Tag Archives: legitimacy

Misogyny Over Racism?

In the January/February issue of the Atlantic, Peter Beinart attributes the global move to authoritarianism to misogyny.

After noting the current roster of bullies in power in various countries–he calls them ‘Trumpists’– and noting the very different political and economic environments of those countries, he points to the one threat they all share: women.

But the more you examine global Trumpism, the more it challenges the story lines that dominate conversation in the United States. Ask commentators to explain the earthquake that has hit American politics since 2016, and they’ll likely say one of two things. First, that it’s a scream of rage from a working class made downwardly mobile by globalization. Second, that it’s a backlash by white Christians who fear losing power to immigrants and racial and religious minorities.

Yet these theories don’t travel well. Downward mobility? As Anne Applebaum pointed out in this magazinejust a few months ago, “Poland’s economy has been the most consistently successful in Europe over the past quarter century. Even after the global financial collapse in 2008, the country saw no recession.” In the years leading up to Duterte’s surprise 2016 victory, the Philippines experienced what the scholar Nicole Curato has called “phenomenal economic growth.” The racial-and-religious-backlash theory leaves a lot unexplained, too. Immigration played little role in Duterte’s ascent, or in Bolsonaro’s. Despite his history of anti-black comments, preelection polls showed Bolsonaro winning among black and mixed-race Brazilians. Racism has been even less central to Duterte’s appeal.

The problem with both American-born story lines is that authoritarian nationalism is rising in a diverse set of countries. Some are mired in recession; others are booming. Some are consumed by fears of immigration; others are not. But besides their hostility to liberal democracy, the right-wing autocrats taking power across the world share one big thing, which often goes unrecognized in the U.S.: They all want to subordinate women.

Beinart quotes Valerie M. Hudson, a political scientist at Texas A&M, who reminds us that  for most of human history, leaders and their male subjects agreed that men would be ruled by other men in return for all men ruling over women. Since this hierarchy mirrored that of the home, it seemed natural. As a result, Hudson says, men, and many women, have associated male dominance with political legitimacy. Women’s empowerment disrupts this order.

The article mines history to illustrate the ways revolutionaries have used “the specter of women’s power” to discredit the regime they sought to overthrow.

French revolutionaries made Marie Antoinette a symbol of the immorality of the ancien régime and that Iranian revolutionaries did the same to Princess Ashraf, the “unveiled and powerful” sister of the shah. After toppling the monarchy, the French revolutionaries banned women from holding senior teaching positions and inheriting property. Ayatollah Khamenei made it a crime for women to speak on the radio or appear unveiled in public….

When the Muslim Brotherhood leader Mohamed Morsi replaced the longtime dictator Hosni Mubarak in Egypt, Morsi quickly announced that he would abolish the quota guaranteeing women’s seats in parliament, overturn a ban on female circumcision, and make it harder for women to divorce an abusive husband. After Muammar Qaddafi’s ouster, the first law that Libya’s new government repealed was the one banning polygamy.

Beinart draws a comparison to Trump, whose attitudes toward women were shared by supporters whose hatred of Hillary was blatantly–even exuberantly– sexist. The misogyny theory even explains Trump’s improbable support among Evangelicals.

Commentators sometimes describe Trump’s alliance with the Christian rightas incongruous given his libertine history. But whatever their differences when it comes to the proper behavior of men, Trump and his evangelical backers are united by a common desire to constrain the behavior of women.

The article is lengthy, and filled with concrete examples. It’s persuasive, and well worth reading in its entirety. Assuming the accuracy of the analysis, it’s hard to disagree with this observation near the end of the essay:

Over the long term, defeating the new authoritarians requires more than empowering women politically. It requires normalizing their empowerment so autocrats can’t turn women leaders and protesters into symbols of political perversity. And that requires confronting the underlying reason many men—and some women—view women’s political power as unnatural: because it subverts the hierarchy they see in the home.

It would seem that the personal really is the political; misogyny evidently begins at home.

People Without Power

I’m old enough to remember the 60s slogan “Power to the People!”  And I’ve lived long enough to see “the people”–at least the people who vote– overpowered.

I’ve written periodically about the various ways in which America’s systems have become undemocratic–about gerrymandering, vote suppression, the Electoral College–but Ezra Klein puts it all together in a truly chilling essay for Vox. 

Brett Kavanaugh was nominated to the Supreme Court by an unpopular president who won 3 million fewer votes than the runner-up. He was confirmed by a Senate majority that represents a minority of the country. He was confirmed despite most Americans telling pollster after pollster they did not want him seated on the Supreme Court.

As Klein points out, a constitutional system built in America’s founding era, structured to address the issues of that era, is currently making the country both less democratic and less Democratic.

Since 2000, fully 40 percent of presidential elections have been won by the loser of the popular vote. Republicans control the US Senate despite winning fewer votes than Democrats, and it’s understood that House Democrats need to beat Republicans by as much as 7 or 8 points in the popular vote to hold a majority in the chamber. Next year, it’s possible that Republicans will control the presidency and both chambers of Congress despite having received fewer votes for the White House in 2016 and for the House and Senate in 2018.

Kavanaugh now serves on a Supreme Court where four of the nine justices were nominated by a president who lost the popular vote in his initial run for office, and where the 5-4 conservative majority owes its existence to Senate Majority Leader Mitch McConnell’s extraordinary decision to deny Merrick Garland a hearing. This Court will rule on the constitutionality of gerrymandering, voter ID laws, union dues, campaign finance, Obamacare, and more; that is to say, they will rule on cases that will shape who holds, and who can effectively wield, political power in the future.

When it is all put together, it amounts to a bloodless coup. (“Bloodless” in the sense that the GOP has taken power without force of arms. Not so bloodless if you think of people who are dying for lack of access to medical care although majorities favor Medicare-for-All, or consider the rising suicide rate being attributed to despair, or factor in the deaths that will occur as a consequence of ignoring climate change.)

Sandy Levenson teaches Constitutional law at the University of Texas, and has been warning about waning democracy and American government’s lack of legitimacy for several years. The article quotes him warning “At some point, people will get so angry that they will either talk about secession or start engaging in more direct measures, whether it takes the form of rioting or violence.”

Klein’s article goes into some detail about the original reasons for our unrepresentative systems–the compromises that were “baked into” the Constitution in order to get it ratified. As he points out, any free political system must determine how to ensure that different interests can engage in balanced competition. The problem in our system is that what we balanced for–large and small states– is no longer what’s competing.

The compromises made to calm the divisions between places is exacerbating the divisions between the parties, as Republicans dominate rural areas while Democrats cluster in urban centers.

By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.

It is not difficult to imagine an America where Republicans consistently win the presidency despite rarely winning the popular vote, where they control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned, and where all this power is used to buttress a system of partisan gerrymandering and pro-corporate campaign finance laws and strict voter ID requirements and anti-union legislation that further weakens Democrats’ electoral performance.

For those inclined to dismiss this analysis as overheated, Klein says

If this seems outlandish, well, it simply describes the world we live in now, and assumes it continues forward. Look at North Carolina, where Republican legislators are trying to change the state Constitution to gain power over both elections and courts. Look at Wisconsin, where state Republicans gerrymandered the seats to make Democratic control a near impossibility. Look at Citizens United, which research finds gave Republicans a 5 percentage point boost in elections for state legislators. Look at Georgia, where the GOP candidate for governor currently serves as secretary of state and is executing a voter purge designed to help him win office.

Klein references a number of changes that are being proposed, but whatever we might think of those changes, they won’t even be considered unless Democrats can overcome the odds and win control of both the House and Senate.

Pundits are always insisting that whatever election is imminent is “the most important of our lifetime.”

This one is.

Legacies

Scott Pruitt’s resignation prompted a number of columns devoted to the “legacy” he leaves–if legacy is the right word for “stench of corruption.” Those columns did get me thinking, however. about the “legacies” of other elected officials and political operatives.

Mitch McConnell’s legacy, for example, will include the badly tarnished and diminished legitimacy of Congress and the Court. McConnell’s willingness to ignore the Constitution’s mandate that the Senate “advise and consent” to a Presidential judicial nominee not only besmirched the reputation of the Senate, but added another blow to a series of events–beginning with Bush v. Gore— that have compromised the Court’s reputation for integrity and evenhandedness.

For his part, Trump is likely to leave several legacies–all profoundly negative–if, as we hope and pray, he does at least leave us with a recognizable country. But it is worth noting one of those legacies–the responsibility that he and McConnell share for the Supreme Court’s politicization and corresponding loss of legitimacy.

In a recent New York Times op-ed, law professors Lee Epstein and Eric Posner considered the way in which the growth of partisanship has affected the Court’s reputation, and wondered “whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.”

It hasn’t always been this way.

In the 1950s and 1960s, the ideological biases of Republican appointees and Democratic appointees were relatively modest. The gap between them has steadily grown, but even as late as the early 1990s, it was possible for justices to vote in ideologically unpredictable ways. In the closely divided cases in the 1991 term, for example, the single Democratic appointee on the court, Byron White, voted more conservatively than all but two of the Republican appointees, Antonin Scalia and William Rehnquist. This was a time when many Republican appointees — like Sandra Day O’Connor, Harry Blackmun, John Paul Stevens and David Souter — frequently cast liberal votes.

Today’s Justices are far more predictable, which is to say, far more ideological. And as Epstein and Posner note, it is much easier to assault judicial independence when the public sees the judiciary as just another political body.

The Court loses legitimacy when its reputation as an objective, nonpartisan arbiter of Constitutional fidelity is replaced by a belief that it is a political tool reflecting the priorities of the partisans who selected the Justices.  It’s worse when a majority of those Justices represent world-views held by only a minority of Americans.

In a recent article, Kevin McMahon considered the effect on the Court’s legitimacy.

Since Donald Trump lost the popular vote in the 2016 election, he is, by definition, a minority president, elected by a minority of the voters.

Similarly, I define a “minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.

Consider Gorsuch. He was supported by a majority of senators – 51 Republicans and three Democrats. But the votes earned by those 54 senators only added up to a total of 54,098,387.

The 45 senators who opposed Gorsuch, all Democrats, collected 73,425,062 votes in their most recent elections – a nearly 20 million-vote difference.

There are now three Supreme Court justices – Clarence Thomas, Samuel Alito and Gorsuch – that fit the description of a “minority justice.” And they are the only three in the nation’s history.

Now, there is a possibility of a fourth “minority justice” – the second appointed by a “minority president.”

That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America?

These are the questions that ought to keep our elected Senators and Representatives up at night–but very few of the people we have elevated to the federal legislature seem to know or care about anything other than winning and losing elections.

Their “legacies” will be the abandonment of America’s constitutional framework–and any concept of statesmanship.

 

Legitimacy Cannot Be Stolen

Power can be stolen. Legitimacy must be earned.

I was reminded of the difference by a recent Huffington Post article by Geoffrey Stone. Stone is an eminent Constitutional scholar who teaches at the University of Chicago; I’ve used his texts on constitutional history and analysis both as a law student and more recently as a professor. As he writes,

Throughout my career, I have honored the fundamental role the Supreme Court plays in our system of government. There have, of course, been many Supreme Court decisions with which I’ve disagreed over the years, but I have always respected the essential legitimacy and integrity of the Supreme Court as an indispensable institution in our American democracy.

But now, for the first time in my career, I find myself hesitating. This is not a reflection on the judgment or integrity of any of the current or former justices. It is, rather, a reflection on what the Senate Republicans have done to the fundamental legitimacy of the Supreme Court in the future. By refusing to confirm President Barack Obama’s appointment of Chief Judge Merrick Garland to the Supreme Court, Senators Mitch McConnell, Charles Grassley, and their Republican cronies betrayed our constitutional traditions and undermined a central principle of American democracy. Although they maintained that their unconscionable behavior was “justified” by the fact that the vacancy arose during President Obama’s final year in office, this was a blatantly dishonest assertion. In fact, a long line of presidents have made appointments to the Supreme Court in the final year of their terms, including such historic figures as George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Ronald Reagan.

Those of us in the legal community–Republican and Democrat alike–have pointed to this unprecedented obstruction as additional evidence that American government is broken–that it has become deeply dysfunctional.  As Stone notes, this profoundly un-American behavior was based upon “rank partisanship”–the hope that a Republican President would appoint a judge more to their ideological liking.

In the great tradition of “be careful what you wish for,” however, the actions of these Senators will have had a very unfortunate effect: they will permanently  undermine the legitimacy of anyone who ultimately joins the Court.

Their unconscionable behavior will rightly cast severe doubt on the legitimacy of whatever individual President Trump appoints in place of Chief Judge Garland. Every vote that justice casts in the future will be called into question, because that justice will be sitting on the Supreme Court bench because of nothing less than a constitutional coup d’etat. Through no fault of his or her own, that justice will be seen as an interloper who should never have been appointed to the Court.

Stone reminds readers that the last effort to do a political “end run” around a Court was FDR’s “court packing” scheme, a response to the then-Court’s invalidation of progressive legislation intended to ease the Depression. Even though the Democratic base deeply disapproved of the Court’s rulings, however, Democratic Senators rejected Roosevelt’s plan.

Indeed, even Roosevelt’s Vice-President, John Nance Garner, publicly scorned the plan as unprincipled. In short, those Democrats – those principled public servants – understood that even a crisis like the Depression could not justify so craven a distortion of the traditional procedures and practices of government in order to achieve politically desired ends.

It’s hard to find fault with Stone’s concluding paragraph:

As a sign of the moral corruption that now plagues our nation, though, in this instance Senate Republicans, caring more about outcomes than principles, ruthlessly distorted the advice and consent process in order to attain partisan political ends. That this happened is nothing short of disgraceful. Let us not forget their shameful abuse of authority. And let us not forget that President Trump’s first appointment to the Supreme Court will in fact be an illegitimate interloper who has absolutely no business being the decisive vote in critical Supreme Court decisions in the years and decades to come. By this act, Senate Republicans have undermined the credibility and the legitimacy of an essential branch of our national government. Shame on them.

A Question of Trust

U.S. Senator Chris Murphy has introduced a bill that would require the Supreme Court to develop a code of ethics. (Surprising at it may seem, the high court does not have such a code, although all other courts do.)

The bill was prompted by several recent controversies over judicial recusal, especially a number of cases in which Scalia–who has grown more voluble and intemperate over the years– has spoken publicly on the merits of cases that were highly likely to come before the Court (historically, and under existing codes of ethics, a judicial no-no) and then refused to recuse himself when the cases were argued.

There has also been considerable criticism of Justice Thomas, who has failed to recuse himself in cases where his wife has a clear interest in the result. Justice Kagan has been criticized for sitting on cases in which she was involved to some extent as Solicitor General.

As a scholar of constitutional courts noted on a listserv the other day, “the US is still rare in the world in making recusal of a judge a matter for the personal decision of that judge, without any way to contest it.  In the German Federal Constitutional Court, for example, the decision to remove a judge from a particular case is made by the rest of the judges in that Senate with the judge in question not participating.    We should have some comparable process here.”

Codes of ethics are about more than recusal, of course. They are centered on avoiding even the appearance of impropriety, in recognition that the legitimacy of public institutions and especially the Courts is dependent upon public trust.

Ethics codes typically limit the value of gifts that may be accepted, or forbid their acceptance at all. That includes junkets, generously paid speaking engagements, and other activities or favors that might produce bias. And most codes of ethics require a measure of disclosure significantly greater than is current Court practice.

In a government based on separation of powers, the legislature may lack the authority to tell the Court to clean up its act–and the Court gets the final word on that issue. In a Court as ideologically divided as this one, I suppose decisions about recusal could themselves become politicized. The GOP’s Tea Party wing will probably oppose Murphy’s bill, since most of the shenanigans these days are by conservative jurists. So passage of this measure is hardly a slam-dunk.

That said, it really is indefensible that the Supreme Court exempts itself from ethical principles that apply to other judicial and administrative entities. Even Congress has a Code of Ethics, however honored in the breach it may be.

When Justice Scalia goes duck hunting with a litigant (Dick Cheney) whose case is then pending before the Court; when Thomas sits on a case despite the fact that his wife’s organization is an interested party, I think skepticism about their ability to render a dispassionate verdict is understandable–and foreseeable.

Such behavior erodes the public trust, and it greatly diminishes the stature of the Court.

There is a reason Courts should be–and be seen to be–incorruptable. They are, after all, in the business of disappointing litigants; every time someone wins, someone else loses. If credible charges of favoritism or bias can be leveled, even if untrue, citizens ultimately lose respect for the rule of law.

Judges–especially Supreme Court Justices– used to take great pains to avoid the slightest appearance of impropriety; they used to aspire to be “as pure as the driven snow.” Lately (as Mae West memorably put it), they’ve drifted.