“Scalia’s Boring Legacy”: He Simply Became A Reliable Tool Of Retrograde Social Conservative Orthodoxy And Corporate Power
I was determined yesterday not to comment on Justice Antonin Scalia’s legacy on the Supreme Court, choosing to focus instead on the political implications of the vacancy. I remain committed to that, in large part because the man only barely passed away and I feel that anything I might say about his impact on law, culture and jurisprudence would be tinged with inappropriate (?) negative passion I might later regret.
Fortunately, I don’t have to. Back in 2014 here at Washington Monthly, Michael O’Donnell wrote a fantastic book review of Bruce Allen Murphy’s “Scalia: A Court of One,” that says most of it for me:
Somewhere in the mid-2000s, Scalia ceased to be a powerhouse jurist and became a crank. He began thumbing his nose at the ethical conventions that guide justices, giving provocative speeches about matters likely to come before the Court. He declined to recuse himself from cases where he had consorted with one of the parties—including, famously, Vice President Dick Cheney. He turned up the invective in his decisions. His colleagues’ reasoning ceased to be merely unpersuasive; it was “preposterous,” “at war with reason,” “not merely naive, but absurd,” “patently incorrect,” and “transparently false.” More and more, he seemed willing to bend his own rules to achieve conservative results in areas of concern to social conservatives, like affirmative action, gay rights, abortion, gun ownership, and the death penalty. Above all, Scalia stopped trying to persuade others. He became the judicial equivalent of Rush Limbaugh, who has made a career of preaching to the choir. But Limbaugh is not merely a shock jock; he is also a kingmaker. Scalia’s position on the bench precludes any such influence. As a result, he has more fans than power.
The conservative movement is trying to treat Scalia as a giant of law and one of America’s greatest and most influential jurists. I’m not so sure about that. His position on the court and his votes in some crucial 5-4 decisions have obviously made a gigantic impact, but it’s not at all clear that his arguments will have had generations-long precedent-carrying weight. Particularly toward the end of his career he simply became a reliable tool of retrograde social conservative orthodoxy and corporate power. Scalia ceased to be interesting because you always knew exactly where he would stand, and that every year he would say something eyebrow-raisingly nasty and clueless about evolution, the sexual revolution or some similar topic. In that sense, I would argue that John Roberts has actually been more interesting and influential recently because one can at least speculate on potentially unconventional arguments and stances he might take.
In the end, what many characterized as Scalia’s incisive wit and questioning simply became boring, because it was always in the service of the same agenda, rendering it devoid of truly honest insight. Scalia simply became as boring as your conservative uncle at Thanksgiving. As O’Donnell says:
Scalia’s fall has been loud and it has been public. He is the Court’s most outspoken and quotable justice, and whether he is flicking his chin at reporters or standing at the lectern attacking secular values, he makes headlines. So when he was passed over for the position of chief justice in 2005, the legal world noticed. President George W. Bush had cited Scalia as well as Clarence Thomas when asked as a candidate to name justices he admired. Yet when Rehnquist suddenly died, Bush did not seriously consider elevating Scalia. “Nino” had rarely demonstrated leadership in assembling or holding together majorities; he had alienated every one of his colleagues at one point or other. His flamboyant antics off the bench might compromise the dignity of the office of chief justice. He would be the devil to confirm. Bush nominated instead John Roberts, an equally brilliant but far more disciplined judge, and one who was better suited to the responsibilities of leadership. After that, Scalia stopped playing nice and started using real buckshot.
I understand and can sympathize with how upset conservatives are about their loss and about the potential for the shifting of the ideology of the court. But let’s not pretend that the court lost a legal giant on the level of Brandeis, Holmes or Marshall. It didn’t.
By: David Atkins, Political Animal Blog, The Washington Monthly, February 14, 2016
“The Old Rules Are Out The Window”: America’s Political Parties Are Just Tribes Now
When it comes to politics, in 2015 we witnessed nothing less than a paradigm shift. The old rules are out the window. Technology and changing mores have conspired to lower barriers of entry—and acceptability. Gatekeepers no longer exist. What we have right now is closer to direct democracy than we’ve ever seen, and our civilization is regressing as a result.
One party (the Democrats) already represents the liberal half of the nation. The other half seems to consist of modern, Buckleyite conservatives, but also an increasingly large horde populist, nationalist, individualistic Americans—who now have a megaphone and a vessel in the form of Donald Trump.
Times change, and political parties adapt or are replaced. And make no mistake; if the Party of Lincoln becomes the Party of Trump, it would essentially redefine what it means to be a Republican. Conservatism, a coherent political philosophy, looks as if it’s being replaced by messy right-wing populism.
Just as the political parties sorted themselves out so that there are no more “conservative Democrats” or “liberal Republicans,” I fear we may be entering a new stage where there are essentially two distinct political tribes: One tribe consists of minorities and educated elites, while the other tribe increasingly consists of working-class whites.
The trends that brought us this situation have been in existence for decades, but 2015 may be remembered as the year when we broke apart, and political differences became primary cultural signifiers. Disagreements about ideological principles, or even policy preferences, seem to be taking a back seat to identity politics. It doesn’t matter what you believe in so much as what grouping you belong to, and how willing you are to fight for the sliver of America you represent. 2015 was the year of tribalism. Our politics are less high-minded than ever.
If tribes strike you as primitive, it’s not just you. Tribes tend to assign leadership, not based on experience or wisdom, but based on strength. Much of what we are witnessing today is very base (no pun intended) and essentially comes down to machismo: The other guys are out to get us so we need our toughest guy to get them first. This is the major rationale for Trump supporters, who see him as an “alpha” in a sea of wishy-washy Beltway insiders.
Conservatives once hated identity politics and victimhood—but then again, we once supported free trade, too. Perhaps our disdain for tribalism was always a high-minded, yet doomed, effort to suppress the natural, carnal state of a fallen humanity. You and I may view politics as being about ideas and human flourishing, but a lot of people believe it’s really about power—about making sure scarce resources are allocated to “our” people.
Although I didn’t see the Trump phenomenon coming, I think I sensed the populist zeitgeist that led both to him and to this larger breakdown into tribes. Here’s something I wrote back in April for the Beast—long before Trump was in the race:
…I think there is a huge underserved constituency in the GOP—and that constituency is what might best be termed populist conservatives. These folks tend to be white and working-class and who feel they’ve been left behind in America. They are culturally conservative—but they also want to keep government out of their Medicare.
Mitt Romney was arguably the worst candidate Republicans could have ever nominated to appeal to this constituency. But while candidates like Huckabee and Rick Santorum flirted with going full populist, something always seemed to keep them from really doubling down on it.
… The last time someone really tried this was when “Pitchfork” Pat Buchanan, and then Ross Perot, ran in 1992. It resonated then, but that was before the “giant sucking sound” really kicked in. Whether it’s globalization or immigration—or whatever “-ation” might have taken your job—it stands to reason that the same grassroots phenomenon that helped Buchanan and Perot tap into an underserved constituency might be even more potent today
I still think there’s a decent chance that this fever—which has been aided by an economic downturn, Obama’s election, and the rise of ISIS—will break. And I think that the rules governing the way the GOP allocates delegates will probably benefit someone who is a more mainstream and thoughtful conservative, like Marco Rubio.
It’s easy to see how a Rubio presidency could help reorder things in a different way—in a way that I believe would be healthier both for America and in terms of making sure conservatism can survive and thrive in the 21st century. A Rubio presidency would have the potential to grow the conservative movement by modernizing (not moderating) it—to make it more appealing to Hispanics, urbanites, and millennials. If conservatism is about ideas like freedom and entrepreneurship, not merely cultural signaling (the stereotype being that the definition of a conservative is a white guy with a gun rack), then there’s no reason the guy who orders an Uber shouldn’t be a conservative.
But this only works if the conservatives want to actually grow their numbers by choosing a modernizer. The last CNN/ORC poll I saw suggested that if you add Trump’s supporters together with those of Ted Cruz and Ben Carson, you were at about two-thirds of the national GOP primary voters. The rejection of candidates favored by the GOP establishment this past year has been unprecedented. The Republican base, at least right now, is rallying to the candidates who embrace this new tribalism.
Earlier, I said the rules have changed. And, indeed, they have. Conservatives used to care about electing men and women who have wisdom, experience or expertise, and will comport themselves in an appropriate or “statesmanlike” manner, and who have a conservative temperament. They were deeply invested in defending abstract concepts like a culture of life, the rule of law, and religious liberty, while also worrying about things like unintentional consequences. They wanted to unleash the power of a free market (of products and ideas) to encourage human flourishing.
These are the hallmarks of conservative philosophy, consistency, and a coherent worldview—something that looks increasingly passé to Republican voters.
In some cases, much of today’s GOP base is skeptical or even hostile to these conservative values. For example, they believe a conservative temperament is an antiquated concept guaranteed to produce weak leaders who won’t fight, and that conservatism as a temperament was essentially designed to fail. How else can you explain the near-triumph of contemporary liberalism, and the fact that the GOP has only won the popular vote in a presidential election once since the end of the Reagan era?
It’s hard to summon people to their better angels when those people feel aggrieved. It’s hard to advise those people to “keep your head when all about you are losing theirs”—when there are literal beheadings taking place around the globe. The problem is that people like me are calling for civilized behavior and for modernization at a time when Republican voters want to get medieval. 2015 belonged to Donald Trump. But the real question is this: who will own 2016?
By: Matt K. Lewis, The Daily Beast, January 2, 2015
“Angrier And More Toxic”: Donald Trump And The Revenge Of The Radical Center
The GOP may soon recover from the Donald Trump scare. Despite his maddeningly persistent lead in the polls, Trump isn’t building the normal campaign operations that are usually needed to win. He won’t get key endorsements. His voters may be the ones least likely to be active. It’s unclear how much, if any, of his fortune he’s willing to spend on advertising himself.
Nonetheless, Trump’s continued presence in the race is a danger to other viable candidates. Trump’s campaign may discredit the party in the eyes of many voters who are disgusted with Trump’s presence in the GOP, or other voters who are disgusted with the treatment of Trump’s supporters by the party apparatus.
And that brings us to the big lesson the GOP should take from the entire Trump affair: There is another side to the Republican Party, one that the GOP has tried to ignore, and can ignore no longer. It’s a side of the party that has learned to distrust its leaders on immigration, to be suspicious of a turbo-charged capitalism that threatens their way of life. And it may be a side of the party that is needed to return the GOP to presidential victories. It is the forgotten part of the Nixon-Reagan coalition. And by being ignored, it has turned angrier and more toxic.
The winning Republican coalition may still be the Nixon and Reagan coalition, old as it is. This is a coalition that includes conservatism, and is “anti-left,” certainly. But it also includes a huge number of people to whom the dogmas of conservatism are as foreign to their experience as Edmund Burke and Alexis de Tocqueville. The piece of the Nixon coalition that Trump has activated cares not for the ordered liberty of conservatism, nor the egalitarian project of progressivism. It cares about fairness, and just rewards for work and loyalty. There is nothing moderate about it. This is the radical center. And it explains why when Trump’s support is measured, it is almost always found to be strongest among “moderate” or “liberal” Republicans.
These are the voters who hate modern, tight-suited, Democratic-style liberalism not because it offends God, but because it is “killing” the America they knew. It threatens their jobs with globalization and immigration. They hate tassle-loafered right-wingers who flippantly tell them to get retrained in computers at age 58, and warn that Medicare might be cut. They built their lives around promises that have been broken and revoked over the past two decades. Trump looks like their savior. Someone who can’t be bought by the people who downsized them. Or at least, he is their revenge.
It is frustrating for most conservatives to take Trump seriously as a presidential candidate. He’s a ridiculous troll. He talks about renegotiating the global order with China based on “feel.” He also says he can “feel” terrorism about to strike, perhaps the way an arthritic can feel a storm coming. This is idiotic. But the Republican Party needs to learn a lesson from it. And learn it fast. Few have Trump’s resources, his can’t-look-away persona, or his absurdly high Q-rating among reality TV viewers. But many are watching him divide the GOP in twain, on issues like trade, jobs, and immigration. It would be surprising if no one tried to campaign on his mix of issues again after seeing his success.
This should have been obvious from the politics of the past two decades. Pat Buchanan’s challenge to the GOP in the mid-1990s focused on some of the same issues, though Buchanan was also a tub-thumping social conservative. Buchanan won four states in 1996, while suffering the same taunts about fascism that are now aimed at Trump. His race was premised on finding the “conservatives of the heart.” His 1992 convention speech begged Republicans to get in touch with “our people” who “don’t read Adam Smith or Edmund Burke,” like the “hearty” mill worker of New Hampshire who told Buchanan, “Save our jobs.”
And it is not just populists. Even conservative wonks have been warning for years that the GOP was offering little of economic substance to their base of voters, save for the vain hope of transforming them into an ersatz investor class by privatizing Social Security, and making them manage health savings accounts. In the mid-2000s, there was the plea for a new Sam’s Club Republicanism, a harbinger of the so-called reform conservatism to come later. This was an attempt to connect with the middle American voter, really the Trump voter.
Republicans need to understand this not just to repair their coalition, but to head off Trump in the here and now. Flying banners over his rallies that say, “Trump will raise your taxes” is counterproductive. His supporters correctly perceive the burden of higher taxes will likely fall on those who already have more than they do. Similarly, all the attacks on Trump’s cronyism, or his relationships with Democrats, will fail as well. His supporters are weakly attached to the Republican Party. They won’t blame him for being the same way.
Trump’s candidacy is teaching the GOP that it has to deliver for voters who feel economic insecurity. If they don’t, the radical middle will rise not just to embarrass them, but to wound them as well.
By: Michael Brendan Dougherty; The Week, November 30, 2015
“I’ve Seen America’s Future And It’s Not Republican”: The Policy Vacuum Of Movement Conservatism
It is true that the media is having a bit of a feeding frenzy in their attempt to “vet” the latest front-runner in the Republican presidential nominating contest – Ben Carson. But in the midst of all that, this line from a column by Amy Davidson stood out to me:
A certain number of Republicans turned to Carson because the other candidates seemed even less plausible to them.
That was basically my reaction to the last GOP presidential debate. Initially, I looked forward to John Kasich’s attempt to come out swinging against the rhetoric he called “crazy.” But when he actually did it, all he had to offer as an alternative were the same-old Republican policies of tax cuts and a balanced budget (i.e., the “voodoo economics” of trickle-down) that were completely discredited during the Bush/Cheney years. That’s when I realized why the so-called “establishment candidates” haven’t been able to gain any traction against the rabble-rousers…they’ve got nothing.
That is basically the same conclusion reached by “movement conservative refugee” Michael Lind.
Why isn’t the old-time conservative religion working to fire people up any more? Maybe the reason is that it’s really, really old. So old it’s decrepit.
Lind goes on to talk about the birth of the modern conservative movement 60 years ago with the founding of the National Review by William F. Buckley, Jr. That was followed by Barry Goldwater’s failed presidential candidacy and Ronald Reagan’s eventual success. But by then, the strains were beginning to show.
Yet by the 1980s, movement conservatism was running out of steam. Its young radicals had mellowed into moderate statesman. By the 1970s, Buckley and his fellow conservatives had abandoned the radical idea of “rollback” in the Cold War and made their peace with the more cautious Cold War liberal policy of containment. In the 1960s, Reagan denounced Social Security and Medicare as tyrannical, but as president he did not try to repeal and replace these popular programs. When he gave up the confrontational evil-empire rhetoric of his first term toward the Soviet Union and negotiated an end to the Cold War with Mikhail Gorbachev in his second term, many conservatives felt betrayed…
Indeed, it’s fair to say that the three great projects of the post-1955 right—repealing the New Deal, ultrahawkishness (first anti-Soviet, then pro-Iraq invasion) and repealing the sexual/culture revolution—have completely failed. Not only that, they are losing support among GOP voters.
Lind suggests that this should have resulted in “an intellectual reformation on the American right in the 1990s.” But instead, Buckley-Goldwater-Reagan conservatism returned in an even more radical form in the 2000’s. The result was 2 failed wars in the Middle East, huge federal deficits and the Great Recession. And once again, rather than engage in an intellectual reformation, establishment conservatives initially embraced the post-policy strategy of obstruction and eventually drilled down even farther on the failed policies of the past.
Combine all that with fear-mongering about changing demographics/social mores and heated talk about a “world on fire” and you get a policy vacuum that has been filled by the likes of candidates like Trump and Carson.
It is impossible to know with any certainty how all this will play out. But unless/until conservatives come to grips with their own policy failures and re-think their whole ideological foundation (i.e., incorporate some of their own advice about personal responsibility rather than blaming others), I’d say that Stan Greenberg is right when he says, “I’ve seen America’s future – and it’s not Republican.”
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, November 7, 2015
“Delivering The Promised Conservative Paradise?”: The Supreme Court Is Poised To Deliver Conservatives A String Of Big Victories
The Supreme Court’s new term begins today, and it brings with it a paradox. On one hand, the Court is poised to deliver conservatives a string of sweeping, consequential victories on issues covering a wide swath of American life. On the other, conservatives are up in arms about how they’ve been betrayed by the Court, and particularly by Chief Justice John Roberts, despite the fact that Roberts has in all but a couple of cases been as reliable a conservative vote as they could have hoped for.
Let’s look at what’s coming. Among the cases the Court will be hearing are an affirmative action case involving the University of Texas, a case asking whether congressional districts must adhere to a “one person, one vote” standard, a case testing state restrictions meant to shut down abortion clinics, a case asking whether public-sector unions can require non-members who benefit from their collective bargaining to contribute to those efforts, and yet another lawsuit challenging the Affordable Care Act’s contraception provision.
While a couple of them may be in doubt, it’s entirely possible that by the time this term ends next June, the Court will have driven the final stake into affirmative action, struck a fatal blow against public-sector unions, enhanced Republican power in legislatures by reducing the representation of areas with large Hispanic populations, given a green light for Republican-run states to make abortions all but impossible to obtain, and undermined the ACA. Even if one or two of those don’t go how Court observers expect, it’s almost certainly going to be a great term for Republicans.
And while they’ve had a couple of recent high-profile defeats at the Court, conservatives have enjoyed a conservative majority for a couple of decades now. Yes, Anthony Kennedy sometimes joins with liberals, as he did in the case legalizing same-sex marriage. But just in the last few years, they’ve seen the doors of campaign finance thrown open to unlimited spending by corporations and billionaires; the Voting Rights Act gutted; affirmative action all but outlawed; an individual right to own guns created for the first time in American history; corporations granted religious rights to exempt themselves from laws they don’t like and sectarian prayer allowed at government meetings; unions undermined and employment discrimination suits made more difficult; and a whole series of less well-known decisions that enhance the power of the powerful, whether it’s the government or corporations.
Nevertheless, when you hear conservatives talk about the Court, they don’t say, “We need to make sure we get more conservative justices to keep winning.” Instead, they say, “We’ve been betrayed!” So what’s going on?
There are a couple of answers. The first is that they’re demanding not just a record of wins, but absolute perfection. They want not justices who will bring a conservative philosophy to the Court, but justices who will never stray from whatever it is the Republican Party wants at a particular time. The recent decision in King v. Burwell is a perfect example: the lawsuit itself was a joke, based on a series of claims about the Affordable Care Act that ran from the clearly false to the laughably ridiculous. When John Roberts sided with the majority to dismiss it — despite a long record of being on the “right” side of all the cases I mentioned above, plus many more — they declared him to be an irredeemable traitor.
The second reason is that narratives of betrayal are central to how conservatives understand history. Whenever events don’t turn out as they would like, whether it’s a foreign war or a lost election or a societal evolution, the story is always the same: We were betrayed, either by our opponents or by the people we thought were our allies. Was the Iraq War a terrible idea? No, we had it won — until Barack Obama betrayed us by pulling out. Why was George W. Bush so unpopular? Because he betrayed conservative principles by not cutting spending more, just like his father betrayed us by raising taxes (while the younger Bush was still president, longtime conservative activist Richard Viguerie wrote a book entitled “Conservatives Betrayed: How George W. Bush and Other Big-Government Republicans Hijacked the Conservative Cause).” As Digby memorably wrote, “Conservatism cannot fail, it can only be failed. (And a conservative can only fail because he is too liberal.)” And it goes back as far as you want. Why did the Soviet Union come to dominate Eastern Europe? Because FDR betrayed us at Yalta.
It isn’t that there’s never any truth in this story, particularly when it comes to the Court. David Souter, for instance, turned out to be a genuine liberal, not at all what Republicans expected when he was appointed by George H. W. Bush. But they’ve gotten so used to the betrayal narrative that they place even a single setback into it. Which may explain why conservative opinions of the Court have changed so dramatically in recent years. According to Pew polls, in 2008, 80 percent of Republicans approved of the Supreme Court, compared to 64 percent of Democrats. By 2015, the views of Democrats hadn’t changed — their approval was at 62 percent. But Republican approval had fallen to 33 percent, despite all they had won at the Court over that time. A full 68 percent of conservative Republicans call the Court “liberal,” an idea that is absurd by any objective measure, but one that is regularly fed by conservative media and Republican politicians.
To be clear, Republicans are right to focus on the Supreme Court during the campaign, and Democrats ought to as well. As I’ve argued before, there may be no single issue more consequential for America’s future in this election than what will happen to the Supreme Court in the next four or eight years. But Republicans aren’t just arguing that it’s important for them to elect a Republican so they can get friendly justices, they’re arguing that even Republican presidents and Republican-appointed justices can’t be trusted not to turn into judicial Benedict Arnolds.
If you’re someone like Ted Cruz, this idea fits in nicely with the rest of your message, at least during the primaries: the real enemy isn’t the Democrats, it’s the feckless and unreliable Republican establishment that has failed to deliver the conservative paradise we were promised. Which is why no one is louder in condemning Roberts than Cruz (who supported Roberts wholeheartedly when he was nominated). But I wonder, will they change their tune when the Court gives them one victory after another over the next nine months?
By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line, The Washington Post, October 6, 2015
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