Tag Archives: Judiciary

Asymmetric belief in authority

May 10, 2022 11:32 am

Most people on the mainstream center-to-left spectrum have been successfully trained, to respond to the paralysis of this Congress, by parroting the names “Manchin and Sinema.” Supposedly Democrats are soundly for change—even in the US Senate 96% of them want to do something!—and all the responsibility for obstruction lies with the Evil Bobbsey Twins plus all the Republicans.

There are multiple reasons why this excuse is unsatisfactory, and I will note some others below. But first, I want to revisit something I have posted about here, before.

If you take them at their word (and in this regard I believe that we should) then Democratic elites genuinely believe that Mike Pence, alone, could via some sleight of hand with note cards have literally made Donald Trump the president for 2021-24. They may also profess that this act would have violated the rules, yet the degree of alarm in references to that prospect, combined with other patterns, convinces me: they really believe that one (lame duck) authority figure could have declared that down is up, and obliged the rest of society to stand on its head.

Yet these same Democrats profess that Senate President Harris and Senate Majority Leader Schumer are essentially powerless observers. Their hands are tied.

Say what you like, but this is an extremely asymmetric belief in authority.

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America’s Politics Not Fit for Purpose

February 28, 2021 10:50 am

The American political system does not solve problems, or even resolve disputes, at a national level.

This feels like a big-picture understanding of failed-state reality, above the day to day or even year to year blowups.

A good political system ought to solve broad problems of society, and create better and fairer conditions over time. But for a political system to qualify as functional at all, it ought to resolve some disputes. Even if one credits a political system of endless unresolved disputes with being at least preferable, compared with those fights playing out through violence, this does not seem stable beyond a short term. If arguments just fester, while infrastructure decays, explosions seem inevitable.

As America draws near a decade since the optimistic forecast “that the fever may break” soon, I believe we may say that our political system is just not fit for purpose at a national level. I know I say this kind of thing, a lot, but this fundamental futility seems important.

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Nullification 2021

February 11, 2021 6:38 pm

America’s factions of privilege have a long history with “nullification” in various forms, so it isn’t exactly surprising to see Republicans playing with the concept again. It’s at least a little strange to watch them open a door to judicial decisions carrying no authority unless one agrees with them right after they spent several years packing the federal courts with partisan Republican operatives, but that’s where we are.

Republicans don’t seem to have worked out any cohesive strategy for dealing with the January 6 putsch. To some extent this is a concentration of their overall problem dealing with Trump, but January 6 seems to have actually flummoxed them. The initial direction from leadership was basically “disperse, lie low, hold your breath” and the party seems like it hasn’t ever quite filled that vacuum.

First the Senate went into recess through the end of Trump’s term, effectively a refusal to look at any impeachment articles while Trump was in office. Then Republicans introduced the objection that “we can’t act on impeachment now because Trump is out of office.” This classic chutzpah is entirely typical of them, and they might have pulled it off if they still had the votes to control Senate business completely, despite the fact that the objection is not only hypocritical but totally false. Never mind obscure precedents; the Constitution itself says “The Senate shall have the sole Power to try all Impeachments.”

Republicans’ willingness to ignore that and claim that an impeachment trial is “unconstitutional” should shock people. If language that clear is “open to interpretation” then the Constitution might as well be oracle bones with no meaning except what judges say it has. But in a sense this is exactly what Republicans want: to transfer authority to an unelected, rigged judicial priesthood.

That strategy depends on judicial decisions having unquestionable authority, though, and now Republicans are actively flirting with a nullification doctrine. If Republican senators end up trying to evade reckoning with January 6 by saying “based on the evidence I would vote to convict Trump if the Senate had that power, but it does not so I have to oppose conviction” they will be declaring judicial decisions optional along with the language of the Constitution.

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