Political Animal

RIP RBG. Now End the Filibuster. Add States to the Union. Expand the Courts.

The passing of Justice Ruth Bader-Ginsburg has left a deep hole in the hearts of millions across the country. She was a giant of jurisprudence, one of the most consequential Americans to have ever lived, and an inspiration to so many for her intellect, her moral center, her trailblazing biography, her resilience and even her physical toughness.

But her passing also leaves a bleeding wound in American democracy, one that reinforces the crisis of legitimacy of conservative minority rule in America. It is a legitimacy crisis that Democrats must heal and rectify should they win power in November–especially if Republicans are shameless enough to force through a conservative to replace Bader-Ginsburg before the inauguration of the next president, against her dying wish. Democrats must, if they win, alter the composition of the Senate and the Court so that both reflect the will of the majority rather than the tyranny of a minority.

Consider the situation: a president who lost the popular vote by 3 million ballots has already stacked the lower courts and appointed two of the nine justices on the Supreme Court, shifting the balance of both the lower courts and the highest court in the land to the right, in the latter case by replacing a social moderate with a Federalist Society extremist. He was aided in doing so by Senate Majority Leader Mitch McConnell, who ruthlessly and without precedent refused to allow President Obama to nominate a replacement to Justice Scalia for the entire final year of his term. McConnell cynically argued at the time that the American people should be able to decide on who would sit on the Court, hedging his bets for an outcome favorable to conservatives. Improbably, he got his wish.

Notably, though, the people didn’t decide: the majority of the people voted for Hillary Clinton. Just as the majority of Americans didn’t vote for the Republican Senators who currently constitute the Senate majority: the GOP Senate “majority” represents only 153 million Americans, while the Democratic “minority” represents 168 million. McConnell, of course, doesn’t care. Asked if he would fill a Supreme Court vacancy in the final year of Trump’s term despite the rank hypocrisy of such a move, McConnell smirked and said “oh, we would fill it” to a laughing audience. It’s also worth stressing that another two of the Court’s justices were appointed by George W. Bush in 2005 and 2006, who also lost the popular vote during his first election, and was confirmed by a conservative Senate majority that also represented a minority of Americans.

Nor has the reality of minority rule tempered the extremism of the rulers. Rather than compromise under the recognition of their precarious legitimacy, Republicans have behaved as if were elected with smashing mandates. Worse, they have governed time and again in a way that shows they literally do not care if the Democratic constituents who make up the majority of America live or die. The GOP base, meanwhile, has demonstrated in its fervent and continued support for Trump that they share equally in their contempt for their left-leaning fellow citizens. They view any impingement on their right to minority rule as a form of totalitarian oppression.

There is no culture shift that Democrats can make to rectify this imbalance. No number of jovial cocktail dinners or backslapping lunches will convince QAnon-aligned conservatives to break bread and make compromises with Democrats on pressing crises like healthcare or climate change. No number of left-populist promises of Medicare for All, guaranteed jobs and working-class solidarity will move those who believe that Black Lives is a violent conspiracy, that Bill Gates wants to implant them with microchips, or that climate change is a Soros-funded hoax. Nor has data shown that either approach pushes enough non-voters to to the polls to create a sea change in the divided electorate. Change must be structural and permanent so that the incentives toward minority rule are ended, and so that Republicans will be forced to align their politics toward winning the favor of a majority of voters–including and especially the growing legion of Millennials, Generation Z and people of color who increasingly comprise the electorate.

The most immediate steps Democrats must take are killing the filibuster, adding states to the union and expanding the courts.

The filibuster has historically helped conservatives far more than it has hurt them, and they know it. More importantly, in a country as divided along urban and rural lines as America is today and as polarized as the parties are, there is increasingly no way for either party to gain 60 Senate seats and no way for either party to govern to create real change as long as they fail to do so. Changing the composition of the courts, combined with executive orders, is almost the only change a ruling party can make. This leads to a dangerous sclerosis of the government and an incentive toward unitarian despotism in which executive orders increasingly become the sole functioning policy tool.

But the filibuster is also untenable morally. By 2040, under current trends only 30 percent of the Senate will be governing a full two-thirds of the American public. And that 30% is likely to be the most rural, most conservative 30%, while the two-thirds is likely to be in more urban, bluer states. This is a recipe for apartheid rule as long as 60 Senators are required for any legislative change. And yes: ending the filibuster carries downside risk should Republicans regain control of the White House, Senate and House of Representatives in the future. But if voters do decide to send Republicans to power en masse in 2024 or beyond, then the people should get the government they voted for–and the legislators they support should be held accountable accordingly, rather than have their stances disguised through legislative gridlock.

The Senate should also be expanded by adding Washington, DC and Puerto Rico to the union–at a minimum. It is appalling that the Washington, DC metro area has more people in it than some states and generates enormous economic activity, but has no effective representation in Congress. Puerto Ricans, meanwhile, are American citizens with all the responsibilities of citizenship but none of the representation. Assuming the residents of the island agree that they wish to become an American state, they should be allowed to do so. Republicans would call this a power grab, but it isn’t. Creating equal representation from a system of apartheid-style minority rule is not oppression, but justice. It’s also notable that the current make-up of states, including and especially the existence of a separate North and South Dakota, is due to an explicit 19th century Republican power grab designed to alter the composition of the Senate. It’s worth noting that the Republicans of their day were mostly the good guys and the Dixiecrats the bad guys, but still: turnabout is fair play.

Finally and most controversially, Democrats must consider expanding the court–particularly if Bader-Ginsburg is replaced by a conservative. A federal court system in which the majority are appointees of popular-vote-losing presidents who then proceed to stymie all popular legislation enacted by a duly elected majority of legislators is both immoral and untenable. The balance must be rectified. There is nothing in the Constitution outlining the number of judges on any given court. Indeed, the Supreme Court has been expanded before.

Would this potentially create an arms race in which each unitarian majority government proceeded to expand the courts to govern however they please? Perhaps. But the danger to democracy and, frankly, to the country and the planet from allowing minority-rule theft of power to prevent any significant action on the country’s pressing problems would be far greater.

Other countries’ electoral systems can and do survive with more flexible, majoritarian electoral systems and power structures. America can survive, too. What it cannot survive is the status quo of structurally racist minority rule. The departure of Ruth Bader-Ginsburg is a focal point for desperately needed reforms, and it will fall on Democrats to act on them.

Remembering Ruth Bader Ginsburg

I never knew Ruth Bader Ginsburg. My memories come from sitting in the same room with her for hours every month, listening to every word she said, reading everything she wrote, and wondering what was in her mind. What I most remember is the Court’s last session of the 2009-2010 term, when the emboldened conservative majority announced, in an opinion by Samuel Alito, that the Court’s newly expanded “right to keep and bear arms” extended to the states as well.

Ruth Ginsburg did not speak from the bench that day. She joined a dissent by her friend Justice Stephen Breyer and sat at the bench to bear witness.

Her husband Martin Ginsburg had died the day before.

Ruth and Marty Ginsburg had met at Cornell when she was 17. They married after graduation, and Ruth followed Marty Ginsburg to Fort Sill, Oklahoma, for his Army service, then gave birth to a daughter and entered Harvard Law School in the class behind his.

When he was stricken with testicular cancer, she took notes in her own classes and his. And when he graduated from Harvard Law and took a job in New York, she transferred to Columbia and finished her law degree there. When she began teaching, it was Marty who brought her an obscure case in which the income-tax law discriminated against a widower because he was male, and convinced her to take it court—a decision he later modestly claimed “got my wife her cool job.” Marty cooked for the family, told jokes at social occasions, nurtured her career, and worked the phones when Bill Clinton had a vacancy on the Supreme Court to fill.

Anyone who knew anything about either of them knew that they formed one of the most powerful and touching love stories of their time. But she was on the job the next day.

That moment to me summarized her life. The meme she spawned—the NOTORIOUS RBG—was on its face silly. But it expressed something all around her sensed. What underlay her questions from the bench, and the words she wrote, and the entire life she lived was a determination that seemed all but superhuman. When she entered Harvard Law, she was unsubtly urged by Dean Erwin Griswold to consider giving up her place to a man. In the last years of her service, she was loudly urged by many outside the Court to resign and allow Barack Obama to nominate a replacement. I have no idea what was in her mind, but her decision to stay on the bench was a grim gamble with fate. But it shouldn’t have surprised anyone. When she chose to stay on the Court, I wrote that Ginsburg had the “body of a sparrow and the heart of a lion.”

A nation already reeling—from a terrifying pandemic, from violence, from brutal repression in the streets, from apocalyptic wildfire, and most important, from a government that simply refuses to care—has lost an irreplaceable spirit. She exited the world as we all will—as a human being, leaving behind the deeds she performed and the words she wrote as an ambiguous gift to an uncertain future.

Tomorrow the politics. Tomorrow the list of names. Tomorrow McConnell, and Susan Collins, and the future of Roe v. Wade, and the dark-money ads, and the ghoulish glee from the right. Legitimacy, court-packing, stolen seat—all the Supreme Court nightmares of the past four years will be replayed in a searing summary in the weeks between now and November 3.

But tonight we mourn.

Why Are Both Trump and Biden Visiting Northern Minnesota?

Hillary Clinton beat Donald Trump in Minnesota by only 1.5 points in the 2016 election. That is why, as Trump struggles in the Rust Belt, his campaign has consistently targeted the “land of 10,000 lakes” as a possible flip in 2020. 

On Friday, both presidential candidates will visit the state and the location of their stops is instructive in understanding their strategies in Minnesota. Neither Trump nor Biden are targeting the Twin Cities Metro area, which encompasses over 50 percent of the state’s population, because the outcome there is pretty much a foregone conclusion.

Instead, Trump will go to Bemidji and Biden to Duluth. Both cities are in northern Minnesota, with the former situated in the 7th congressional district and the latter in the 8th. In the 2018 midterms, the 8th district was one of only three in the entire county where a congressional district flipped from blue to red.

I doubt that most Americans have ever heard of Bemidji, a town of about 14,000 that is nestled next to the headwaters of the Mississippi River and is perhaps best known as the birthplace of Paul Bunyan. Of course, the name of the town comes from Native Americans, who populated the area long before white settlers arrived. Bemidji is now surrounded by three reservations: Red Lake, White Earth, and Leech Lake. 

As you can see from the map, however, the 7th congressional district covers almost all of the western third of the state, a heavily rural area that Trump won in 2016 by over 30 points. So true to form, Trump is going to the part of the state where his support is already the strongest.

On the other hand, Biden will visit Duluth, a solidly blue city, which is located in a district that Trump won by 15 points and includes what is often referred to as the “Iron Range,” due to its long history as a mining area. For decades now, that industry has been in distress, which is where Trump’s so-called “populist” message resonates. When Republicans tout their success in the 7th district, that is the message they highlight. 

But the 7th district is also home to the area known as the North Shore of Lake Superior and the Boundary Waters Canoe Area Wilderness. While the North Shore happens to be my favorite get-away destination in the state, it might surprise you to know that the Boundary Waters is the most visited wilderness area in America, encompassing more than a thousand lakes and 1,200 miles of canoe routes. The Trump administration has opened up the area to mining interests that could threaten its pristine nature. 

That puts the 7th congressional district in the midst of a major tug-of-war between the extraction industry and the recreation industry—something that has also been gripping the Mountain West region, as Ryan Cooper wrote about in the Washington Monthly back in 2014.

It is true that there are many jobs to be had in the extractive industry…And it should be noted that these jobs are of a kind that is vanishingly rare these days: they require a high school education or less, and though they are often dangerous, they pay well enough to support a family.

But the economic benefits of an extraction economy are not as one-sided as the extractive industries and their allies would have you believe. There is a lot of money in the recreation economy as well—and it’s much more sustainable over a long period of time. While the extractive industries tend to follow a boom-and-bust cycle, the recreation industry is more consistently reliable. Its booms aren’t as dramatic, but neither are its busts.

Outsiders are able to grasp the importance of the loss of the jobs in the extractive industry that have plagued the Iron Range in Minnesota. But it is important to keep in mind that almost everyone in the state—including many of those miners—consider the Boundary Waters area to be almost sacred. The fact is that, if you live in Minnesota and don’t hunt, fish or boat, you risk being an outcast. Even the Mesabi Iron Range, the most active mining area, sells itself primarily as a recreational destination. 

Those are some of the issues at play in northern Minnesota. Trump is going to Bemidji because his campaign strategy has always been to make an appeal to his base. Biden, who currently leads in the state by almost nine points, is shoring up the fact that he has traditionally had strong support from the Iron Range, even as it began to evaporate for other Democrats. He’ll lend that support to Senate candidate Tina Smith and Quinn Nystrom, the Democrat who has a shot at flipping the 8th district back to blue. 

A Tale of Two Town Halls

On Thursday, Joe Biden participated in a CNN town hall near his hometown of Scranton, Pennsylvania. It was similar to the one President Trump held on Tuesday in Philadelphia. It’s not hard to understand why they both chose the Keystone State. According to the analysts at FiveThirtyEight, Biden has 96 percent chance of winning the election if he carries Pennsylvania, which compares to an 84 percent chance for the president.

The reviews of Biden’s performance have so far been vastly less critical than the near-total condemnation that greeted Trump’s erratic one. One of the main critiques of Trump’s town hall was that he delivered “a firehose of lying,” as CNN fact-checker Daniel Dale put it.

Washington Post fact-checker Glenn Kessler said Trump made “four Pinocchio” statements “over and over again.” But Kessler also found fault with some of Biden’s material.

At one point, Biden incorrectly attributed a University of Washington estimate on how many lives could be saved by wearing masks to Centers of Disease Control director Dr. Robert Redfield. He was also sloppy when he expressed incredulity that some people in the media make a big deal out of him not having an Ivy League degree. No one has suggested that he’d be the first president who didn’t attend an Ivy–in fact, Ronald Reagan graduated from Eureka College in Illinois.

But one thing to note about Biden’s misstatements is that they weren’t exactly crowdpleasers. Democrats tend to cringe when their candidate wastes a good attack line by overstating the case, and they actually care when statistics are misattributed or mistakes are made in describing recent events. Biden will mostly likely clean these things up rather than make them a staple of his campaign.

Trump’s inaccuracies were more familiar and completely different in nature. He lied for the umpteenth time about the Obama administration not bequeathing him an adequate supply of ventilators. He lied about when we can expect a vaccine, and he will continue to make this a key part of his pitch for reelection. He lied about how America compares to other nations with respect to the pandemic, and he once again said nonsensically that we’d have fewer cases if we did fewer tests. Whether he was falsely accusing Nancy Pelosi and Joe Biden of criticizing his (belated and incomplete) travel ban on China or disputing that he had downplayed the threat of the virus, Trump’s lies were part of a routine. His audience enjoys it when calls COVID-19 the “Kung-Flu” or the “China virus.” They get a big kick out of attacks on Barack Obama and Nancy Pelosi. Trump tells these lies to entertain his base, and he tries to evade responsibility at every turn. That’s why no amount of fact-checking will deter him and he will repeat these same lies for as long as the campaign lasts.

By contrast, Joe Biden will probably continue to talk about his lack of an Ivy League degree, but he’ll be careful not to say he’d be the first president without one. He’ll do these things in part because he’s not a fundamentally dishonest person, but also because Democrats don’t enjoy or reward dishonesty.