the bureaucracy like so many lethal viruses, have ended net neutrality, given the green light to industry to litter our coastal waters with oil derricks, released deadly chemicals and pesticides back into the environment, announced their desire to deconstruct the nation’s public schools, and done their best to revoke clean water protections. Many vital federal posts have simply been left empty, rendering the government effectively hollowed out and unable to fulfill its sworn duties. Presidential advisers, cabinet secretaries, and department heads come and go in a Twitter-fueled tizzy, sowing confusion and institutional inertia in their wake.
The Republican Senate, which refused even to consider a legitimate Supreme Court candidate nominated with ten months still to go in the Obama administration, has now offered up federal judges who are utterly unqualified or inexperienced on the highest courts in the land, for life, after brief and perfunctory hearings. The Children’s Health Insurance Program was allowed to lapse at the end of September, held hostage for a concession on the “Dreamers” in the recent government shutdown. The health of nine million poor children, traded for the futures of 800,000 young immigrants—what moral dilemmas this government presents us with in the trading of human flesh. Public infrastructure, toward which we have been assured on many occasions the president will soon “pivot,” has been ignored even as it visibly falls apart. The most significant tax bill in decades, one that will fundamentally alter how state and local governments are funded, explode the budget deficit, transfer an enormous tax burden from the malefactors of accumulated wealth to working people, and cause the erosion of Americans’ Social Security, Medicare, and Medicaid benefits, was passed by the Congress and signed into law by Donald Trump with only a single open hearing, held eleven days after the Senate had voted, and with no more than a fleeting glimpse at its provisions.
All of these policies and more are carried out in the only way they could be: under a constant, covering clamor of demagoguery and juvenile insults, threats, incitements, inducements, attacks, bluffs, and lies, most of them originating with the president himself. This alone has drowned out any hope of civil discourse. Much worse, as the Mueller investigations of this corrupt and treasonous administration creep closer to indictments, and as exposés such as Michael Wolff’s Fire and Fury turn over this maggoty rock of a White House, Trump—openly aided and abetted by the same Republicans in the Congress who are supposed to be our watchdogs of justice—has turned to truly frightening tactics, including an attempt to exercise prior restraint to stop publication of a book the president doesn’t like, and investigations of ... the investigators. And, of course, Hillary Clinton, the candidate he defeated, as if the United States were one more flimsy banana republic, where the price of failing to become president is jail.
It would be nice to think that we will, as a nation, soon mop our sweaty brows, like Daniel Webster in the Stephen Vincent Benét story, “as a man might who’s just escaped falling into a pit in the dark,” and step back from the precipice. What a comfort, to believe that we can heal, simply get over the Trump years like some grievous wound from the past, the reign of a Joe McCarthy or a J. Edgar Hoover; painful, yes, but safely scarred over as we return to the better angels of our country.
“I have been personally and professionally, and increasingly, an American optimist,” James Fallows wrote in The Atlantic when Trump took office, adding that his many years spent working abroad and in “inland America,” as he put it, had “sharpened my appreciation for the practical ramifications of the American idea. For me this is the belief that through its cycle of struggle and renewal, the United States is in a continual process of becoming a better version of itself.”
For Fallows, as for E.J. Dionne and company, and for the Bernie left, it seems, our epoch is consistent with the country’s history of “painful but remarkable reinvention,” from which the United States can yield “a new era of prosperity, opportunity, and hope.”
The prospect—the reality—is, though, that no such thing will happen. The old republic that Fallows would champion, where we struggled and learned and changed, is dead and gone. We live in an America now where the probable future is not some antidote to Trump, from the left or even the right, brought forth in an American Spring of brilliant new ideas and renewed love of country. It is a smarter, more ruthless and effective Trump.
We have seen that America before. An America that was not in a continual process of becoming a better version of itself, but locked in bitter struggle. An America in which all politics was a fight to the death, and the side that did not win was not merely defeated but destroyed. We have forgotten that America because it existed a long time ago, but it was just as real—perhaps more so—than some endlessly reinventing nation full of striving optimists.
Welcome to Trumpland.
Of course, as Yogi Berra might have said, Trumpland isn’t even about Trump. As invaluable as he has been to the Republican Party, as Pied Piper and lightning rod, diversion and screen, the president is too self-obsessed, too ignorant, and too disinterested in the workings of government to be anything more than a rude kochleffel, the spoon endlessly stirring the pot. He is the galvanizing agent of our present chaos, not its cause. Even if he is ushered from the scene, the America we have become since he took office will not magically become lotus-land.
The debasement of the government that we are so shocked by under Trump—some of us, anyway—has been decades in the making. Each side has constructed a meticulous, partisan chronology of who started what, and when, and how. For Republicans, it usually dates to John F. Kennedy stealing the 1960 election from Nixon in Chicago, followed by the “soft coup” of Watergate, the crucifixion of Robert Bork, and the subsequent “borking” of Clarence Thomas. Democrats can trace their own lineage of victimization back to Dick Nixon’s tricksy treason in urging the South Vietnamese not to settle in Paris, the stolen Supreme Court seat of Homer Thornberry, the vast right-wing conspiracy mobilized against both Clintons, and the rent-a-mob used to steal the 2000 election for George W. Bush.
These ancient grudges may appear arcane, but as the wise man knows, after money in the bank, a grudge is the next best thing. They are now used by Congress to justify almost anything. By the time Bush the Lesser took (or seized) power in 2001, business as usual—or business as it was supposed to be conducted, according to law and custom—had already fallen apart. His ascension only shortened the half-life of the decay.
The invasions of Afghanistan and Iraq, in the wake of September 11, were not authorized by constitutional declarations of war but by open-ended fiats giving the president almost unlimited power to attack (or imprison, or torture) almost anyone anywhere in the entire world (authorities never quite relinquished by Barack Obama). Presidents before Bush had issued “signing statements” when they questioned the constitutionality of a bill they were signing into law, but “Mr. Bush ... broke all records,” as The New York Times noted in March 2009, “using signing statements to challenge about 1,200 sections of bills over his eight years in office, about twice the number challenged by all presidents combined.” Bush—and Ronald Reagan before him—transformed, through the very ubiquity with which they resorted to them, what had been a form of executive protest into a new power, a de facto line-item veto, usurping the Supreme Court’s role, and deciding for themselves which parts of a law were unconstitutional or not, which the president was bound to abide by and which he might ignore.
Then as now, Democrats howled bloody murder and swore that Congress and the Court would regain their rightful places and restore the proper, constitutional process. But in the words of Frederick Douglass, one of Donald Trump’s most esteemed Americans, “Power concedes nothing without a demand.” Republicans were soon braying that Barack Obama was making his own broken-field run past their majorities in the House and then the Senate by issuing myriad, illegal executive orders—supposedly some 900 of them in his first term alone! Worse yet, he didn’t even bother to provide an alternative interpretation of bills he signed but just made up the law as he went along. Kay Granger, one of several lunatics-at-large passing as a representative from the great state of Texas, even trumpeted the charge that Obama had in fact declared martial law and given himself unprecedented powers with Executive Order 13603.
None of this was true, of course. By the end of his first term in office, Obama had issued 147 executive orders, not 900. His total for all eight years came to 276, or 34.5 executive orders a year—not the highest but the lowest number of executive orders issued per year by any president since Grover Cleveland. And as Granger herself eventually admitted—in about as mealy-mouthed a fashion as possible—Executive Order 13603 is not a directive signing over all power to the executive but the periodic, legally required updating and reauthorization of a bill dating from the Truman administration that enables the president to coordinate resources and supplies in the case of a national emergency.
Once Republicans took back the Senate in the 114th Congress, the stone wall erected around the judiciary was all but impenetrable. Only 22 of Obama’s judicial nominees won confirmation, the lowest total since the last two years in office of Harry Truman. (Unlike Obama, Truman was at record lows of popularity.) When Trump took power on January 20, 2017, there were 112 vacant spots on the federal bench. By contrast, the Democratic-controlled 110th Congress confirmed 68 of George W. Bush’s nominees in his final two years and left only 53 vacancies. Best known among Obama’s ignored judges, of course, was Supreme Court nominee Merrick Garland, put forward for consideration after Justice Antonin Scalia’s death in February 2016. Despite Garland’s much-proclaimed moderation, Mitch McConnell declared that he would not so much as get a hearing.But the idea that Obama and the Democrats were ruling by arbitrary, extralegal means was established on the right as holy writ. (Or really, recycled; similar accusations were made when Bill Clinton reauthorized the bill, back in 1994.) It served to justify Republicans’ all-out, unprecedented attack on the president’s power to fill the executive branch—and openings on the federal bench. From 1967 to 2009, a span of more than four decades, the two parties rejected a total of 36 presidential court nominees. The same number were blocked in Obama’s first term alone.
Squelching the other party’s president’s constitutionally guaranteed authority to name new judges would not seem to be a promising formulation for any society hoping to advance its democracy under the rule of law. But, hey, what’s not to like? It’s hard enough to get something fixed in Washington even when it is broken. Once this tactic worked as well as it did, we should not have been surprised to see McConnell all but end senate hearings even for Republican bills and nominees. Justice Gorsuch sailed through his hearing, barely having to articulate a principle. Nor was there much, if any, objective vetting done on any other issues or individuals. Trump is now only the second president since Dwight D. Eisenhower—George W. Bush was the other—to forgo preliminary reviews of his judicial nominees by the American Bar Association. No wonder. When the ABA reviewed Trump’s nominees anyway, it deemed almost 8 percent of them to be “not qualified,” compared to just 0.7 percent of the 1,800 federal court nominations made from 1989 to 2016.
The predictable result was the confirmation follies of December, with Ku Klux Klan defender–paranormal investigator Brett Talley, Jeff “transgendered children are part of ‘Satan’s plan’ ” Mateer, and the woefully uninformed Matthew Petersen all exposed as so extreme or unfit they were forced to withdraw from consideration. But in the end, these rejected laughingstocks have only papered over a whole gallery of cabinet grotesques: from Scott Pruitt to Steve Mnuchin; Ben Carson to Betsy DeVos; and other “not qualified” jurists such as Leonard Steven Grasz, a believer in ignoring high-court rulings for abortion rights, former board member of a Nebraska organization that supports “conversion therapy” for gay kids (views Grasz says he has “never repudiated”), and a justice described as vengeful and “gratuitously rude” by former colleagues, who is now filling a lifetime seat on the 8th Circuit U.S. Court of Appeals.
Far from instilling any sense of circumspection or humility on the right, the failed rush to judges led only to bright new suggestions about how to grab permanent control of the federal judiciary. A much-circulated proposal in The National Review last November, by Northwestern law professor (and Federalist Society co-founder) Steven G. Calabresi and a recent law school graduate, Shams Hirji, called for Republicans to increase the number of federal judgeships by at least one-third, and preferably to triple them, a move that would in fast order make 80 percent of all federal judges GOP appointees. The plan, as laid out, was justified by the usual list of grudges, old and new, from the filibustering depredations of Senator Chuck Schumer to a 40-year-old supposed court-packing plan under Jimmy Carter.
Both of these claims are disingenuous in the extreme. Schumer has never been in charge of the Senate Democrats when they had a majority and could set the rules, and the expansion of the federal judiciary under Carter, for those who care to recall, was backed by the Republicans and barely drew a second glance when it happened. But so what? The authors of the proposal are not seriously addressing anyone to the left of Lindsey Graham anyway, merely tacking up a convenient fig leaf for the talking heads of the Murdoch media. To some extent, such tactics, real and theoretical, along with efforts such as Congress’s disastrous 2013 attempt to shut down the government in order to settle a budget dispute, are only endeavors by the legislative branch to counteract the power of the executive. (The more recent government shutdown, in January, was necessary for Republicans to adhere to their vaunted principle of stranding innocent American kids in developing countries in order to appease Tom Cotton.) Resets of authority of this kind have occurred throughout U.S. history, usually after a particularly active and emboldened presidency, or in the wake of a national crisis. (But not always—I wouldn’t call Barack Obama a particularly activist president, although the global economic crisis he inherited was real enough.) Historical examples would include the Whig reaction to that supposed Trumpian exemplar, Andrew Jackson; the uprising against Andrew Johnson after the Civil War; Congress’s refusal to let the United States join Woodrow Wilson’s League of Nations; the “Do-Nothing” 80th Congress taking revenge on Harry Truman for twelve years of being outmaneuvered by FDR; and the Democratic Congresses of the 1970s striking back at the “imperial presidencies” of LBJ and Nixon by hamstringing Ford and Carter.
Yet what the right proposes now goes well beyond these traditional acts of power-balancing and score-settling. There is another agenda. Constitutional law scholar Richard Primus described the Republican point of view in an article posted to the Harvard Law Review blog in November:
We don’t think in terms of the Democrats one day coming back into power. We are building for a world in which they never exercise power.... In other words, competition between Republicans and Democrats is no longer an iterated game in which two rival parties who see each other as legitimate contenders for political power expect to take turns exercising more and less influence within the system. It’s the last round, and it’s a fight to the finish.
Primus conceded that this approach represented a shift in “the way that the major political parties thought of each other for most of the last century and a half.” But, he added, it was in fact “the way that many Democratic-Republicans thought about Federalists in 1801 ... [and] with certain nuances, it’s also not far from the way most Republicans thought about most Democrats in the 1860s.”
Primus is right. The way democracy is conducted today may have hit a new low in the lifetime of most Americans—but not in the life of the republic. The United States has been here before. For almost the entirety of the country’s first century of existence, politics was a zero-sum game—and often a blood sport. All fights were to the death, and those parties that lost were eliminated. The Federalists ceased to exist. So did the old Whigs, after losing their battle to the death with the Democrats. The battle between the antebellum Democratic Party and the Republicans ended in the Civil War. The Democrats continued to exist in name, at least, but the national party was shattered in 1860, and for the next 70 years, it was able to win power only when Republicans were divided.
Politics were conducted like combat, too. Legislators frequently resorted to fisticuffs or dueling pistols. In one particularly memorable battle in the House of Representatives, Democratic-Republican Matthew Lyon ended up defending himself with a pair of fire tongs against Federalist Roger Griswold, who was beating him with a wooden cane. One of the inciting incidents of the Civil War itself came when Democratic Congressman Preston Brooks infamously beat Republican Senator Charles Sumner of Massachusetts senseless with another cane. Founding Father Alexander Hamilton was shot dead by Aaron Burr in the political duel that launched a thousand road companies, but if few other factional disputes had such box office value, they were a commonplace. John Swartwout, a Burr acolyte, was wounded twice in his duel with New York governor and near-president DeWitt Clinton, who finally walked away after the two men had fired five shots apiece at each other, and whose verdict on the whole matter was, “I wish it was your chief instead of you.”
The problem with politicians trying to plug each other with lead, as opposed to simply enabling mass shooters, as they prefer to do today, is that it tends to degrade democracy. To combat both dissent and Democratic-Republican strength among immigrants, Federalists under John Adams passed and enforced the 1798 Alien and Sedition acts. The laws extended the naturalization period from five years to 14, allowed “dangerous” aliens to be imprisoned and deported, and led to Democratic-Republicans being jailed and heavily fined for saying or writing almost anything against Adams and his government. (Poor Matthew Lyon got four months in jail and a $1,000 fine for committing to paper his belief that the administration was guilty of “ridiculous pomp, foolish adulation, and selfish avarice.” He hadn’t seen nothin’ yet.)
The Alien and Sedition acts helped hasten the demise of the Federalists who came up with them, but parts of this legislation remained on the books and were used to punish dissidents during World Wars I and II, and later formed the backbone and inspiration for similar national security laws during the Cold War and right down to Trump’s travel ban. Even worse, they provoked Thomas Jefferson’s Democratic-Republicans into formulating the doctrine of “nullification,” supporting the “right” of states to nullify and ignore any federal laws they believed to be unconstitutional. Nullification must have seemed like a perfectly valid response to the Federalists’ horrendous overreach at the time. Who knew it would empower every misbegotten states’ rights crusade from the Civil War through the White Citizens’ Councils to efforts by contemporary vigilantes to usurp public lands?
In other words, what seemed like a perfectly understandable response to an outrageous provocation by the other side— a response intended to restore a better, earlier America—ended up doing anything but. The ruthless tactics of the Federalists, intended to crush what they believed to be a dangerous, radical gaggle of Jeffersonians, exploded in their faces. But the Democratic-Republicans did not create a more perfect union. Instead, they came up with a doctrine of convenience that ended up having unintended—and often pernicious—consequences, which have lasted to this day. What was bad wasn’t replaced by what was good but what was bad done better.
This sort of tit for tat, of playing for all the marbles all the time, quickly becomes irreversible in a democracy. It only abated here in the United States, after nearly destroying the country, because in the years after Reconstruction two powerful new mass political movements, Populism and Progressivism, disrupted the traditional structure of the two-party system. U.S. politics was essentially made over into a four-party (or more) system, with malleable liberal and conservative wings in each major party. These tended to crosscut regions and ideologies in ways that might seem incomprehensible today. Southern white populists, for instance, often favored liberal economics, farm subsidies, suffrage for women, Prohibition—and the KKK. Nelson Rockefeller, a major Republican leader for almost two decades, was an adamant Cold Warrior; a fervent advocate of civil rights; a champion of greater spending on public education and infrastructure; and a supporter of draconian, mandatory prison sentences for drug use. Democratic Senator Henry “Scoop” Jackson backed a massive defense build-up and a hard line toward the Soviet Union—and a greater welfare state and unions.
It all made for a more fluid, and arguably better, political world. A greater comity was forced onto the system. Every bill, every appointment was no longer a fight to the death, once you knew you might need someone across the aisle tomorrow. Deeper systems of fairness—not just what the Constitution allows, or what a judge could conceivably say it allows, or what one’s ability to invoke decrepit grievances might allow—were created. The rules had to be worked out by everybody. Yes, those old political coalitions might have seemed strange. Even stranger was how the parties worked with each other. None of the people in charge—certainly not some tired old party hack like Mitch McConnell, or an operator like Chuck Schumer, should he get the chance—were looking to take the whole game, forever, driven on by the fanaticism of their donors and the embroidered histories of their followers.
The four-party system had plenty of flaws. It had its own demagogues and dirty tricks, and drew its own complaints. It certainly accommodated any number of racists, from both parties, for many years—though it’s instructive that both parties voted in large majorities to dismantle the American system of apartheid in the 1960s. It frustrated political scientists and ambitious presidents alike, precisely because it was not so clear-cut, and it complicated leadership in ways that wouldn’t happen in, say, a parliamentary system. For our federal system, in an enormous and enormously diverse country, it was ideal. It fostered debate and persuasion, and made people work—with each other—for the success of the democracy. It is not a coincidence that almost everything the country has done that was worth doing—destroying fascism around the world, ending Jim Crow, building a social welfare system, providing a refuge for immigrants, winning the Cold War, ending our constant cycles of financial crashes and depressions, inventing an incredible number of really useful and life-changing things, putting a man on the moon, etc.—happened under that system, and the United States emerged as the strongest, most prosperous, and (sometimes) the fairest and freest nation in the world.
That system, which basically prevailed for about a hundred years, from the late 1870s through the 1970s, began to crumble as our politics hardened once more along regional and ideological lines. Republicans’ pursuit of the “Southern strategy” to scoop up Wallace voters, followed by the Clintons’ largely disastrous effort to reshape the Democrats from a culturally diverse party with shared liberal economics into a center-right economic party with shared cultural values, have pushed our politics back to the winner-take-all past.
Can we expect the results to be any different after Trump than they were the last time around, if we find ourselves back in the old-school, antebellum political system? Well, what’s the popular definition of insanity again?
Politics is not, as Clausewitz would have it, war by other means—not democratic politics, anyway. Democracy is a system designed for human beings to exist in and prosper under, together and indefinitely. As in any successful means of living, it depends to some degree on mutually agreed-upon forgiveness (if not forgetting). War, on the other hand, is meant to achieve a set objective, for as long or as short a time as that takes. Its aim is to break the will of an opponent to resist, and it builds momentum—and often morale—by dwelling more and more on the perfidy of the enemy. Atrocity builds upon atrocity, propaganda replaces truth and objective analysis, “winning” surpasses any other objective, and all rules that exist are the more likely to be discarded the longer the war continues, with each blow that follows the next falling harder and more heavily. The politics-as-war we live under now escalates steadily, with each transgression inviting another. The Democrats who finally unseat Trump, or merely succeed him, will have to respond in kind to him and his ilk, no matter how superior they may feel in ethics and motivation. It’s the logic of war rather than the logic of democracy.
I don’t mean to engage in my own false equivalency. It’s doubtful that the left will ever be entertained by anything as fatuous and openly cynical as Fox News or the right’s other, presiding media clowns. But Democrats will have to become more partisan and more ruthless just to survive. Let’s say Republicans do add another 60, or 250, or 300-plus seats to the federal judiciary. Democrats will have no choice but to add even more, if they hope ever to pass a program that will not be struck down by the rabid new partisans filling our courts. For that matter, the best way for Democrats to make certain that Republicans never duplicate what they just did with Merrick Garland and Neil Gorsuch—refusing even to consider the Supreme Court nominee of a sitting president for months on end and then installing their own party’s ideologue instead, as soon as they won an election—would be to expand the Supreme Court by appointing two new justices, as soon as they have the opportunity.
This no doubt sounds incredible right now to many people still thinking about politics in the old, twentieth-century way, or to Democrats just hoping again to eke out a majority in the House. But we’re into the logic of war now. If the Democrats don’t use any future mandate to retaliate in kind, Republicans will think they can do the same thing—or worse—again. If they find a permanent judicial wall blocking them, it’s highly likely they’ll find some other dubious means to get their way. Extremity is the future, demanded by all sides.
It would be easy to say that this way madness lies, but this is the way America used to do business. As Richard Primus points out, before most of our modern federal judiciary existed, it was much easier for the party in power to manipulate the law by simply changing the number of seats on the Supreme Court, up or down. Why not? There is nothing in the Constitution that says they can’t—any more than there’s anything saying that Mitch McConnell can’t have the Senate wait until “the people have spoken” in a distant presidential election.
Without any fixed number of Supreme Court seats in the Constitution, Congress originally set it at six. The Democratic-Republicans raised it to seven after they gained full power in 1801. This was completely understandable, considering how unfairly the Federalists had tried to destroy them. When the new Republican Party gained full power in 1861—with a president who got all of 40 percent of the popular vote—Democratic Chief Justice Roger Taney, author of the appalling Dred Scott decision that many Americans blamed for starting the Civil War, tried to contain the chief executive’s ability to wage that war. Abraham Lincoln simply defied Taney, while his fellow Republicans in Congress raised the number of Supreme Court justices to ten.
Three years later, after Lincoln’s assassination, the Republicans, who still held Congress, cut the number back to seven—in the very best of causes. They were trying to thwart President Andrew Johnson, and why shouldn’t they? Johnson, after all, was a churlish, reactionary Democrat, who had only been included on President Lincoln’s national unity ticket because he was one of the most prominent Southern politicians to remain loyal to the Union. A slave-owner until Emancipation and an inveterate racist, Johnson vetoed the country’s first civil rights bill, backed “Black Codes” that would have left freedmen and women in virtual slavery, vetoed the creation of a Freedmen’s Bureau, supported letting Southern states return to the Union with governments dominated by former Confederates, and campaigned fervently against the Fourteenth Amendment. (He was also given to Trumpian levels of bad behavior and self-regard, giving a drunken, inchoate speech after being sworn in as vice president; publicly accusing prominent Republicans of plotting to assassinate him; and making a Washington’s Birthday speech that included over 200 references to ... Andrew Johnson.)
In order to stop Johnson from negating all the sacrifices of the Civil War and their every attempt to build a just, interracial society in the United States, the Radical Republicans voted not only to impeach the president—who may have avoided expulsion from office only by bribing his Senate judges—but also to eliminate three Supreme Court seats Johnson hoped to fill. They then passed the Tenure of Office Act, which constrained the power of the president to fire any “person holding civil office” who had been appointed with the advice and consent of the Senate.
This was a terrible overreach, to be sure, one impugned by no less than John F. Kennedy (or at least Ted Sorensen) in Profiles in Courage as a mere “cry for more patronage.” Imagine a Democratic Congress passing a law that preemptively forbade Trump to fire James Comey or Robert Mueller. Unjustifiable on constitutional grounds, no matter how vital the cause, right? Right?
The Johnson crisis passed, as the country moved into the four-party system (and Jim Crow: As usual, abject racism proved to be the balm that soothed most white people). The Tenure of Office Act would be repealed 20 years down the road. When a president again tried to pack the Supreme Court, even to address a terrible crisis, as Franklin Roosevelt did in 1937—he was stopped cold. His plan was rightly seen as an improper attempt to change the rules—to violate what had come to be viewed as basic political fairness.
To believe that any of today’s generation of politicians is likely to uphold such impartial standards is naïve to the point of absurdity. It helps to remember that, while Senator McConnell spoke vaguely about “letting the American people decide” who would appoint the next Supreme Court justice after the 2016 election, he did not actually promise that a Democratic nominee would get a hearing at all. John McCain, the alleged maverick, running scared of far-right primary opponent Kelli Ward, pledged on behalf of his fellow Republicans that, “we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”
Lest anyone see this as just more sour Democratic grapes, it should be remembered, as the Chicago Tribune reported from a small regiment of sources in December, that when Neil Gorsuch dared to say, in March 2017, that he found the president’s scathing attacks on the federal judiciary “disheartening” and “demoralizing,” Donald Trump reacted with an “explosion” of temper and fears that Gorsuch would not prove “loyal.”
“He’s probably going to end up being a liberal,” the great White House lummox groused in a meeting with McConnell and Speaker of the House Paul Ryan. “You never know with these guys.” Word quickly made it back to Gorsuch that Trump was incensed and threatening to withdraw his nomination and saying, according to the Tribune, “that he knew plenty of other judges who would want the job.” Our new guardian of the Constitution knew his cue and went into full grovel.
“Your address to Congress was magnificent,” Gorsuch informed the president in a handwritten letter. “And you were so kind to recognize Mrs. Scalia, remember the justice [Scalia], and mention me. My teenage daughters were cheering the TV!” He added, “The team you have assembled to assist me in the Senate is remarkable and inspiring. I see daily their love of country and our Constitution, and know it is a tribute to you and your leadership for policy is always about personnel.” Unwilling to end his effusions on even that felicitous note, Gorsuch concluded by offering, “Congratulations again on such a great start.”
Lawlessness, long tolerated, has a way of coming back on one’s own party. Democrats, ruminating upon what meat doth our Caesar feed, may be dumb, but they’re not stupid. They understand that the Gorsuch coup was another escalation, another coarsening of democracy. They get that McConnell’s silence and McCain’s pledge about not approving a Hillary nominee, period, was a clear suggestion that any Democratic president would be considered illegitimate—and that should one be elected, we can expect a four-to-eight-year Republican blockade of any Supreme Court nominees, and nominees to other vital government posts as well. Partisanship is now such that no Republican dared breathe a word of objection as Gorsuch was made to bend the knee, perhaps out of pure pique—or as a Trumpian loyalty test for any upcoming constitutional crisis.
Judging by the events of the last year—and the last 30—that crisis may soon be in the offing. The tactics formulated by the right, and eagerly adopted by Trump, have proved so successful that their opponents would be foolish to forswear them. And if Democrats still don’t happen to possess more than a knife to bring to this gunfight, they seem at least to recognize that it is a gunfight. Votes on the most important issues, such as the new tax bill, hew to strict party lines, with Democrats appearing to realize that any ranks-breaking will get them their own primary opponents and leave the party base just as infuriated as the Republican base always is with its defectors.
After all, what did Barack Obama and his advisers get from their attempts to “moderate” their stimulus package, at the nadir of the Great Recession, by carefully keeping it below $1 trillion and putting so much of it into tax cuts? Only an infamous inaugural-night supper by Republican Party leaders in the Caucus Room Brasserie, in which they pledged not so much as to entertain any and all presidential initiatives, in order to make him a failed, one-term president. Obama’s health care plan, with ideas drawn largely from the right-wing Heritage Foundation, and implemented earlier by Mitt Romney in Massachusetts, which was passed on a federal level only after the president met with Republican members of the Congress, and Democrats held 25 days of hearings on the bill, was vehemently opposed to the very end. Its passage was then followed by a form of weaponized amnesia, through which the right maintains to this day that Obamacare was a radical, left-wing idea, imposed on them without a word of debate.
Passage of the Affordable Care Act had already been held up, along with everything else they could filibuster, by Republican efforts to keep contesting the election of Al Franken to the Senate in 2008, thereby denying Democrats the “supermajority” they needed to push legislation through a Republican minority that was, true to its pledge, doing everything it could to deny the president a “win.” After that ended, Democrats chivalrously—or perhaps idiotically—waited for Scott Brown, a Republican elected in a 2010 special election to replace the late Ted Kennedy, to take his seat before holding the decisive Senate vote on the ACA. They were repaid by Republicans this year, who rushed their enormous tax bill through before Doug Jones, the Democrat elected in a special Alabama election over Roy Moore, could take his seat in the Senate and vote on it—a tactic used both to give a win to President Trump and to start the systematic dismantling of the American welfare state that the Republicans’ most fanatical backers have long demanded, right down to Medicare and Social Security.
All of these maneuvers and many more will likely be justified by various Republican apparatchiks, pointing to some Democratic perfidy from the time of Jim Wright, or Dan Rostenkowski, or possibly Bobby Baker. They would be better off looking to the future, when Democrats will no doubt come to ape their tactics and their excuses. Here in Trumpland, these exchanges will come to build their own momentum, diverting democracy to their own course, just as they did in the past.
There remain many professed “anti-Trumpers,” usually for purposes of brand and positioning, who are most interested in nitpicking the tactics of their fellow travelers. Prominent among these handwringers are such centrist-to-conservative New York Times columnists as David Brooks, who tells us that any and every piece of resistance to Trump and his party is off-key, unnuanced, and put forward by insular, lefty elites living in their own bubbles.
In his January 8 column, “The Decline of Anti-Trumpism,” Brooks tsked sadly that “the anti-Trump movement, of which I’m a proud member, seems to be getting dumber” and that it, too, now suffers from Trumpian “low-browism.” The proof offered for this lamentation was Michael Wolff’s salacious tale, as if that book had somehow been ordered up by the DNC or Indivisible. Brooks was right to point out, as he did, that “This isn’t just a struggle over a president. It’s a struggle over what rules we’re going to play by after Trump. Are we all going to descend permanently into the Trump standard of acceptable behavior?”
Just three days after this column appeared, Trump sandbagged a meeting with Republican and Democratic senators to devise a bipartisan immigration bill, by bringing in some of the worst anti-immigration bigots in the Congress and announcing before them all that he was for more immigrants from nice countries like Norway, and not from some “shithole countries.” In short order, all the president’s men were insisting that they had heard nothing, nothing at all; other Republicans were denying he had said anything bad or claiming that he had actually said “shithouse countries” (a befuddling distinction); and Trump himself was insisting, once again, that Democrats wanted to let murderers and drug dealers into the country to kill us all in our beds.
In one fell swoop, the president had inflicted on Americans a vulgarity that we had never before seen in our daily newspapers or heard on our newscasts and followed it up with his usual tsunami of lies, coerced perjury, and lethal smears. The sad truth of the matter is that it was years ago that one political movement in this country obliterated the “rules” Brooks is talking about, and its adherents enable Donald Trump to pull the country down daily to any level of unacceptable behavior that he—and they—desire. What the United States is immersed in now is not politics as usual but something much worse, with as venal, as vicious, and as openly racist a group of individuals as have ever controlled its government.