Friday, September 16, 2016
Will the United States survive the 2016 election (continuing)
UPDATE: I think it's probably correct, as suggested by some of the discussants, that it may be excessive to suggest that tall of the "majority" of those who did not vote for Clinton--i.e., the sum of Trump, Johnson, and Stein voters--will regard her as "illegitimate." (I'm not willing, incidentally, to make the same concession with regard to those who do not vote for Trump: i.e., I do suspect that a majority of the country will regard a Trump presidency as illegitimate.) But I'm not sure that's such a major concession. The key question is what percentage of rabid Trump supporters--whether or not we wish to label them "deplorable" (more on that below)--will regard her as illegitimate. And I continue to believe that the number/percentage will be high enough to threaten basic political stability, especially given the threats.hints of violence encouraged by Governor Biven and the sociopathic candidate for the presidency. After all, there's no reason at all to believe that a "majority" of those living in the colonies believed that King George III was an illegitimate tyrant even in 1776, nor a "majority" who supported the Bolsheviks over the Mensheviks, and we know that Hitler did not receive the support of a majority of Germans when he gained control of the German government in 1933. Great events (or catastrophes) often, perhaps usually, take place because of intense minorities who are "mad as hell and aren't going to take it any more," i.e, those whipped up by the sociopath. The irony/paradox is that the majority who would properly regard a Trump presidency as illegitimate are not inclined to engage in violence. That may or may not be thought to be a compliment. It is the right, over the past quarter century, that has blown up federal buildings, occupied federal lands, and organized "militias" to overthrow what they deem to be an oppressive state. The American left, presuming it really exists as an organized entity, is by and large satisfied with engaging in dramatic marches and expressions of woe rather than genuine political organization. And, of course, unlike the Right, some of whose members, including Texas Governor Greg Abbott, are willing to connect the dots and suggest significant constitutional reform (from their perspective), the so-called left continues to engage in Constitution-worship and resolute unwillingness to connect any dots (see, e.g., the Sanders campaign and its ultimate cult of personality).
"So this means, I suggest that a majority of the country, on November 9, whatever the result, is likely to believe that the next President of the United States is illegitimate."
Why? The fact one candidate (for your sanity, assume Clinton) will only get a plurality doesn't mean "a majority" thinks the winner is "illegitimate." I'm sure if one of the top candidates win some portion of the electorate will feel that way. But, don't think it will be a majority.
Take the easiest case. Clinton wins by let's say something akin to the popular vote of her husband in 1992. Clinton votes will obviously accept her legitimacy. I question if many Gary Johnson voters (likely the majority of the third party vote) would. Do you see any evidence Johnson and Weld (who is a friend of the Clintons) actually would find Clinton's election illegitimate? Their voters would likely follow suit. Not sure who among the rest would either.
Wouldn't this be likely to be a majority? And, not all Trump voters would either. It isn't all or nothing for many of them. Even some Republican pols deep down respect Clinton, but can't for political reasons say that. Surely, some troubling portion of the electorate will think this -- we saw it with Clinton and Obama (less so Bush) -- but don't see the evidence of a majority.
The faithless elector thing doesn't seem too helpful if Clinton wins anyway -- we would know the popular vote. That would only be symbolic. Something extreme like that would only be a question if she won in the 260s and a third party won the balance. One tie scenario, e.g, was raised. Anyway, I don't think we really should be worrying about that now.
I do not have a "relatively complacent view of the election" except to the extent that -- tbh -- I think Clinton will win. I am deeply troubled by Trump. But, "half the country" won't find the winner illegitimate from what I can tell. Perhaps, that is part of the problem -- not the "illegitimate" part as such, but that so many are at least minimally accepting of Trump. And, some think that about Clinton, as we seen here. But, it's useful to have perspective on numbers there.
"I want to part of a country that would have him as our president." The typo here is crucial, as it obscures what Sandy intends as a a very bold statement. "I want no part of ..."?
Comments on Sandy's prior post were made subject to "moderation" after 52 comments over only a few days, sort of unusual for a post by Sandy. One morning in checking thread comments that I had not previously read, I came up with a comment responding to vile comments made by one of the usual suspects including an attack on Jack Balkin apparently based upon a post by Jack that this usual suspect claimed as possibly violative by Jack of a federal statute and violating Jack's oath as an attorney regarding the Constitution. But my comment did not appear. Rather, for the first time there appeared a sentence about "moderation" of comments. Had I been aware of such "moderation" in advance, I might have restructured my comment with more specificity. In my view the sentence regarding "moderation" should have appeared BEFORE I typed my comment. Perhaps others had also offered comments on this usual suspect's comments at the end of the thread and the "moderation" policy (whatever its standards) did not allow their being posted as well. Sandy's earlier post will enter the archives of this Blog and "students" of legal blogs in later years might wonder why there were no comments following those vile comments of this usual suspect. Jack of course doesn't need me to defend him. But Jack has been charged by this usual suspect with possibly violating a federal statute and his oath as an attorney regarding the Constitution. I think an explanation is in order regarding this "moderation" policy.
Despair does you no good... Unless as an excuse to break out a bottle.
It could be we are in a dynamic similar to the one surrounding Supreme Court appointments. The Democrats were not going to approve Bork, the guy that said Yes, Sir in the Saturday Night Massacre. And ever since then the Court contests have become fairly steadily more acrimonious. Partisan polarity gets worse, and there is no punishment for taking the tactics one step further. Look at the last several elections-- hard to think of a case of declining legitimacy-upon-election more serious than Obama. Again, moving fairly steadily toward more acrimonious view of the other side... With no end in sight.
But, take heart, democracy was not supposed to make us all happy. It is supposed to limit the power of state officials, a bit, by making them periodically accountable to regular slobs like me. And, democracy is supposed to take away the revolution card. It has mostly worked here. Not everywhere.
I fight despair with fantasy. My current: After Clinton is elected she nominates B.H. Obama to a vacant spot on the Court, and the decisive vote in the Senate is cast by the new Vice President.... It won't do much for legitimacy, but I will sleep a lot better.
I echo what Joe said. I would note that many Democrats regarded George W. Bush as an illegitimate President and a pretty bad one but the country and its political system did fine. In the absence of a situation similar to Florida 2000, I think the overwhelming majority of Americans will believe that the winner of a majority of the electoral college is legitimately President.
Also, the consequences of a coup are secession are likely far worse than the consequences of a Trump Presidency, which is why these ideas are properly viewed as not even laughably wrong.
Per Shag's comment, I noticed "moderation" kicked in recent weeks. I'm not sure when it does exactly. At Dorf on Law, it is in three days or so. Think it is a time based thing here too.
In response to Sid Olufs at 10:28 AM, I think that a prerequisite for being on the U.S. Supreme Court should be respect for the Constitution. Obama is violating the Constitution in keeping people imprisoned at Guantanamo without due process, maintaining the no-fly list without due process, assassinating suspected terrorists without due process, and starting wars without congressional approval. In addition, at least during his first term, he "rendered" people to foreign countries to be tortured.
Putting those constitutional violations aside, do we want a justice who would be biased in favor of deferring to the executive in, for example, not permitting lawsuits against torturers? Also, I'd prefer someone more liberal than Obama.
All that is going on here is a bad case of projection. You have, personally, lost the capacity to accept that other parties besides your own are legitimate, and entitled to prevail if enough people support them. Since this is a manifestly unreasonable position, you need to think it is near universal.
The Libertarians and Greens aren't going to think their losses illegitimate, because they know that the best they can hope for is a strong third place. Barring obvious and massive ballot fraud, most Republicans will accept losing as legitimate, because Trump has looked like a long shot from the start, and Obama is probably more ideologically extreme than Hillary. (Though less criminal.)
Really, the only people who will regard losing as presumptively illegitimate are your compatriots, the Democratis. Look at yourself: You've been rationalizing denying the legitimacy of a defeat for months. I wouldn't be shocked if Trump were the target even now of multiple assassination plots. What else can you expect to come of declaring him the reincarnation of Hitler?
Calm down. Take a deep breath. Chill out. The American people are entitled to elect somebody you don't like. Do try to recall you once thought that.
Both candidates should be asked at the debates about their willingness to accept the results of the election. This is an issue that needs to be addressed before the election. Certainly Trump's comments that the only way he can lose Pennsylvania (and maybe the whole election) is if the election is "rigged" are not very helpful.
That said, I don't think this is 1860. There is no great legal and moral issue like slavery dividing the country. While Sandy Levinson is clearly being provocative, I don't think he is being realistic. Assuming that the losing side will not accept the results seems rather fanciful. Sure there will be some who will not accept the results, but the numbers will be minimal. Maybe greater than 2000, but I don't believe carping by these folks will really amount to much, even if the carping is very loud.
Perhaps there should be an effort among leading legal scholars of the left and right, as well as former Solicitors General from both Republican and Democratic Administrations to come together before election day to re-emphasize their commitment to the election process and the orderly transfer of power to the new Administration.
I really think efforts need to be made to calm the waters not roil them.
That would be a good idea. Sandy has decided, as you can see above, that the legitimacy of an electoral outcome is a function of the merits of the candidates.
He has to get over that. In a democracy, legitimacy is purely procedural. Hitler, Stalin, or even the AntiChrist himself, could run for President. And if they met the formal requirements for the office, and a fair count of the freely cast votes showed them the winner, they would be legitimate.
We disagree. The legitimacy of the outcome can not hinge on whether we like it. That's what you've begun believing, Sandy. But no democracy could function on such a basis.
I don't expect any Constitutional crisis to come from the election results. I do expect either winner to be a failed President. Trump will fail because he's a buffoon and because his policies (or those of Paul Ryan) would cause immediate, severe harm to the country. Hillary will fail because the Rs look likely to keep both Houses and will block needed policies. So while I expect another phase of damage to the nation*, I don't expect revolution.
*The damage began with Reagan. Bill Clinton restored a lot, and the collapse of the Soviet Union masked a lot of the problems. W then did so much damage that Obama hasn't been able to fix it all yet and of course the Rs in Congress are nihilists; another cycle will require an FDR-like victory for full recovery, and I don't expect that.
"I do suspect that a majority of the country will regard a Trump presidency as illegitimate."
This is a hard sell. The Trump voters will accept him & that leaves only a sliver (10% or less) of those left. Those not voting probably break down somewhat similarly. As to "acceptable," that's a bit easier, but again, probably a sliver will learn to live with the result as humans tend to do with horrible results. Again, maybe this is bad, but that is probably what will happen. We saw this other places.
"high enough to threaten basic political stability"
This is a valid concern & Mark Field, for one, also expressed concern about it. I'm not sure how serious it will be, especially since I think many will be relieved Trump didn't win on the Republican side. Plus, to think big here, I'm not sure how much "the Constitution" is to be blamed for all of this. It's a societal thing, if one probably aided and abetted by certain constitutional rules and norms.
Note too that, to the extent we are supposed to latch on to a comment among thousands, Clinton said by a gross rough estimate that half of his supporters are in certain deplorable categories. Not all of his supporters. And, this doesn't make each person "deplorable" -- during the "Greatest Generation," the average person had bigoted views on race, sex, sexual orientation etc.
This didn't make them horrible people, full stop. But, if they were "supporters" of let's say a Bilbo, and were so because of his racism, it was valid to say so. Granted politically that might be non-PC & their opposition to trigger warnings etc. aside, we are dealing with very sensitive people who don't want their feelings hurt.
Thus, we have trolling of the sort where we get pictures of soldiers or children, as if she said each supporter was deplorable. Not that (as Charles Blow noted in a recent column) people who are honored for various reasons lack the ability to support despicable things. Sexual attacks in the military point this out, e.g.
I'm not sure how serious the Obama as justice thing is but don't think that is really his skill-set though a politician in that role like days of old might be a good idea. Still, not sure how Obama is the best choice for the bulk of the docket, which are boring statutory cases and so forth.
I think Garland was a reasonable choice for the Scalia seat all things considered but if Republicans don't want him, fine. They had their chance. If the Dems win the Senate, a younger and somewhat more liberal option such as Jane Kelly or (to think big) someone like Judge Ketanji Brown Jackson. My dream candidate might be Pamela Karlan. Ha ha to that.
Ok, regarding the update.
1) You have basically conceded that the "anybody I don't like winning is illegitimate!" sentiment is mostly on your side. Good for you. Now if you can only accept that it is... Deplorable.
2) It is, at this point, rather unlikely that Trump will be elected while the Republicans lose the Senate. It was being projected as a toss-up back when Trump was at his nadir. If he continues to gain ground and win, Republican prospects should gain with him. All he really needs is a tie, with Pence to break it, and if he sticks to nominees like those he has proposed so far, the GOP will be on his side.
3) Yes, if he makes a wrong move he will be impeached and removed. This is a point in Trump's favor. Electing a President neither party is inclined to shield is our best chance of abolishing the imperial Presidency. And fundamentally incompatible with the "Trump will be a fascist dictator " theme, you should realize.
Sandy: I am interested only in whether you disagree with the basic thesis that A CRITICAL MASS OF the country, on November 9, will not only be disappointed in the outcome--which is, relatively speaking, par for the course in close elections--but, rather, find the ostensible winner to be "unacceptable" and, indeed, "illegitimate." If I am wrong, please explain why. I would feel much better.
I am absolutely certain that a plurality to majority of the nation will find either Clinton or Trump to be "unacceptable" if elected. One only needs to look at the major party candidates' disapproval numbers in every single poll over the past year. To anyone who is not a hopeless partisan (look hard in the mirror, Sandy), this without a doubt the worst pair of candidates produced by the two party system in the history of the Republic.
To my mind, "illegitimate" means that a candidate with a minority of the popular and electoral vote was elected. To get to illegitimate, we would have to have an outcome analogous to the 1824 "corrupt bargain." Think something along the lines of Clinton getting a plurality of the popular and electoral vote because a third party took the electoral votes in significant state, then a GOP House chooses their candidate Trump to be president. There is no evidence that this outcome is remotely possible because none of the third party candidates are close to taking any state.
A necessary constitutional reform on which we may both agree is that a candidate for elected office should get a majority of the vote. I have advocated an amendment to the Constitution requiring a mandatory runoff election when no one gets a majority of the popular vote and, In the case of the President, a majority of both the popular and electoral vote.
The fact a plurality of the citizenry who bother to cast ballots elect an "unacceptable" candidate to be representative does not make that candidate "illegitimate." America has a less than illustrious history of electing corrupt criminals to office and may well do so again in 2016.
I said more but the third part was addressed before, so I'll just say this from my deleted comment ..
"1) You have basically conceded that the "anybody I don't like winning is illegitimate!" sentiment is mostly on your side.
No. He alleged TRUMP will be deemed illegitimate. I disagree with him on the point, but it's not the same as "anybody I don't like winning."
Historical quibble. Sandy: After all, there's no reason at all to believe that a "majority" of those living in the colonies believed that King George III was an illegitimate tyrant even in 1776, nor a "majority" who supported the Bolsheviks over the Mensheviks..."
Actually, for the Mensheviks we do know. In the last free elections held after the October putsch, those for the Constituent Assembly in November 1917, the Mensheviks did even worse than the Bolsheviks. The clear winners were the SRs (Wikipedia):
SRs 17.1m votes, 41%; Bolsheviks 9.8m, 23.5%; Kadets 2m, 4.8,%; Mensheviks 1.36m, 3.3%; all others 11.1m, 26.7%. The Russian peasantry were illiterate and ignorant, but unlike the educated Weimar Germans they were not taken in, and could see who was really on their side.
First, I think we can agree that the sentiment in question, however characterized, will be restricted almost entirely to Democrats. If Trump wins, he will have gotten the votes of almost all Republicans, and a majority of independents. He would not win, otherwise. People who voted for him aren't going to view his election as 'illegitimate'.
Second, yes, it IS a case of, "Anyone I don't like". It's only Trump this time because Trump is the nominee. Basically anyone the GOP could have plausiblely nominated would get the same treatment. Walker, Cruz, Paul; They all would have been portrayed as racist monsters. The last nominee who didn't get that treatment was before I was born, and I'm no spring chicken.
No doubt at first it was a calculated, insincere tactic. After all, it was being deployed by the party of Jim Crow. But today's Democratic Party is made up of people who have been drinking the Koolaid all their lives. They actually believe it.
Remember "Selected, not Elected "? No, Trump won't be the first Republican President Democrats wouldn't admit was legitimate. The elder Bush might have been the last, I think.
Shag: I think an explanation is in order regarding this "moderation" policy.
Balkinization is apparently using this mechanism to close comments while allowing the old ones to remain.
It is a pain to use this function as intended because it requires the blog author to continuously review pending comments, which is why I do not use it on my blog.
"Obama is violating the Constitution in keeping people imprisoned at Guantanamo without due process"
This is bizarre, Obama has pushed to end Gitmo, but, despite the proclamations of our resident bizarre hyperbolic propagandists here, he's not a king. Congress has stymied him. Putting the constitutional blame on him is like putting the blame for the Panthers not scoring more touchdowns in the Super Bowk on Cam Newton rather than the Broncos defense.
""anybody I don't like winning is illegitimate!"
Yeah, the right would never, say, continue to argue a candidate was, all evidence to the contrary, born in another country and therefore can't properly be President even into the person's second term!
"Basically anyone the GOP could have plausiblely nominated would get the same treatment. Walker, Cruz, Paul; They all would have been portrayed as racist monsters"
Would they have gotten the same pushback *from other Republican*
For myself, I'd only consider 'illegitimate' a winner who probably broke the rules. Un or lack of popularity or approval wouldn't do it
"Obama has pushed to end Gitmo, but, despite the proclamations of our resident bizarre hyperbolic propagandists here, he's not a king."
The issue is not closing Gitmo; it is denying due process. To move the prisoners to U.S. prison would not remedy the denial of due process. Hell, if I had to be locked up for 15 years without due process, I'd prefer that it at least be in a pleasant climate such as Cuba's.
Despite any statute that Congress passes, Obama could order trials for the prisoners against whom evidence not derived from torture exists, and he could release the others in the U.S., if not elsewhere. If Congress screams, he could reply, "Impeach me, if you wish, for the high crime or misdemeanor of obeying my oath to uphold the Constitution."
I think we can agree that the sentiment in question, however characterized, will be restricted almost entirely to Democrats.
SL argued that no matter what of the leading candidates wins, a majority would find him/her illegitimate. People pushed back and he then said that only if Clinton would win would a "majority" feel that way. I still disagree with him. If Trump wins, yes, "the sentiment" would be mostly from the Democratic side though some "Never Trumpers" -- including a few significant names -- are not Democrats. I think some Republicans will also find him "unacceptable" on some level.
It's only Trump this time because Trump is the nominee.
No, it's Trump because Trump is deemed (correctly) as particularly bad. It's not "anyone I don't like." It is that Trump is particularly bad. Not that "anyone the GOP could have plausiblely nominated" in 2016 is the same thing as "not anyone I don't like" since your wider point here is historical -- for instance, it has been repeatedly pointed out to you that Romney did not get this LEVEL of treatment, nor did McCain, even if they very well might have got strong opposition with various labels tossed out by some people. Strong opposition of a Walker, who even those who strongly disagree with him accept is a competent governor, would not be the same thing. To you a person calling something "salty" is the same as if one is eating spoonfulls of salt.
Remember "Selected, not Elected "? No, Trump won't be the first Republican President Democrats wouldn't admit was legitimate. The elder Bush might have been the last, I think.
There was only one Republican President since the elder Bush & don't know any Republican President before him (at least before the last days of Nixon, when he was on the road to impeachment) when Democrats as a whole felt a President was truly not legitimate.
The one thing you cite is not germane -- there, the concern was the legitimacy of the election itself, which repeatedly was granted by people here was not the point of SL's discussion. After the Supreme Court decided, Al Gore conceded and Democrats as a whole accepted his basic legitimacy as President. No senator even went along with the electoral vote protest in Congress. A minority of Democrats never relented but the rest very well accepted he was elected & at the very least was "legitimate" by the rules of the game. They treated him as such in Congress and so forth.
If anything, more REPUBLICANS deemed the winner not appropriately legitimate and did so twice since the 1990s. Impeachment was taken off the table by the Democrats. And, some will in 2016 if Clinton wins.
"No, it's Trump because Trump is deemed (correctly) as particularly bad."
I'd be more inclined to buy that if every last Republican nominee in my lifetime hadn't been particularly bad. My point: There wasn't anybody the Republicans could have nominated you wouldn't be saying that of. Ever one of them has been a racist, every one of them has been Hitler, every one of them has been a monster who would start WWIII. Every. Last. One.
You're not calling him particularly bad because of anything he's done. You're calling him particularly bad because he's the other party's nominee.
Various commenters on Balkinization: I'm not going to eat this ice cream; it has arsenic in it.
Brett: But you don't like any ice cream; you've never eaten ice cream. Therefore, the reason that you're not eating this ice cream isn't that it has arsenic in it. And that proves that this ice cream does not have arsenic in it.
Henry, again it seems bizarre to hold Obama the one primarily responsible when his fault is to not be more bold in defying Congress' wishes. Why not reserve more opprobrium for Congress?
Mista Whiskas, point taken. I'll hold Congress in opprobrium as well. I'm not going to debate whether it or Obama deserves more opprobrium; that's too fine a point.
"every one of them has been Hitler"
Trump has not been treated -- including by members of his (at least of late) party -- the same way as Ford, Reagan, Bush41, Dole, Bush43 (especially in 2000 when most at worse saw him as a buffoon), McCain or Romney. Even Nixon in '72. The fact some strong partisans called one or more "racists" etc. does not change this.
I myself did not, here and elsewhere, treat past candidates the same. Because, yes, Trump is particularly worse. You yourself like Trump in part for this very reason -- that he has certain different characteristics. But, when it suits, it's "same old, same old."
Brett, your being quite facile. There's always extreme partisans on each side that would find any candidate on the other side to be nothing less than some tyrant or marking the end of the republic, witness yourself and Bart. The question is the level of and how widespread such an attitude is. There must have been some that thought Dole was Hitler, but if you're seriously arguing that Dole got the same amount of stark vitriol aimed at him as Trump's getting you're either ignorant of that period, blind to it due to partisan blinders or you're lying to push your talking point.
It's also interesting that you continue to elude the point brought up re: the fact that so many major GOP figures find Trump so objectionable indicates that it's not just predictable partisan angling going on here, but a genuinely different kind of candidate which might be sparking a different kind/level of opposition.
Also, I noted in the past there's an archive here. One can search past posts by Levinson or Balkin. Can you present one where they speak of, say, Romney or Dole the way they do about Trump? Your hypothesis would seem to rise or fall on some kind of evidenced there produced or not. So, other than hyperbole, whaddayagot?
Yes, if there was a sheriff who wanted to drop charges and release jailed protestors but the city council rushed through an ordinance barring the use of any city resource or employee time in doing so and the sheriff gives up, I can see criticizing the sheriff for not pushing harder, but the worse offender, if you think keeping the protestors in jail is an offense, is clearly the council.
[delete a comment on a side issue]
Okay. Local teams won. Starting to belabor points.
Let's move on to a new thread for Monday!
"but if you're seriously arguing that Dole got the same amount of stark vitriol aimed at him as Trump's getting you're either ignorant of that period, blind to it due to partisan blinders or you're lying to push your talking point."
No, my point is that it's been escalating. Trump is just the latest point on the curve, and any of the plausible nominees would have landed on the curve. Because the curve is not a function of the nominees. It's a function of Democrats' declining tolerance for disagreement with themselves.
As I said, I think that's because the generation that adopted calling every Republican a racist/fascist/monster as a conscious tactic is dying out, and being replaced by the generation that grew up absorbing that poison with their mother's milk, who have marinated in it all their lives. They haven't just been drinking the Koolaid, they've got the Koolaid for blood.
"Henry, again it seems bizarre to hold Obama the one primarily responsible when his fault is to not be more bold in defying Congress' wishes. Why not reserve more opprobrium for Congress?"
I've already agreed that Congress deserves opprobrium too. But now I want to focus on the phrase "his fault is not to be more bold in defying Congress' wishes." No. Obama's fault is in keeping people--most of them innocent--in prison for the almost eight years of his two administrations, allowing them to be tortured, driving them to go on hunger strikes, and then allowing them to be unconstitutionally force-fed in a manner that constitutes torture. A decent person does not allow such things to happen. An unwillingness to be bold, either for political reasons or because of natural timidity, is not an excuse to allow this to occur. Nor is the fact that Congress or the federal courts could have done something about it. Nor is the fact that Obama--mostly only toward the end of his second term--has freed quite a few of the prisoners. Some remain in prison, under a Constitution that prohibits the denial of liberty without due process of law. We should not lose our capacity to be shocked by this, every moment that it occurs.
Sandy: Ao the question remains, why doesn't this likely consequence count as a genuine constitutional--and existential--crisis for the United States (and thus, in a deep sense, the entire world)? Can any reasonable person believe that our political system is working well or iis likely to get genuinely better in the foreseeable future (even if, as I would of course hope to be the case, Clinton smashes the sociopath and carries the House and Senate with her).
I am curious.
What do you think about Jack's call for a Democrat presidential and bureaucratic dictatorship to be rubber stamped by the new dictator's Democrat appointments to the Court?
Nothing Trump has proposed comes close to this proposed assault on our constitutional republic.
"No, my point is that it's been escalating."
I don't think that's right. Mitt and McCain didn't catch near as much of that as W did. The left hated them some W, especially that second run.
Candidates that heighten the cultural differences in a polarized electorate get more of this than one's that don't. And no one heightens the more than Trump. Heck, the professionals in his own party, that were Mitt boosters (say what you want about Mitt, but he exuded professionalism) four years ago, can't support the guy. He's different.
"What do you think about Jack's call for a Democrat presidential and bureaucratic dictatorship to be rubber stamped by the new dictator's Democrat appointments to the Court?"
In non-Bizzaro hyperbole language this translates to "what do you think of the idea that a President should appoint nominees to the Court that agree with their interpretations on hotly contested constitutional issues?" You know, what every President ever has done.
Henry, this isn't a case where either Obama or Congress could end Gitmo but neither did, Obama moved to do it and Congress moved to stop him. Again, blaming the former is like blaming the running back brought down short of the goal rather than the linebacker who tackled him for there being no touchdown.
Mista Whiskas, I assume that the President has the power to direct an underling, such as the attorney general or a military lawyer, to prosecute a prisoner. I also assume that the President has the power to order a ship or a plane to land on Guantanamo and to order the jailers there to release a prisoner into the custody of an officer on the ship or plane. And I assume that the President has the power to order an officer on the ship or plane to release the prisoner when the ship or plane arrives in the United States. When I speak of "power" in these instances, I mean the physical ability, not necessarily the statutory authority. The Supremacy Clause, after all, makes the Constitution supreme. Finally, I assume that, if any federal employee refused to follow the President's orders to prosecute a prisoner or to transport and release him, then the President could fire that federal employee and assign the task to another one.
Are my assumptions correct or incorrect? I ask that honestly, not rhetorically.
P.S. I realize that a federal employee who was fired for refusing to obey the President's orders would be entitled to due process.
I assume that the President has the power to direct an underling, such as the attorney general or a military lawyer, to prosecute a prisoner.
This whole subject is pretty far removed from Prof. Levinson's post. That aside, I'm not sure of the point here. The Executive, by itself, can't "prosecute" anyone. "Prosecution" implies a court. In what court could Obama have prosecuted anyone at Guantanamo? Congress barred transfer of the prisoners to the US for trial, which was the original plan. Use of military courts may very well violate due process concerns; as I understand it, the prisoners object to such trials. What other options do you see?
Mista Wiskas, Mitt actually did catch a lot of that, if you go back to what Democrats were saying about him 4 years ago. It's just that he has now transitioned to stage 2: Rehabilitated in retrospect so that the new nominee can be contrasted with him.
McCain would have caught more of it, but Democrats will forgive almost anything in a Republican who's willing to lose.
BD: "What do you think about Jack's call for a Democrat presidential and bureaucratic dictatorship to be rubber stamped by the new dictator's Democrat appointments to the Court?"
Mr. W: In non-Bizzaro hyperbole language this translates to "what do you think of the idea that a President should appoint nominees to the Court that agree with their interpretations on hotly contested constitutional issues?" You know, what every President ever has done.
Do you suffer from dyslexia or are you willfully ignoring the first half of my question discussing Jack's call for a Democrat presidential and bureaucratic dictatorship, which he innocuously terms "presidential governance?"
Appointing judges to rubber stamp the proposed dictatorship is not merely "the idea that a President should appoint nominees to the Court that agree with their interpretations on hotly contested constitutional issues."
"the generation that adopted calling every Republican a racist/fascist/monster"
The average Democrat did not call "every Republican," even every Republican presidential candidate such names as whole. Many think, and the facts back this up, the Republican Party at least since the days of Nixon in some ways promotes racism, but that is different from them saying "every Republican" is "a racist." They also have not called every Republican a "fascist" or "monster," putting aside that as Mr. W. notes you could find strong partisan comments of that caliber.
Brett speaks in rank hyperbole. And, the point holds. Trump is getting a special degree of opposition, including from his own party, beyond the opposition (as candidates will get for various reasons) those in the past. This is not merely a result of "escalation" but because Trump himself has certain characteristics. These have been repeatedly spelled out by a range of ideological sorts, though Brett over and over again makes this about Democrats.
He tosses in that McCain was willing to lose. Whatever that means except to the degree that like the normal candidate he had limits. It is far from clear that Trump isn't. If he loses, he still wins in various respects. If he truly wanted to win, that's it, Trump very well would have changed his tactics in certain respects to become more acceptable. But, he refuses to do so.
I'm curious exactly what Sandy means by a 'critical mass'. Obviously, if either of them is elected without considerable ballot fraud, a majority will regard them as legitimate. Almost tautologically.
Otoh, it doesn't take a large minority to render a country almost ungovernable, if they're sufficiently unhinged and violent. Is Sandy anticipating a revival of the Weathermen if Trump wins?
Dyslexia trumps an inability or unwillingness to read at all, which you seem to exhibit here (q. Would an actual congenital inability/unwillingness to read but still offer opinions on warrant a disbarment based on incompetence?).
First, Balkin doesn't 'call for' anything. He says quite plainly for those able/willing to read:
"I think that the new regime of presidential governance is very worrisome. It is a bad idea and will prove unsustainable in the long run. Our constitutional system was designed for governance by three co-equal branches, not for governance by only two. Nothing I say here should be understood as an endorsement of the emerging system of presidential governance. I do not endorse it. Rather, I am describing what I think will happen and how judicial review will be justified in this new (unfortunate) situation."
Secondly, he's clearly also not even describing what you falsely claim he calls for:
"A federal judiciary appointed mostly by Democratic presidents will tend to authorize most of what Democratic presidents--and an executive branch staffed mostly by Democrats--want to do. At the same time, the courts will set boundaries on presidential lawmaking and governance. That is because the role of courts is legitimation, not mere acquiescence; legitimation requires both upholding and striking down government action."
Setting boundaries to and striking down the proposals of the bureaucracy and President leave it a dictatorship only to those illiterate of the meaning of the term.
Brett, Mitt caught nowhere near the amount of such extreme criticism as Trump or even W in 04. You concede McCain didn't either but try to hand wave it away with the old conservative canard that he must not have wanted to win because he didn't 'take it to Obama the way hard core conservatives like yourself would have. Apart from the idea that maybe he rightly such approaches would have turned off more people than it would have gained him (hard core conservatives can't stand outside themselves to see how people outside their bubble might see things differently), you're stuck with, what, Mitt, who disappointed the hard right more than McCain by supposedly 'pulling his punches' 'wanted to win' but McCain didn't? Laughable. Just give up your narrative, the facts don't fit.
Also, Brett, though you keep eliding it I don't plan on letting your personal calumny re Sandy go. The archives are there. Do you have any proof for your charge to Sandy in particular that he attacked Romney with the same level or amount of vitriol as he does Trump? You should retract your charge if it can't be supported.
Jack denies endorsing "the new regime of presidential governance," but his arguments belie that denial.
Jack, every other professor here and you have repeatedly ignored or excused Obama's imposition of this bureaucratic dictatorship. Hell, you have been denying the existence of the dictatorship which Jack at least recognizes:
For the purposes of this post, assume that the Democrats win the White House in November....At this point we should recognize that the Reagan regime is over. A new regime--call it the Obama regime--will have begun.
Then Jack starts reeling off justifications for this dictatorship:
If this happens, [the Democrats] will have won the popular vote in six of the last seven elections, and the presidency in five of the last seven...
If a party wins the popular vote (if not always the presidency), I assume this permits their presidents to rule by decree.
In a system of presidential governance, the executive branch is the central player in governance because Congress is deadlocked.
I guess is missed the section of Article I or Article II which grants Democrat presidents the power to decree law when a GOP Congress refuses to enact it.
Then Jack expressly calls on the Democrat judiciary to "legitimize" the new Democrat dictatorship, while occasionally letting the next dictator know that she cannot have everything they want:
Federal judges perform two important tasks in the new regime. First, judges legitimate and constrain presidential governance. They authorize and set constitutional boundaries on presidential governance. This legitimates the system, even though courts sometimes prevent presidents from doing certain things they would like to do.
A professor of law sworn to support the Constitution should note Article I grants all power to enact legislation and to raise/spend money to Congress and Article II grants the president no power to govern in these areas.
A professor of law sworn to support the Constitution should condemn President Obama for using the bureaucracy to govern by decree in no uncertain terms and call on Congress to impeach the outlaw president and the courts to reverse his unconstitutional decrees.
I have to say, I don't think your polouitical blogging shows you in your best light. You're always spinning out these rather febrile electoral scenarios and then speculating on the constitutional crises that will ensue should they come to pass. The idea that if Trump wins it will be because of voter suppression in Wisconsin and Texas is rather risible. Obama beat Romney and his fairly popular Wisconsite running mate by 7 in Wisconsin; if Trump is even in position to win Wisconsin with the help of voter ID laws, he'll already be over the top. Romney beat Obama in Texas by 16, and before you say that Trump's unpopularity with Hispanics could close that gap, Romney was incredibly unpopular with Hispanics himself. If Trump needs voter suppression to win Texas (though hasn't the Fifth Circuit enjoined voter ID there?), he'd be losing by a landslide. The reality is that Trump may not need voter suppression to win the election; he's leading in some national polls by decent margins and very close in all the others, and those polls don't take voter suppression into account (pollsters don't ask about photo ID or whatever you're thinking of when you talk about voter suppression in their likely voter screens).
As for the crisis of legitimacy that will supposedly ensue if Hillary wins, lots of people feel that Obama's illegitimate; a very sizeable percentage of Republicans still even believe he was born in Kenya. But has this threatened basic political stability in the least? I don't see why Hillary's legitimacy crisis should be any more serious.
"So, the argument is that any such convention would be a forum for Romney- and Huckabee-types who would, given half a chance, eviscerate the Bill of Rights and establish a theocracy."
Took me about 20 seconds to find it, and I haven't even drank my morning tea yet. You might complain that this statement attributes the sentiment to others. But he appears to take it seriously.
I'll agree he's become more unhinged this election. That's what I've been saying: They've been doing it all along, but it keeps getting worse. I think it's a phenomenon that feeds on itself, and, in a nod to Sandy, it's hit its critical mass this election.
But I don't think that, if Cruz had gotten the nomination, he would have been treated any different.
Sandy, if you're going to keep putting your posts into moderation, (And leaving comments in moderation for days.) don't you think you should post a last comment warning us?
Because you don't get told the lid has come down until your carefully crafted comment, that you may have spend considerable time on, is sent. This seems rather unfair.
Bart, your reading of Balkin's piece is recklessly incompetent, dishonest and/or slanderous. I really am starting to think a hearing down in Colorado might be warranted.
In your previous two calumnies toward you totally ignored Balkin's long and explicit disavowal of any endorsement of what he was instead *describing.* You either missed it, couldn't read it, or couldn't understand what was plainly stated and repeated in a full paragraph.
You now try to handwave that off, but you compound the failings described above, because no person literate in English who is not being a dishonest partisan can read what follows Balkin's long, explicit, repeated denial of endorsement as anything negating the same. Every example you give fits with someone simply *describing.*
You go one to say: "very other professor here and you have repeatedly ignored or excused Obama's imposition of this bureaucratic dictatorship. Hell, you have been denying the existence of the dictatorship which Jack at least recognizes"
This is of course your bizarre, idiosyncratic, demonstrably at odds with how both the dictionary and most political scientists use the word 'dictatorshop' and apply it. Every professor here and I don't 'ignore' or 'excuse' 'Obama's imposition of this bureacratic dictatorship' because we rightly realize no 'bureaucratic dictatorship' exists. When the alleged 'dictatorship' seems to suffer a court rebuke and defeat on a weekly basis the allegation becomes laughable. But now we have further proof that even hyperbolic propagandists peddling such accusations such as yourself either don't think this way or are bone-headedly unable to understand what a 'dictatorship' is, as in the previous thread you said this:
"Reversing all of Obama's dispensations from Congress's immigration law would take a single executive order."
So all it takes to break the supposed iron grip of this right hand of dictatorship is: to elect someone in one of our periodic elections who wants to do so. That's it, whole thing reversed by one EO by a different executive. Only a madman, fool or liar would call this dictatorship.
Bart: "A professor of law sworn to support the Constitution .." You use this phrase twice.
This European is puzzled. When do American law professors swear to support the US Constitution? In practice, most of them do support it. Sandy Levinson thinks it is legitimate but deeply flawed. I could imagine a Marxist or royalist jurist arguing that the Constitution is an illegitimate and undemocratic mess, irredeemably stained by its original sin of slavery, that should be swept away and replaced by something modern and intelligible like the German constitution. It could be good for law students to be exposed to such a bracing critique, if it were argued with learning and intelligence, as a corrective to the prevailing forelock-tugging deference and even adulation.
You can have an atheist professor of theology like Don Cupitt. It is questionable whether he should be an Anglican priest too.
Sandy- I don't disagree with your thesis, but I have a question. Under your thesis, Obama would have played the role of James Buchanan in basically using his presidency to set (or fail to stop) the conditions for a civil war. So should Obama be therefore be judged as one of our worst presidents?Post a Comment