People will look back on this era in our history to see what was known about Donald Trump while Americans were deciding whether to choose him as president. Here’s a running chronicle from James Fallows on the evidence available to voters as they make their choice, and of how Trump has broken the norms that applied to previous major-party candidates. (For a Fallows-led, ongoing reader discussion on Trump’s rise to the presidency, see “Trump Nation.”)
Donald Trump at the United NationsCarlo Allegri / Reuters
American presidents usually address the United Nations General Assembly in the fall—as you can see here, and as Donald Trump did on Tuesday. Sometimes they also do so in the spring*, or on other occasions as the need arises.
American presidents usually receive a respectful hearing at the UN.
- Sometimes it is more than just respectful, as when John Kennedy made his speech in 1961 calling for a new series of nuclear test-ban treaties. (“The events and decisions of the next ten months may well decide the fate of man for the next ten thousand years… And we in this hall shall be remembered either as part of the generation that turned this planet into a flaming funeral pyre or the generation that met its vow ‘to save succeeding generations from the scourge of war.’ ”)
- Sometimes the reception is merely polite, as when Richard Nixon spoke to the UN during the Vietnam war, or Ronald Reagan while pursuing his “Star Wars” / Strategic Defense Initiative program against the Soviet Union.
- Very occasionally the reaction has fallen short even of politeness, as when Hugo Chavez, then strongman of Venezuela, spoke one day after George W. Bush, during the Iraq War. Chavez said that the dais still reeked of sulfur after Bush’s speech, because “yesterday the devil came here.”
But two things were unusual about Trump’s speech on Tuesday.
It was, to the best of my knowledge, the first presidential UN speech that challenged the very idea of international cooperation and standards. Compare Ronald Reagan, 1985: “America is committed to the world because so much of the world is inside America…. The blood of each nation courses through the American vein and feeds the spirit that compels us to involve ourselves in the fate of this good Earth.” And Donald Trump, 2018: “America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism.”
And, it was the only one, ever, to be greeted by openly mocking laughter, including from representatives of America’s closest allies, as David Graham described here. Criticism and disagreement, yes — they go with the territory of representing America’s enormous power. But ridicule is something new. The moment is too obvious to belabor as a symbol, so I simply note it as a fact.
Republican senators who have said anything about this performance: to the best of my knowledge, none.
*To connect this UN theme with the subject of a dispatch yesterday: I happen to know about the occasional springtime schedule because I was working on a UN speech for the then-recently sworn in Jimmy Carter in March, 1977, on the night before Deb’s and my first son, Tom, was born.
This is the same son Tom whose own family news, the arrival of a third daughter, is noted here. More on Tom’s UN-speech background here.
Brett Kavanaugh, before the Senate Judiciary Committee during his confirmation hearing, with his wife, Ashley, seated behind him.Reuters / Jim Bourg
I have been offline, traveling for actual reporting, over the weekend, and reappear to find… argh!!! There is no possible way to keep up. So as a brief time-capsule register of where things stand, six weeks before midterm election day, here are two markers of things that have changed in the past few days.
(1) There is no longer “just one.” The most significant recent development in the Brett Kavanaugh case would appear to be the dispatch from Jane Mayer and Ronan Farrow in The New Yorker, alleging an episode of sexual assault by Kavanaugh when he was an undergraduate at Yale. Why is this significant?
(a) Of all the reporters whose accounts go contrary to official Trump administration claims, from the venerable Bob Woodward to the more recently eminent Ronan Farrow, I am not aware of anyone whose decades-long track record stands up better than Jane Mayer’s. If she has had to retract, apologize for, eat crow about, or otherwise retract significant factual illustrations, I’m not aware of it.
(b) In the etiology of sexual-aggression claims, the offense history very rarely seems to be “there was just that one time.” Either the number of plausible sexual-abuse claims against a prominent figure is zero — against Barack Obama, against George W. Bush, against Kavanaugh’s fellow Georgetown Prep alumnus Neil Gorsuch, etc — or it eventually amounts to a significant number.
Cosby, Weinstein, the gymnastics doctor Larry Nassar, and the like may be extreme cases. But in general the pattern we’ve all learned to expect is: If there is one, there is more than one. Conversely: if the number remains firmly at one, it’s easier to raise doubts about that lone accuser.
With the Mayer-Farrow story, the number of specific allegations against Brett Kavanaugh broke the more-than-one threshold. No one working for Kavanaugh’s confirmation can say so, but this news substantially changes expectations, and apprehensions, about what other claims might yet turn up.
(c) On the expectations front, I’ll lay out my own.
In my reporting life and as a citizen, I’ve watched over the decades many cycles of “rumors” and “questions” about sexual misconduct by prominent (male) figures run their course. Not in every case, but in the vast majority of them, as the evidence finally comes out and mounts up, it has usually weighed on the side of the accuser, not the accused. Where there is smoke, there has usually been fire.
For every celebrity who endures a damaging, false, perhaps fantasized or perhaps malicious sex-related accusation, there appear to be a whole lot more who got away, for years, with long-term patterns of abuse, despite complaints and warning signs. They succeeded in bottling up, tamping down, and generally escaping accountability, mainly because their positions of power meant that their victims didn’t speak up, or were not listened to.
The modern history of pedophile priests is again an extreme case, but it illustrates the pattern I’m describing: that it’s costly, damaging, embarrassing or shameful, and in other ways arduous for someone who has suffered from sexual abuse to speak up against a public figure. Therefore, I realize looking back, I have learned more and more to give the benefit of the doubt to women and men willing to go through the pain of reporting their claims. (I have been thinking frequently of the movie Spotlight, which of course doesn’t directly apply in this case but is about a related power dynamic.)
I am careful to say “benefit of the doubt,” and not “beyond a reasonable doubt,” as would apply in a criminal proceeding. No one should be assumed guilty without a full process like the one Bill Cosby has just gone through, which starts with the presumption of legal innocence.
But of course Brett Kavanaugh is not on criminal trial; he’s being vetted to see whether he deserves one of the most powerful, least accountable, and most temperament-and-fairness-dependent positions in the U.S. government. I have no idea of the underlying truth of any of the complaints about Kavanaugh. But based on what I’ve seen play out over the decades, I feel that at a minimum they should be fully explored and checked out. How can there be any reasonable objection to having the FBI question the witnesses, and take statements from all involved, under oath?
(2) The maximalist defense. Based on transcripts of the interview Fox News did of Kavanaugh and his wife Ashley, I was going to lay out a big explanation of why it is so striking that Kavanaugh is answering his critics with absolute denials.
George W. Bush used to say, “When I was young and stupid, I was young and stupid.” Kavanaugh is not giving himself any such out. He is not referring to embarrassing misunderstandings, or mistakes of immature judgment, or possible vagaries of memory, or decisions he badly rues in retrospect. He is saying that he was literally virginal in high school and college. He has never done anything like this. He is absolutely not this kind of person. He would not ever treat women in this way. The charges are All. Absolutely. False. Every. One. Of. Them.
As an argumentative stance, this is obviously risky, since an absolute claim can be undone by even a single proven counter-example. It’s odd because it’s a mismatch with the ample evidence of serious drinking as part of the young Brett Kavanaugh’s reputation — self-described in his speeches until recently, and by his high-school and college associations. (“He was a notably heavy drinker, even by the standards of that time, and he became aggressive and belligerent when he was very drunk,” James Roche, his freshman roommate at Yale, said this weekend in a statement.)
Also, the stance of complete purity is either inconsistent with, or a creepy complement to, the very aggressively sex-related line of questioning that the 30-something young lawyer Kavanaugh proposed that prosecutor Kenneth Starr ask the incumbent president, Bill Clinton. (Eg: “If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?” That was one of a series of questions Kavanaugh proposed, and Starr had the judgment not to pursue.)
But it turns out that I don’t even need to get that whole explanation started. This morning Caitlin Flanagan published a very powerful and insightful long essay on exactly these themes. It is here, and rather than quoting any of it, I’ll suggest that you read it forthwith, and carefully.
To the best of my knowledge (will gladly update if there are corrections), here are the Republican senators who have clearly called for an FBI investigation of the allegations and the evidence:
Lisa Murkowski, of Alaska, is not yet on that list, because she has given only oblique indications of support. According to NBC, she said on Tuesday morning of an FBI investigation: “It would sure clear up all the questions, wouldn’t it?” She could answer her own question by saying that she won’t vote on Kavanaugh’s nomination until there has been an investigation. As a member of the Republicans’ wafer-thin 51-49 majority in the Senate, she has enormous power to change the outcome here, if she chooses to exercise it. The same is true of every other Republican.)
Members of Congress tee off at the Columbia Country ClubCQ Roll Call via AP
Last night around 1 a.m., I mentioned that a fevered and insanely conspiratorial tweetstorm then online was almost certain to disappear. It was filed by Ed Whelan, a friend of Brett Kavanaugh’s and a prominent figure in conservative judicial circles; it laid out elaborate (but crazy) forensic evidence pointing to one of Kavanaugh’s Georgetown Prep classmates as the likely “real” aggressor in the long-ago attempted-rape case; and it was nuts.
This morning, about 14 hours after the posts originally went up, Whelan removed the several-dozen tweets he had painstakingly put together and replaced them with this:
Of the many questions the episode raises, let me quickly mention just two.
1) Who else was in on this? Anyone following the Kavanaugh-confirmation controversy over the past week would have noticed previews, rumbles, speculation, and excitement among conservative voices about upcoming news that would remove the sexual-assault cloud from Kavanaugh.
For instance, on Tuesday of this week Kathleen Parker ran a column in the Washington Post with the headline “Is there a Kavanaugh doppelganger?”, which was the hypothesis that Ed Whelan laid out. A number of Republican senators and TV pundits said that Christine Blasey Ford, the accuser, might be “mixed up” about the event itself or which young men were involved. And, as Brian Beutler noted, about an hour before Whelan began his dispatches, Ramesh Ponnuru of the National Reviewposted:
Nearly all of the conservative establishment, to its credit, reacted in horror once they saw what Whelan was actually posting. (An exception was Fox and Friends,which on Friday morning, about an hour before Whelan retracted his tweets, was enthusiastically promoting his theory to Fox viewers.) But beforehand many of its members seemed hopeful about a big, new scoop that was about to appear. (Update: in Vox, Zack Beauchamp asks similar questions about whether anyone other than Whelan was involved in hatching the “doppelganger” theory.)
A Democratic figure who has been involved in confirmation battles has suggested, via email, the kinds of questions that senators (and journalists) should be asking of Whelan and others, including some for Kavanaugh when he next testifies:
Did anyone help Whelan compile the extremely detailed personal information he used, in his attempt to identify and blame a specific Georgetown Prep student? Did he really do this all himself?
How did Whelan get the idea that there could have been a similar-looking classmate? How did the whole narrative of “mistaken identity” originate in the first place?
Who Googled the floor plan of the house from a real-estate website, so that it could be used as evidence of the classmate’s alleged guilt? Or determined the home addresses of other students from 35 years ago, in order to place them on a map (as part of an argument about who lived close enough, or too far away, to be involved)?
How did Whelan get the picture, from Kavanaugh's Georgetown Prep yearbook, that he used to ID his other suspect?
What did Kavanaugh know, and when did he know it?
Here is a sample of the “forensic” postings that have now disappeared:
2) Who else might be tweeting on this subject? In particular, Donald Trump, who weighed in on Friday morning:
It is painful to need to point this out, in response to the chief law-enforcement officer of the United States, but: the FBI could not have been involved in this case 35 years ago. The crime, if there was one, would have been under Maryland state law. The call would have gone to the Montgomery County Police. (The FBI, a federal agency—that’s what the F stands for!— is being invoked now because a nominee is being vetted for a lifetime-tenure federal job, and being considered by members of the U.S. Senate.)
And this is, of course, apart from the countless barriers of shame, privacy, despair, pain, lack of evidence, skepticism of police reaction, and fear of family reaction, that leave so many assaults unreported.
A prominent conservative figure backtracks. The most prominent GOP figure plows ahead. 46 days to go.
Way back in Trump Time Capsule #4, when Donald Trump was about to clinch the Republican presidential nomination, I mentioned Trump’s long-standing weakness for conspiracy theories. These ranged from his lunatic suggestion that the father of (then-rival, now supplicant) Ted Cruz had been involved in the JFK assassination, to his “a lot of people are saying ...” suspicion-mongering about the death of Vince Foster, who committed suicide while serving as White House counsel during the Bill Clinton years.
Context point #1: “A lot of people are saying” is Trump’s trademark way of floating usually false information, as in “A lot of people are questioning [Obama’s] birth certificate.”
Context point #2: When Brett Kavanaugh, now Trump’s nominee for the Supreme Court, was an aide to special prosecutor Kenneth Starr in his investigation of Bill Clinton, he personally led efforts to unveil the “real” story of Foster’s death. The historian Sean Wilentz said more about this effort in the New York Times, here.
On Thursday, the modern equivalent of the “Cruz’s dad did it” theory, or the “real” story of Vince Foster, entered the midterm politics of 2018. It did so in the form of a deranged-seeming several-dozen-elements-long Twitter storm by a very prominent conservative figure, who set himself the task of figuring out who “really” waged a sexual attack many years ago on Christine Blasey Ford, the woman who says that the teenaged Brett Kavanaugh did so.
The tweet-storm came from a man named Edward Whelan, and here’s why it merits notice today:
From the Tweet storm.Why this was deranged-seeming. I don’t know how long this Twitter stream will survive, before cooler heads delete it. (Six hours after its publication, it’s still visible, starting here. I’m sure I’m not the only person to have made screen-captures of the successive messages, for when the original disappears.) But it resembles the most fevered scenes of A Beautiful Mind in arraying “evidence” to show that Brett Kavanaugh could not have been at the notorious high school party—and that another person, whom Whelan specifically names, would have been the real attempted-rapist.
Maps to show where the various high-schoolers involved in the case lived; architectural drawings of what Whelan believes must have been the scene of the attempted crime; Zillow-based photos of the interior of this house; high school yearbook photos and current shots likening the appearance of Kavanaugh and the “real” malefactor; a range of other crackpot forensic evidence—this and more is what the messages painstakingly laid out. The sequence ended with a Pontius Pilate-style disclaimer that maybe the non-Kavanaugh person was not really guilty, but the preceding messages said: Stop blaming the future Supreme Court justice! Focus on this other guy. (Christine Ford herself quickly replied, according to the Washington Post: “I knew them both … There is zero chance that I would confuse them.”)
Why this mattered for the Republican establishment. The author, Edward Whelan, is very far from a fringe figure. As Josh Marshall explains here, in a post written in a tone of shock, and with the headline “This Is Nuts”:
“I’m really not sure quite how to capture what just happened. But a major, major player in the conservative/Federalist Society legal establishment in DC just posted a lengthy Twitter thread in which he accuses another alum of Kavanaugh’s high school of assaulting Professor Blasey Ford.”
To similar effect, Brian Beutler, of Crooked Media, wrote:
“To be clear, Ed Whelan is the conservative movement's go-to guy for judicial fights—to run down Democratic nominees and defend Republican ones. The claim that Republican officialdom had no advanced knowledge of his stunt tonight, which he'd previewed for days, is a joke.”
Whelan is the director of the Ethics and Public Policy Center; a one-time Supreme Court clerk for Antonin Scalia; reportedly a friend of Kavanaugh’s; and overall a significant figure within the conservative establishment. None of the members of that establishment, by the way, stepped up this evening to defend Whelan’s version of events. Which leads to…
Why this might matter for Brett Kavanaugh. As many commentators pointed out this evening, a natural question for (Democratic) senators to ask, when Kavanaugh comes back before them, is: Did you know about any of this? The Naval War College professor Tom Nichols put it this way:
Via Twitter
One more note for the day: Donald Trump gave one of his patented rally speeches this evening in Las Vegas. As best I can tell from press reports (including the brilliant real-time lie-reporting from Daniel Dale of the Toronto Star), Trump did not mention that less than one year ago the deadliest gun massacre in American history took place in that city.
Border Patrol agents taking a Central American child into custody, this past June, in McAllen, Texas.John Moore / Getty
Here are some items from the news that barely break the consciousness-barrier, amid the Kavanaugh confirmation fight and other chaos, but that I expect will be considered significant in the history of our times:
(1) Children. Starting back in the Clinton administration, U.S. immigration authorities have been under court supervision for handling any children who are caught with parents or other adults during border crossings. Together the rules for treating children are often referred to as “Flores standards” or “the Flores settlement,” after Flores v. Reno, a case filed back when Janet Reno was attorney general.
The rules are complicated, and you can see more here and here. Apparent violations of Flores, along with basic cruelty, were at the heart of the controversy about separating children from parents at the southern border this past summer.
One important part of current Flores standards is that children apprehended along with adults can’t be held for more than 20 days. Having lost a long sequence of court rulings about its “zero-tolerance” approach and other immigration policies, the Trump administration is now proposing essentially to de-impose the Flores limits, through new regulatory guidance. You can read more about what the changes would mean here. (The new approach is likely to be challenged in court, too.)
(2) The future. Human activity produces roughly five times as much carbon dioxide as emissions of methane. But methane is vastly more powerful as an agent of climate change. You can see the details here and here, but as an approximation methane is at least 80 times stronger than CO2 in its short-term climate effect, and as a recent article put it, “its impact is 34 times greater than CO2 over a 100-year period, according to the latest IPCC Assessment Report.”
An increasing source of atmospheric methane is simple leakage, from the natural-gas (mainly methane) wells that have become an increasing source of North America’s energy supply. From both a business and an environmental perspective, these leaks are sheer waste and inefficiency, in addition to being destructive.
To reduce the volume of escaping methane, the Obama administration proposed a series of anti-leak standards and rules. On taking office, Trump and his team — Scott Pruitt at EPA, Ryan Zinke at Interior, Rick Perry at Energy — said they would delay implementation of the anti-leak rules, or ignore or suspend them. Again they lost a series of court cases. (A federal judge in California said the new policy was “untethered to evidence.”)
This week, in a parallel to the Flores changes, the administration announced that it would just undo the methane policy with its own set of new rules. You can see the details, from the estimable science writer Marianne Lavelle, here. Another clarifying piece is here.
(3) Cancer. Any president is head of the executive branch, and thus structurally the chief law-enforcement officer of the United States.
In an Oval Office interview with John Solomon and Buck Sexton of The Hill, which went online on Tuesday, the chief law-enforcement officer of the land referred to the FBI as “truly a cancer” and said this about how he should have treated its staffers even before he took office:
“If I did one mistake with Comey, I should have fired him before I got here. I should have fired him the day I won the primaries,” Trump said. [Note: Trump held no public office at that time.] “I should have fired him right after the convention, say I don’t want that guy. Or at least fired him the first day on the job. ...
Trump said he had not read the documents he ordered declassified [emphasis added: back story here] but said he expected to show they would prove the FBI case started as a political “hoax.”...
Asked what he thought the outcome of his long-running fight with the FBI, the president said: “I hope to be able put this up as one of my crowning achievements that I was able to ... expose something that is truly a cancer in our country.
***
A freer hand to detain children. Removing controls on environmentally hyper-destructive sheer waste. Working around court rulings toward both those ends — while denouncing the law enforcement structure he is supposed to “take care” to defend.
These things happened while the Kavanaugh case was commanding the news. To the best of my knowledge, the list of Republican senators who have noticed or objected to any of it is this familiar group:
Statement from the White House, with Donald Trump's order that closely protected secret information be made public.Screenshot from White House Press Office
Because these details tend to get lost in the froth, let’s pause to note two extraordinary steps Donald Trump took in the past 24 hours.
One of them is literally unprecedented; the other is a sharp departure from modern norms. I’m not aware of any member of the governing GOP majority objecting to either of them.
They are:
(1) Declassifying FISA warrants and messages from FBI agents. Presumably because he thinks these messages might embarrass people he considers enemies, on Monday Trump ordered the Director of National Intelligence and the Department of Justice (which includes the FBI) to make public “without redaction” a variety of text messages, reports, and even FISA warrants all involved in the Russian-influence probe.
Why did this matter? Because the FISA warrants, the FBI reports, and these other documents presumably contain details on how the government knows what it knows. Who its sources are, what informants and moles it has developed, which surveillance systems work, which enemy codes have been broken. Recall the familiar (though disputed and even disproved) claim that in World War II Winston Churchill let the Luftwaffe bombing of Coventry proceed — rather than evacuate the city, which could have tipped off the Germans to how much the British knew. Whether or not that story is correct (probably not), as a parable it illustrates how important protecting “sources and methods” can be. And in this case Trump decreed: I don’t care.
The “Gang of Eight” within the Congress is supposed to be the bipartisan bulwark against misuse of the intelligence system. Today a “Gang of Four” — the Democratic half of the full-scale octet Gang — protested bitterly against Trump’s decision, and appealed to the FBI and intelligence establishment to ignore it, or slow it down.
“We write to express profound alarm at President Donald Trump’s decision on September 17, 2018 to intervene in an ongoing law enforcement investigation that may implicate the President himself or those around him,” the four Democrats said in their letter. (They are: Senate Minority Leader Chuck Schumer; House Minority Leader Nancy Pelosi; Ranking Senate member of the intelligence committee Mark Warner; and Ranking House member of the intelligence committee Adam Schiff. The four Republicans, who did not sign on, are: Senate Majority Leader Mitch McConnell; House Speaker Paul Ryan; Senate intelligence chairman Richard Burr; and House intelligence chairman (sigh) Devin Nunes.) The letter added:
“The action he has taken… is a brazen abuse of power. Any decision by your offices to share this material with the President or his lawyers will violate longstanding Department of Justice policies, as well as assurances you have provided to us.”
So let’s note for the long-term record: no previous president has done this; no minority-party “Gang of Four” has previously had to complain in such impassioned tones; and no majority-party “Gang of the Missing Four” has as distinctly averted its eyes.
Possible leaks of classified material were a huge theme in the past presidential campaign. The winning candidate has now ordained a leak dwarfing anything contemplated back then. (Update: see more from Natasha Bertrand here.)
***
(2) Refugees. One of the glories of the United States, idealistically and in practical terms, is that it has opened its doors to those persecuted or endangered in their homelands. As my wife, Deb, and I discussed at length in our book, once they arrive, refugees are on average more entrepreneurial, more education-minded, and more law-abiding than the populace as a whole.
One of the stains on America’s record is when it has turned its back and closed its doors to those persecuted or endangered. Of course the MS St. Louisis the most notorious example, but every day there are similar cases.
There are limits to even America’s absorptive capacity, but every president in the modern era has set them higher than Donald Trump has now done. (You can see the historical patterns here. Two recent Atlantic posts go into the trends too, here and here.)
After the warfare in Vietnam and Cambodia, Jimmy Carter substantially raised refugee admissions, to well above 100,000 per year, and large numbers arrived as well early in Ronald Reagan’s term.
Through the first Bush era and the Clinton years, refugees from the former Soviet Union and the Balkans increased, and average annual levels were between 75,000 and 100,000.
Refugee ceilings fell immediately after the 9/11 attacks, but then rose through the George W. Bush and Obama eras, averaging around 75,000 annually. To put it in perspective: this is roughly 1/4500th of the existing U.S. population — a significant absolute number in international terms, but not among the leaders proportional to either population or GDP.
Donald Trump has now set the coming year’s ceiling at 30,000—a one-third cut from last year’s 45,000, and the lowest level since before Ronald Reagan’s time.
I won’t make any more of the moral or practical argument in favor of refugee admission at the moment. Instead I’ll point you to this report by Deb about how refugees have helped invigorate the town of Erie, Pennsylvania. (Plus this.) And I’ll point you to an interactive Esri map, which you can find here, which dramatizes how the flow of refugees into the United States has changed in recent years; where they have arrived; and how many of them (and from where) have settled in any given town, including yours.
Noted for the record, as Jews in America and worldwide are beginning the Yom Kippur fast, and with 49 days to go until the midterm elections.
At the moment, in mid-September—with no way of knowing how the midterm elections will go, or what legal entanglements lie ahead for Donald Trump—we do have one possible gauge of how far the politics of 2018 have actually deviated from previous norms.
It involves the prospects for Brett Kavanaugh’s nomination to the Supreme Court.
Through post-World War II political history, there have been distinct moments when a nomination curdles, or sours—and when the assumption shifts from likely approval, which is the starting point for most selections by most presidents, to likely failure.
In 1987, Ronald Reagan’s pick to succeed Lewis Powell on the Court, a 41-year-old federal judge named Douglas Ginsburg, withdrew from consideration less than two weeks after he was announced, because of an (unbelievable in retrospect) controversy about marijuana use. The complications of sticking with him were piling up too fast. (Previously Reagan had named Robert Bork for this seat; that nomination went down, after a bitter fight, by a 42-58 vote, with 58 voting against him. After Ginsburg bowed out, Reagan turned to Anthony Kennedy—whose retirement this year opened the seat Kavanaugh would hold.)
In 2005, George W. Bush’s pick to succeed Sandra Day O’Connor on the Court, a 60-year-old White House staff official named Harriet Miers, withdrew from consideration three weeks after she was announced, in the face of Democratic criticism about her lack of judicial experience and Republican doubts about her policy views. The fight to defend her seemed not worth the cost. (Samuel Alito was eventually confirmed for this seat. )
In 2009, Barack Obama’s pick as the new Secretary of Health and Human Services, former Senate Majority Leader Tom Daschle, withdrew from consideration two weeks after Obama was sworn in, because of (again penny-ante in retrospect) questions about his failure to declare use of a private-car service as taxable income, and related personal-finance issues. Losing him hurt Obama badly, but at the time the fight to keep him seemed likely to hurt more.
Anyone who has been around politics has seen similar episodes, when opposition starts cresting, and one of three outcomes is in view:
(1) A nominee fights bitterly—and hangs on, as Clarence Thomas did for his seat on the Supreme Court in 1991.
(2) A nominee fights bitterly—and loses, as Bork did in 1987.
(3) a nominee sees defeat impending, and decides to get out of the way (or is moved out of the way) to cut losses and minimize the public humiliation.
If these were normal times, we’d say that option (3) is in view for Brett Kavanaugh.
Twenty-four hours ago, it was news that, at last, one Republican senator had the daring to say: Hold on, what’s the rush with this vote, let’s hear the evidence against Kavanaugh and his response. That was Jeff Flake, of Arizona. Then another, Bob Corker of Tennessee, joined him—and by Monday evening, it had become the conventional view.
That is not good news for Kavanaugh, whose best prospect for success was that 51 Republicans would hold together as a bloc to get him through, fast. This would also make it tough for red-state Democrats facing hard reelection races—like Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, and Claire McCaskill of Missouri—to cast what they know would be a meaningless vote against him.
Every day that passes between now and a Senate vote is a step backward for Kavanaugh.
It’s one more day for audiences to see reruns of the Senate Judiciary Committee’s brutalizing treatment of Anita Hill back in 1991—all men on the committee at that time, all white, all mercilessly hectoring Hill. Arlen Specter was the worst of them, followed by Orrin Hatch (who is still in the Senate, at age 84) and the committee’s then-chairman, Joe Biden, and its current chairman, Chuck Grassley (at 85). If you were too young to see these in real time, or even if you think you remember them, I strongly recommend paying attention when they’re shown on cable. Anita Hill’s composure is unbelievable, and the senators’ smug callousness is … hard to describe.
It’s one more day for witnesses, stories, documents, emails, and complications of every sort to arise. What about, once again, the nominee’s big credit-card debts, and their sudden disappearance? What about his speech with constant (joking) allusions to binge and black-out drinking?
It’s one more day for the most gimlet-eyed political calculators to think: Do we need the stress? Is this fight going to be worth it? If time is no longer on our side, does it make sense just to watch things go wrong, rather than trying a different approach? With a less controversial, more conservative, ideally younger judge—and maybe a woman!
The most gimlet-eyed of all is, of course, Mitch McConnell, who let it be known back in July that he thought that Kavanaugh carried needless personal and political baggage. “Mr. McConnell made clear in multiple phone calls with Mr. Trump … that the lengthy paper trail of another top contender, Judge Brett M. Kavanaugh, would pose difficulties for his confirmation,” the New York Times said in its story 10 weeks ago. “Mr. McConnell is concerned about the volume of the documents that Judge Kavanaugh has created … as well as in his roles as White House staff secretary under President George W. Bush and assistant to Kenneth W. Starr, the independent counsel who investigated President Bill Clinton.”
By cutting its losses with Harriet Miers 13 years ago, the Bush White House ended up with an apparently much more conservative replacement: Samuel Alito. Why—the Republican gimlet tribe will ask—should we keep beating ourselves up with these Kavanaugh hearings, when there are so many other choices we could make?
Those are the calculations that would apply—in usual times.
Under usual circumstances, this evening’s time capsule would say: Things look bad for Brett Kavanaugh.
But in these circumstances? Who knows. We’ll see.
Fifty days to go.
***
Here’s the full-frame version of the KAL cartoon:
From the Baltimore Sun, 1991, courtesy Kevin KAL Kallaugher. http://www.kaltoons.com/
Senator Jeff Flake, of Arizona, shown while seated, but standing up today.Joshua Roberts / Reuters
According to the Washington Post just now, Senator Jeff Flake, of Arizona, who is a Republican and a member of the Judiciary Committee, has said that a vote on Brett Kavanaugh’s nomination to the Supreme Court should be delayed, until his latest accuser (Christine Blasey Ford) can testify.
As the story says:
In an interview with The Post, Flake said that Ford “must be heard” before a committee vote.
“I’ve made it clear that I’m not comfortable moving ahead with the vote on Thursday if we have not heard her side of the story or explored this further,” said Flake, who is one of the committee’s 21 members. Republicans hold an 11-to-10 majority on the panel and Flake’s opposition to a vote could stall the nomination….
“For me, we can’t vote until we hear more,” he said.
Good for Senator Flake. (Assuming he backs this up.)
On the merits, this is not even a close call. As I argued in a long post last night, as David Frum argued today, and as Garrett Epps explained with rich legal-political detail, a rush to judgment is the last thing the Senate should be contemplating with Kavanaugh.
He is being considered for a lifetime appointment to one of the most powerful, and least accountable, roles in American governance. Two very experienced senators (Patrick Leahy and Dianne Feinstein) have directly accused Kavanaugh of lying under oath about his past political activities. If the accusations of sexual aggression are true, then he has lied to investigators and senators about this as well.
I don’t know the underlying truth of any of these matters. But neither do the senators. There is simply no defensible argument, on any front, for rushing to an irrevocable decision whose consequences could last for decades.
(Irrevocable? As I explain in this piece, once a justice is sworn onto the Supreme Court, he or she is effectively above the law. The last impeachment of a justice was in 1805—and that justice, Samuel Chase, stayed on the Court. The evidence about Clarence Thomas has mounted since his rushed confirmation 27 years ago, but it doesn’t matter. Decades? Kavanaugh is 53 years old. Ruth Bader Ginsburg is 85. If he lasts as long as she has, he could be there for eight more presidential races. )
The only argument for a rush, then, is brute-force political power. Senate Majority Leader Mitch McConnell wants to get this vote done now, because he thinks he can. This is of course the same McConnell who refused to have the Senate even consider a nomination that Barack Obama made 10 months before he left office. But 52 days before the next election, McConnell is applying the pressure to get the vote done now:
Now, while the Republicans have a 51-49 Senate majority. (Which, whatever happens in the midterms, they should in any case have through the end of the year.) Now, before any more documents or complications might come out. Now, before accusations of lying-under-oath from senior senators can be explored or adjudicated. Now.
As I’ve mentioned many times in this space, McConnell—and, beyond him, Donald Trump—can get away with what they are doing because not even one member of their razor-thin Republican majority has been willing to stand up to them.
This evening, at least for this moment, one of them has. Respect to Senator Flake.
And I have to amend my list of Republicans willing to stand up for principles and procedure. It would now read:
Jeff Flake
***
UPDATE. Via Politico I see that Senator Bob Corker, of Tennessee, who like Flake is not running for re-election, has now said that the vote should be postponed.
Good for Senator Corker.
The list could read:
Jeff Flake
Bob Corker
***
September 17 update, 12:00 noon: Senator Susan Collins, of Maine, has just called for both Kavanaugh and Ford to testify under oath before the Judiciary committee.
Donald Trump hardly knew Paul Manafort. Except when Manafort was running his presidential campaign. Here they are, with Ivanka Trump, at the Republican convention, in a scene I witnessed personally from the convention floor.Rich Wilking / Reuters
Two days ago, Paul Manafort made his plea-bargain deal with Robert Mueller’s federal investigators. As part of the terms, he says he will cooperate fully and truthfully with the federal team—knowing that his sentencing can be delayed until his “efforts to cooperate have been completed, as determined by the Government.”
As an example of a subject on which he might have useful information to share, I send you back to Trump Time Capsule #71 from the original campaign-cycle series. You see its headline below.
Justice Thurgood Marshall, first African-American to serve on the Supreme Court, whose retirement opened the seat Clarence Thomas now holds.Thomas J. O’Halloran, via Library of Congress
The most cynical decision George H. W. Bush made as president was to nominate Clarence Thomas to the Supreme Court.
The choice was cynical because of Thomas’s race. In 1991 Bush had a vacancy to fill when Thurgood Marshall—the first African American ever to sit on the Court, the man who had successfully argued the historic Brown v. Board of Education case before the Court as a lawyer for the NAACP—decided to retire.
Clarence Thomas’s views were the opposite of Marshall’s on just about every front, as Juan Williams (then of the WashingtonPost, now best known from Fox News) explained in an Atlantic profile several years before Thomas’s nomination. But Bush knew that liberal critics of Thomas’s conservative views would be in a bind. If they opposed him—a graduate of Yale Law School, who had started out as a poor child in the segregated South—they would of course be blocking a black successor to America’s first-ever black justice.
Thomas himself left no doubt about this framing of events, saying in his opening statement to the Senate Judiciary Committee that criticism of him had amounted to a “high-tech lynching for uppity blacks who in any way deign to think for themselves.”
Bush’s cynicism came through in his announcement of the Thomas choice, implausibly claiming that “the fact that he is black and a minority has nothing to do” with the selection. The only reason for the choice, he said, was that Thomas was “the best qualified [candidate] at this time.”
The “best qualified” claim was risible. Thomas was 43 years old and had spent only a year-plus as a judge. In an editorial opposing his confirmation, TheNew York Timessaid:
If the Thomas nomination is to be judged on the merits, it fails.
The fault, in the end, is not that of the nominee but of the man who nominated him … By nominating this black conservative, President Bush serves a narrow partisan interest when the public has a right to expect him to nominate a lawyer or judge of proven distinction.”
But of course Thomas made it through a bitter confirmation process. He won approval from the Senate on a vote of 52-48 and took what had been Thurgood Marshall’s seat at age 43. He is only 70 years old now and conceivably could be on the Court through several more presidencies. Already he has been a fifth vote in such history-changing 5-4 decisions as Citizens United in 2010 (which ushered in nearly limitless money in politics); Heller in 2008 (which ushered in the novel concept that Second Amendment protection for a “well-regulated militia” extended to any individual who wanted to own firearms); and Bush v.Gore in 2000 (which ushered in … )
For more assessments of what Clarence Thomas has meant as a jurist, I refer you to my Atlantic colleague (and real-world law professor) Garrett Epps, here, here, and here, among other sources. Let’s focus for the moment on what his case means about the confirmation fight immediately in prospect, that of Brett Kavanaugh.
The Thomas and Kavanaugh cases differ in some obvious ways. Thomas was poor, black, and underprivileged by almost every measure. Kavanaugh, whose father was a long-time D.C. lobbyist who was paid $13 million in 2005, grew up on the opposite side of most calculations of racial and economic advantage. In terms of experience, Kavanaugh has been a federal judge for more than a dozen years, and has been rated “well qualified” for the Supreme Court by the American Bar Association, which the novice Thomas was not.
The similarity of the cases is the “now or never” nature of the criticisms of these candidates as people, and the consequent time pressure on their hearings. This is entirely apart from questions of substantive jurisprudence, for instance how Kavanaugh might rule in Roe v. Wade or on presidential powers. Instead these are questions of honesty, at several levels.
In Clarence Thomas’s case, the strongest argument against him as a person, and the one that provoked his angriest response, involved alleged sexual harassment—and whether he was being truthful in denying it. At his hearings, his former colleague Anita Hill was the only alleged victim of his behavior allowed to testify. The senator who then chaired the Judiciary Committee, Joe Biden (the Democrats held both the Senate and the House), notoriously prevented several other women from testifying, and treated Hill in a dismissive manner that many years later he apologized for.
In the decades since that hearing, accumulating evidence has piled up on Anita Hill’s side of this story (and the other women’s), and against Thomas’s. If you’d like to review the details, start with this recent piece by former New York Times editor Jill Abramson, who with Jane Mayer wrote a well-known book about the case; or a post by Jay Kaganoff, who has written for Commentary and National Review. In that article, called “Fellow Conservatives, It’s Time to Call on Clarence Thomas to Resign,” Kaganoff said that the mounting evidence had changed his mind. He concluded:
I believe Anita Hill. I believe that Clarence Thomas abused his authority to sexually harass a woman who worked for him. And lied about it. And smeared his accuser.
And got away with it.
“Got away with it” is the crucial point here. The “get away” / “don’t get away” decision point comes before a Senate vote, not ever afterward. Once a person is confirmed to the Supreme Court, he or she is, in practical terms, beyond all future accountability.
In principle, justices “should” recuse themselves from cases in which they have a potential conflict of interest. But no one can make them do so. Clarence Thomas’s wife, Ginni, is a long-time and highly paid lobbyist for right-wing political causes. To the best of my knowledge (I welcome new info), this has not ever led her husband to recuse himself from a case. As many news reports have noted, Brett Kavanaugh has been notably coy about whether he would recuse himself in cases involving the legally embattled president who is now appointing him. Obviously he “should” step aside in such instances—as Elena Kagan has recused herself in some cases involving the Obama administration, for which she was solicitor general. But absolutely no one could force him to do so, if he decided otherwise.
Also in principle, justices, like presidents, can be impeached. But this is even rarer for the Supreme Court than for the White House. It’s happened to only two presidents (Andrew Johnson and Bill Clinton), and been threatened for a third (Nixon, just before he resigned). For the Supreme Court, it happened only once, in the early 1800s. Again, for practical purposes, whatever vote the Senate is about to hold on Brett Kavanaugh is the vote on whether he’ll be on hand through his 50s, 60s, 70s, 80s, or however long he is able to serve. And the 51 Republicans under Mitch McConnell’s guidance in the Senate are rushing to lock this in while they can. (These are mostly the same people who followed McConnell’s lead in denying a hearing to the Obama nominee Merrick Garland through nine full months.)
They want to get the vote done now—while they still have a 51-49 vote majority in the Senate, before the mid-term elections and whatever they might indicate about Donald Trump’s standing, before further legal ramifications from the Mueller probe. If they can get him in, he’s in.
***
How is this connected to Clarence Thomas? I explicitly do not imply a connection in the most obvious way: that the recent allegation about sexual misbehavior by Kavanaugh, back during his high school days at Georgetown Prep, is in any way comparable to the squelched multi-witness case against Clarence Thomas. I have no idea what to make of this claim about Kavanaugh—except that it seems worth listening to Anita Hill, who has just said that the charge should be considered in “fair and neutral” conditions, rather than in a partisan-driven rush.
The circumstances that to me resemble Clarence Thomas’s involve two other aspects of Kavanaugh the person, which the Senate can consider during a confirmation vote—but never again.
One involves his truthfulness under oath. As I have written before, anyone active in D.C. journalism in the 1990s (as I was, for the Atlantic and as editor of U.S. News) is familiar with Kavanaugh’s name. Back then, while in his early 30s, Kavanaugh was an active partisan member of Kenneth Starr’s investigative staff, working on president Bill Clinton. David Brock, at the time a fierce right-winger (and critic of Anita Hill), has written about how Kavanaugh was a fellow warrior in these political crusades. Washington journalists knew Kavanaugh as one of the more press-available members of Starr’s staff. Then, in the George W. Bush administration, Kavanaugh was White House staff secretary and, like anyone in this job, involved in both politics and policy.
During his confirmation hearings for the D.C. Circuit Court 12 years ago, Kavanaugh denied under oath that he had participated in certain specified partisan fights. Two senior, hyper-cautious Democratic senators—Patrick Leahy, and Dianne Feinstein—have, along with others, now come out with statements saying that they believe Kavanaugh was lying under oath in 2006, and is doing so again now.
Was he? This matters.
Every modern-era judicial nominee has mastered the art of dissembling, and pretending to have a completely open mind and a “I just call the balls and strikes” objectivity about every controversial issue.
But actual lying is something different. Clarence Thomas’s interlocutors believed that he was lying about Anita Hill, and the intervening years make it more likely they were right. This is the first time I’m aware of, since the Thomas hearings, in which senators opposing the nomination have come out and said: This nominee is lying under oath. It is worth knowing the truth before the now-or-never vote is cast.
Abe Fortas, while serving on the Supreme Court. (Marion S., Trikosko, via Library of Congress)
The second question involves finances. There’s been only one genuine impeachment of a Supreme Court justice, back in 1804. But the threat of impeachment convinced another justice, Abe Fortas, to resign, in the Lyndon Johnson era.
The cause of Fortas’s problems was what now seem like penny-ante financial complications. A $15,000 fee for some seminars, news of a $20,000 annual retainer from a Wall Street figure.
Sure, that was 50 years ago, so you have to allow for inflation. But by comparison, Brett Kavanaugh has some major financial gray-areas in his recent past. The very large credit-card debts, suddenly paid off? As David Graham put it in the Atlantic:
The fact remains that Kavanaugh suddenly cleared at least $60,000 and as much as $200,000 in mysterious debt over one year—sums large enough that senators might well want to know who the sources of the payments were.
Maybe this all is nothing. But the Senate is ramming through a vote before anyone knows what’s there. And—the crucial point—if information comes out about his finances, or his truthfulness, or anything even one day after he is sworn in, it will be too late. As with Clarence Thomas, he’ll be there, to stay.
And as for the number of Republican senators who are saying: Wait a minute, let’s take our time, it matters to know the truth before giving someone a job for life? What is the rush?
Here’s the list of their names:
52 days to go.
Update: This morning, September 16, the Washington Post published an editorial (i.e., editorial-board statement, not an individual op-ed) with the title “The Senate Should Delay Voting on Brett Kavanaugh.” It says:
Republican efforts to rush through Mr. Kavanaugh have prevented a fair weighing of his nomination. The circumstances demand that Mr. Kavanaugh’s confirmation be delayed.
Suppose Brett Kavanaugh ended up with exactly 51 bloc-GOP votes on his side. Have you perhaps wondered how many votes the eight current justices received? Wonder no more. The tally also heightens the similarity in the Thomas and Kavanaugh cases:
General Joseph Joffre, in the center, around the time of his successful command of French troops at the First Battle of the Marne in World War I. Behind him is General Philippe Pétain, revered for his service during that war, later reviled for his figurehead leadership of France's 1940s Vichy regime. Marshal Pétain is the guiding spirit of this Midterm Time Capsule series.George Grantham Bain Collection, Library of Congress
As I write, the national news is dominated by the arrival of Hurricane Florence, and the political news has emphasized Donald Trump’s reaction to this event and last year’s Hurricane Maria. Other Atlantic pieces lay out some of the problems with Trump’s response: for instance, one by David Graham here and others by Vann Newkirk here and here. My purpose this evening is to contrast the way this president is reacting to a natural-disaster challenge with what his predecessors have done.
Let’s review the chronology:
On Tuesday, September 12, Donald Trump awarded himself “A pluses” for his administration’s hurricane-response efforts in Florida and Texas. In a tweet he also said that his team “did an unappreciated great job in Puerto Rico, even though an inaccessible island with very poor electricity and a totally incompetent Mayor of San Juan). We are ready for the big one that is coming!” That big one is of course Hurricane Florence, which as of this writing is beginning its landfall on the Carolina coast.
Via Twitter
This morning, September 13, Trump sent out Tweets asserting that reports of large-scale casualties in Puerto Rico were hype and faked—and that the fakery was part of a scheme to “make me look as bad as possible.”
Via Twitter
What this shows about Trump is familiar. He is unbounded by fact. He is incapable of understanding any event except through the prism of how it makes him look. He cannot even feign the sober selflessness expected of leaders of any organization. He …. well, he is himself.
But this is worth noting for the record as it underscores two points. One involves Trump’s further departure from the norms of all previous presidents. The other involves the response of the supposedly co-equal legislative branch.
The office: Like it or not, consciously or by instinct, all previous presidents have tried to do two things after taking office. The first is to expand the base. Or at least to try.
Through all of America’s presidential elections, only once has the winning candidate received as much as 61 percent of the popular vote. That was Lyndon Johnson, who got that 61 percent against Barry Goldwater, in 1964. FDR against Alf Landon in 1936, Richard Nixon against George McGovern in 1972, and Warren Harding against James Cox in 1920—these were landslide elections that still fell short of LBJ’s record, at just around 60 percent of the vote.
All the other winning candidates got less. This seems obvious, but focus on what it means: Every new president takes office knowing that 40+ percent of the public wishes he hadn’t won. In response, every one of them has at least tried to court some people from the other side.
The long litany of inaugural addresses, which you can peruse at the invaluable UC Santa Barbara American Presidency Project site, contains one example after another of new presidents trying to expand their support. For instance: Jimmy Carter’s inaugural address, which I helped work on, devoted its very first line to thanking Carter’s vanquished opponent, Gerald Ford, “for all he has done to heal our land.” This was controversial at the time, because the “healing” included Ford’s decision to pardon Richard Nixon for Watergate offenses, rather than expose a former president to possible trial. The extra edge was Carter’s awareness that the pardon had hurt Ford politically, and increased the chances it would be Carter rather than Ford taking the oath that day.
There are countless other examples, but the main point is: out of decency, out of political calculation, out of the primal political-psychology impulse to be liked, and perhaps too because they have been sobered by the responsibilities of office, nearly all presidents start out trying to be unifiers. On the campaign trail, they spoke about the opponents as them. Once in office, they try to talk about us.
The language of us is foreign to Trump. When applied to the U.S. citizens who live in Puerto Rico. When applied to traditional U.S. allies who are part of NATO. When applied to the elected officials of another party who share governing responsibility. When applied to anything. In all these cases, it’s simpler: me, and them. The theme of the reprises of his campaign rallies, 20 months into his time in office, is: I won! Those losers lost!
Does this seem unusual? That’s because it is.
The other duty that previous presidents recognize as falling to them involves the emotional, ceremonial, inspirational, and even parental responsibilities of being the symbolic head of the national family. At moments of national stress or tragedy, most previous presidents have risen to this responsibility without even being told that they should do so.
After the space shuttle Challenger blew up, Ronald Reagan gave a brief, moving speech what this meant for the country as a whole. (“Nancy and I are pained to the core by the tragedy of the shuttle Challenger. We know we share this pain with all of the people of our country. This is truly a national loss.”) Bill Clinton did something similar after the terrorist bombing of a government building in Oklahoma City. George W. Bush did so in his address to Congress nine days after the 9/11 attacks. Barack Obama, after the Charleston church shooting. You name a president, and a historian can locate some example of that person trying to act as head of state (not party), and as leader of the national family.
Every president, except this one.
The absence of that instinct—to unify, to heal, to reassure, to embolden—is the most notable aspect of Trump’s response to anyone else’s suffering.
Checks and balances: One of Congress’s supposed powers and obligations involves “oversight” of this executive branch. That is: hearings, investigations, and other ways of determining how members of the Executive Branch are carrying out their jobs.
At their highest level, these have involved public sessions like those that Senator J. William Fulbright, of Arkansas, held about the Vietnam War in the 1960s. Or that Senator Frank Church, of Idaho, held about excesses of U.S. intelligence agencies in the 1970s. Or that Senator William Proxmire, of Wisconsin, held about defense contractors in the same period. Or that Senators Sam Ervin, of North Carolina, and Howard Baker, of Tennessee, held about the Watergate scandal.
At their most tendentious, they have included spectacles like those of the House Un-American Activities Committee in the early Cold War era, under Representative Martin Dies of Texas. Or the two-year-long proceedings of the Select Committee on Benghazi, under Representative Trey Gowdy of South Carolina. Or the multi-year probe of the Obama administration’s “Fast and Furious” program, under Representative Jason Chaffetz of Utah.
In short: Congress likes to hold hearings. Right at this moment it has a situation in which many thousands of U.S. citizens died after a natural disaster; in which a similar disaster is in prospect; in which news reports have highlighted possible fraud or mismanagement in relief efforts. After the Hurricane Katrina disaster under George W. Bush, a then-Republican-controlled Congress authorized a set of bipartisan hearings into what had gone wrong.
This time?
Here is a list of House or Senate committee chairs who have announced this year that their committees will launch investigations of what happened in Puerto Rico (to spell it out, with GOP majorities, all committee chairs are Republicans):
(One Senate committee held a day of hearings about Puerto Rico ten months ago. Remember: “Fast and Furious” hearings and investigations went on for more than five years.)
And here is a list of GOP senators who are not committee chairs but have called for such hearings in response to Trump’s comments, or for public explanations from the president:
The famous "Gerrymander" cartoon, drawn by Elkanah Tisdale and published in the Boston Centinel in 1812, showing an unfair districting map drawn by Massachusetts governor Elbridge Gerry.Wikimedia
Back during the 2016 campaign, I put out 152 installments of the Trump Time Capsule series, chronicling what was known about this man at just the time the Republican party was deciding to accept (and then embrace) him as its nominee, and as the states of Michigan, Wisconsin, and Pennsylvania were delivering him an Electoral College win.
I put it that way as a reminder that if a total of under 100,000 votes in those three states had gone the other way—about 44,000 in Pennsylvania, 23,000 in Wisconsin, under 10,000 in Michigan, together totaling about 1/1500th of the national electorate—then the Electoral College result would have matched the popular vote, and Donald Trump would never have taken office. And I emphasize this point to mark an underappreciated political-consciousness shift:
Until November, 2000, no living American had any reason to view the “Electoral College versus popular vote” distinction as anything other than a quaintly antique curiosity, since the most recent time there’d been any difference in results was back in 1888. That was before cars or airplanes had been invented; when not even one U.S. household in 100 had electricity; when most Americans lived on farms; and when the right to vote was mainly limited to white males.
Through modern America’s 20th-century rise, citizens and politicians alike, Republicans and Democrats and others, assumed that, whatever the theoretical oddities of 18th-century drafting, the U.S. would in reality function like the many other democracies it inspired, and base public office on public support. But now this era’s Americans have become inured to a minority-rule system that is outside the historical norms for a country where protection of minority rights was an important founding concern.
The brand-new print issue of The Atlantic, available online today (but Subscribe!), is all about the structural contradictions in modern democracy, and why it may be more imperiled around the world than many Americans would like to think.
The U.S. version of representative democracy has always involved a careful calibration of the balance between direct-democratic popular sentiment, and deliberately less-democratic buffers. These range from the original intention of the Electoral College (to ensure that the populace didn’t choose the wrong person, and that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications”), to the Senate’s supposed function as a more deliberative balance to the curb-to-curb excesses of the House.
But modern developments have pushed the U.S. toward a predicament in which it has all the defects of a non-democratic, non-majoritarian system, but without any of the supposed benefits. Consider:
Two of the past five presidential elections—versus zero of 27, from 1892 through 1996—have gone to the candidate who lost the popular vote. Both of those majority/minority presidents—George W. Bush in 2000, and Donald Trump in 2016—governed as if they had won FDR- or Reagan-scale mandates.
The 51 senators who now make up the GOP’s governing majority represent about 30 million fewer constituents than do the 49 Democrats and independents. And thanks to gerrymandering and similar factors, a 1 percent GOP edge in House of Representatives voting in 2016—just over 63 million total votes for Republican candidates, versus just under 62 million for Democrats—translated into a 47-seat majority in the House.
These House and Senate measures are of course imperfect—vote turnout varies in contested House races versus safe seats, and I’m doing the Senate tally by assigning each Democratic or Republican senator half of his or her state’s total population. The Democratic total for the Senate comes to about 180 million people; the Republican, to about 150 million. But the figures are in the ballpark, as indicators of the gap between raw popular sentiment and the current governing balance of power. As applied to the themes of The Atlantic’s new issue, they illustrate a more and more widespread and taken-for-granted shift from minority protection to minority rule.
I mention these disproportions to introduce a Time Capsule series for the 55 days between now and the 2018 midterm elections. It will focus on the 51 people who have disproportionate power. Unlike the other 330+ million Americans, members of this group could do something directly to hold Donald Trump accountable for what nearly all of them know is his reckless unfitness for office—but who every day choose not to act.
Those 51 are, of course, the Republicans who make up Mitch McConnell’s current Senate majority. What could they do? I’ve laid out the basic case here, but in brief:
Any one senator, of majority or minority party alike, has vast power to hold up the Senate’s business in order to get his or her way—on a point that really matters to the senator. The filibuster is one obvious tool. Ever seen the old movie Mr. Smith Goes to Washington?Ever watch Rand Paul try to hold up renewal of the Patriot Act? Ever watch Ted Cruz hold the floor for 21 straight hours, to slow down Obamacare? Ever hear about Tom Cotton putting a personal hold on an ambassadorial nominee—waiting it out until the nominee died? These give you an idea of what even one senator can do—if it matters.
Any one senator, who happens to be a committee chair, is in a very strong position to: hold hearings, issue subpoenas, and generally direct public and governmental attention to an issue. In the House, think of Representative Trey Gowdy, and what he did for years with the Benghazi hearings. Think of Devin Nunes. In the Senate, think back to what J. William Fulbright, as chairman of the Senate Foreign Relations Committee, did with his hearings on the Vietnam war—a war being carried out by his own party’s president. And think then of the current chairman of that committee, Senator Bob Corker, who is not running for re-election and thus in theory has nothing to fear from any opponent, PAC, or donor.
Any two senators could decide, temporarily, to declare themselves independent and “caucus with the Democrats” and thus shift operational control of the Senate from Republican hands to the Democrats’. The chairmanship of every committee would change. So would the majority lineup in every one of those committees. Hearings, subpoenas—these could be used to call Trump to account, rather than to avert public eyes.
The two senators who had thus shifted control could still vote with Republicans on issues they cared about, from budget matters from the Kavanaugh nomination. But they could switch the machinery of this powerful part of the legislative branch back toward the check-and-balance function that at least two of them know is necessary. (At least two? Think of what Jeff Flake has said, and Bob Corker, and Ben Sasse.)
But 55 days before the election, not a one of these 51 people has dared act. Not after the “anonymous” op-ed in The New York Times; not after Bob Woodward’s Fear (and the dozen previous books to similar effect); not after … anything.
One of the senators I’ve often mentioned as an example of talking a lot, but doing very little to stand up to Trump, recently phoned me up, unhappy. “OK, it’s easy to criticize, but what exactly do you expect me to do?” he asked. I said, “Of course I’m not a legislator. But it looks from outside as if you could hold a hearing. Or hold up something the administration wanted. Or even—even—vote with the other side, if you thought the danger was really as great as you say.”
I inferred an “oh, sure” eye-roll through the phone line. The senator pointed out that steps like those would represent a total challenge to the party. The lesson I took was that if senators are going to think of themselves as party loyalists apart from anything else—apart from local concerns in their state, apart from historic positions of their own party, apart from what their own judgment said, apart from anything except what Donald Trump wants—then voters should rationally make their choices on party-ID above all. A Republican in the Congress will stand alongside Trump, whatever direction Trump goes. A Democrat may challenge him. That’s the choice.
Will anything about GOP bashfulness change in the next 55 days, or through the month-plus after that in which this Congress will still have power? Will one of them act, or even two?
I don’t know, but as with the original Time Capsules I’ll try to record this every day or two, for the long-term record. History is being made in real time.