Murc’s laying down of the law

Our commenter Murc had a few brief remarks on Kevin Drum’s recent entries in the “only I have the guts to tell it like it is: that everything is just fine” sweepstakes. They are presented below:

Over the past twodays, Kevin Drum at Mother Jones has written a pair of posts whose theses are best described as “you guys are worried about nothing; authoritarianism isn’t coming to the United States, and here’s why, so there’s no need to court pack or make new states!” 

Now, I generally both like and respect Kevin Drum. He’s written a lot of good and valuable stuff over the years, and unlike a lot of pundits he generally isn’t afraid to bring his receipts or to do deep dives into data. I think he, in general, is valuable and worth reading.

But this is the most wrong he’s ever been. Indeed, this pair of posts contains assertions and “information” that are not just wrong, but so howlingly, egregiously wrong it calls into question either his intellectual honesty or his ability to pay basic attention to the world around him, which are nearly unforgivable sins in someone who is paid professionally to write about politics at the national level in one of the most venerable liberal news outlets in the country.

You know what, though? Talk is cheap. I can bring receipts too, and I’m pretty sure mine are better. We’ll start with his first post:

Of course, if democracy really is under threat then it’s hardly toxic to point this out and fight it. But is it? I understand that mine is an unpopular view these days among progressives, but of course it’s not. America has had gerrymandering, the Senate, the Electoral College, and the Supreme Court since the beginning, and liberals rarely worried that they were an existential threat to democracy.

And right off the bat he’s missed the point. Yes, it is true that we’ve rarely worried that those institutions were existential threats to democracy… during periods where they weren’t existential threats to democracy.

Let’s put a pin in gerrymandering for right now. We’ll come back to that later.

The loaded gun of the Electoral College lay around for two and a quarter centuries and was only fired once, during a Gilded Age election whose freeness and fairness was dubious to begin with. Thus, we didn’t pay attention to it. Indeed, the political consensus was that a President who was elected by said college without winning the popular vote would face an enormous legitimacy crisis.

Then that gun got picked up, placed to our heads, and fired twice in two decades. There’s a non-trivial chance that will happen again next week. And the response of the body politic to that has been “mneh.” Indeed, Drum’s response is a primo example of someone looking at the body on the floor and saying “mneh.”

So yeah, we started caring about the Electoral College being an existential threat to democracy when it started functioning in that capacity. That shouldn’t be a surprise, and it damn well isn’t out of line.

The Senate, of course, has always been indefensible. But we’re only starting to get het up over it due to a combination of the extreme tilt that’s been developing (it has never before in American history been possible to assemble a Senate majority with Senators representing so few Americans, proportionally) and due to the fact that it has been weaponized by a political coalition that doesn’t regard anyone but themselves as legitimate governors of the country. Ditto the Supreme Court.

Really, we’re going to come back to that point again and again and again. The reason liberals are pissed off and/or scared about the coming of authoritarianism to America isn’t because we suddenly decided our institutional framework was shitty. (Although parts of it certainly are.) It’s because those institutions have been taken over and weaponized by a minority faction that loathes democracy.

Democrats controlled Congress for nearly 50 straight years after World War II and liberals didn’t think it was a threat to democracy. 

We won a lot of elections in the House after World War II. Those elections were, for the most part, free and fair. Why on earth would we consider this a threat to democracy?

Drum seems to think the liberal thesis for conservatives being a threat to democracy is “well, they keep winning elections.” That, of course, is ridiculous. We don’t care if they win, at least not more than normal. We care if they cheat.

The Warren Court upended constitutional law in the ’60s and liberals didn’t think it was a threat to democracy. 

Whoa, whoa, what the hell.

This? Is wrong. It’s so wrong I’m not even sure where to start rebutting it. The Warren Court did not “upend” constitutional law in the ‘60s. 

I assume that Drum is referring to the four big decisions of the 60s; Loving vs. Virginia, Gideon vs. Wainwright, Griswold vs. Connecticut, and Reynolds vs. Sims. Let’s be generous and throw Brown in there; people usually conflate that with the ‘60s even though they shouldn’t.

The most consequential of those decisions to the existing constitutional order was Reynolds vs. Sims. A decision that “upended” the constitutional order by… mandating one person, one vote.

Gosh. Yes. We don’t view a decision that made the country massively more democratic as being a threat to democracy. That’s a big big shock! Brown, Loving, Gideon and Griswold weren’t as impactful to the existing constitutional order (although there’s a case to be made regarding Griswold)… but they all served to make this a more democratic and freer country, so we don’t regard them as threats.

Again, Drum seems to think the thesis he’s arguing against is “we’re upset at the Supreme Court issuing rulings.” There’s a small faction of liberals that have adopted that position, but they exist in tiny numbers and are irrelevant. The actual argument is that when an illegitimately constituted court issues rulings that massively erode American democracy based on specious or nonexistent legal reasoning, we regard that as an existential threat.

Just recently, Democrats passed Obamacare even though it was unanimously opposed by Republicans and only barely eked out majority support from the public. Liberals didn’t consider this a threat to democracy. 

These statements by Drum are getting less and less germane. He keeps listing things that aren’t threats to democracy and saying that liberals don’t regard them as threats. And, I mean, right there with you, K-Drum, but you seem to be presenting these as argument-winners, not as recitations of basic facts.

And in 2015, when the Supreme Court legalized same-sex marriage? No threat to democracy there.

Another recitation of a basic fact.

Every democratic country has institutions that get in the way of perfect representation, and this is often considered a good thing: the Senate as a counterweight to the passions of the House, for example, 

Many of us don’t consider this to be a good thing, because, in fact, it is not.

or the Supreme Court as the guarantor of the rights of the minority vs. the will of the majority.

This is a very, very good thing when the rights being guaranteed are basic citizenship rights or ones of full political and social equality.

It is an immensely bad thing when the “right” of the minority being guaranteed is “you get to oppress your workers” or “you get to control the government even though you got less votes.”

Drum keeps missing the point, and I can only conclude he’s doing so willfully.

Rather, the foundation of democracy is that the people mostly get what they want most of the time. And in America they do,

Even if we grant this (and we shouldn’t) what liberals are worried about is that it is about to stop happening. The Republicans have constituted a Supreme Court majority composed of people who have openly talked about how they don’t regard nearly anything we want to do as constitutional. Does Drum think that a potential Voting Rights Act of 2021 would be regarded by the author of Shelby County as any more legitimate than previous ones? Does he think that there’s ANY major health care reform we could do that would pass muster? Does he think we could tighten regulations on any industry, anywhere, in a way that people who think the greatest threat to American freedom is the restriction of the freedom to contract would consider themselves bound to respect?

But let’s back up from that a bit. “People mostly get what they want most of the time” is a fine standard when it comes to the questions of “what shall our tax policy be?” or “how shall we regulate the internet?”

It is a wholly inadequate standard when it comes to “who shall govern us?” The answer to that question should always be “the people get what they want.” Even a single failure on that score should not be countenanced. It should not be possible to govern as a minority faction. Period. The Office of the Presidency wields immense power; legislative bodies arguably wield even more. “Most of the time” doesn’t cut it when it comes to who controls them.

Democrats have mostly won the culture war while Republicans have won the economic war. The reason, like it or not, is that this is basically what the American public wants. Liberals have made their case for gay rights, civil rights, women’s rights, and so forth, and Americans have hopped on board. Conservatives have made the case for tax cuts and business friendly policies, and Americans have largely hopped on board with that too.

Good lord, no.

Republican tax cuts are both unpopular (both the Bush tax cuts and the Trump tax cuts did not enjoy majority support, and the Trump tax cuts did not even enjoy plurality support) and only the tip of the iceberg when it comes to their “business friendly policies,” which are largely implemented quietly and without fanfare by the courts and by regulatory agencies precisely because Republicans know they are unpopular. Antitrust law is effectively a dead letter in this country because of the tireless efforts of Robert Bork and his acolytes, for example. They’ve got a guy on the Supreme Court who thinks the nondelegation doctrine is a thing, and with Kavanaugh and soon Barret confirmed, he might have four friends!

Drum is aware, or ought to be, that when you explain actual Republican business and tax policy to the American public they tend to not believe you because they find those policies so grotesque. These policies are not popular. Republicans have not gotten Americans to “hop on board” with them.

I’ve spilled a lot of ink on this, and we’re not even done yet. Not even close to being done. That was just Drum’s ante. He decided a day later to double down:

Republican control of the Supreme Court is not due to anti-democratic forces. It’s due to the fact that conservatives have worked on it a lot harder than liberals. (Plus they got a bit of luck.)

Putting aside the judicial coup of 2000 (and we shouldn’t, but I’ll spot Drum this one) the Republicans control the Supreme Court because a Senate majority that did not represent a majority of the country declined to seat Merrick Garland, and because Donald Trump “won” an election in which he received three million fewer votes. Indeed, had Hillary Clinton won in 2016, the Republican plan was simply to hold the court at eight justices indefinitely. 

If that’s not because of “anti-democratic forces” then the term has no meaning.

We do not face a hostile Supreme Court “for the next 40 years.” Clarence Thomas is 72. Alito is 70. Roberts is 65. There’s a good chance that a Democratic president will have a chance to replace one or more of them sometime in the next 10-15 years.

No. There’s not. There is zero chance of this.

We might get a chance to replace Thomas; I believe he plans to die in office. Everyone else will retire strategically. We will have to hold the Presidency, uninterrupted, for something like close to two decades to have a realistic chance at replacing two of those people. If a Republican is elected in 2024 or 2028, Alito and Roberts will retire and be replaced by people who think Amy Covid Barrett was a commie symp. 

Even after four years of Donald Trump, the rest of the judiciary is split about 50-50 between Republican and Democratic judges. This is less than Republicans have typically enjoyed over the most recent few decades.

The raw numbers of Republican justices matters less than their substantive ideological beliefs and the rulings that derive thereof. 

I just. I know I keep pointing this out, but you can’t not because he keeps throwing it back in your face: Drum seems to think that the liberal complaint is that we don’t get to hold power, and that’s just not true. Our complaint is that we are denied power even when we legitimately win, and that the conservative political coalition is composed of people who want to gut-shoot democracy. We don’t care that these judges were appointed by Republicans; we care about their unremitting hostility to basic citizenship rights and to liberals governing.

Since 2000, Democrats have controlled the Senate for 10 years vs. 6 for Republicans.

It’s weird for someone who is relying on numbers as much as Drum is to get something so basic wrong. Ten plus six is sixteen, not twenty. There’s four missing years in there.

I’ll spare you going to check for yourselves; in fact, Republicans have controlled the Senate for ten of the last twenty years, not six. (2002 to 2006, then again since 2014.) This is a minor note, but Drum keeps tossing his figures in our face, and if you do that you’d better get them right.  

If there were a serious move toward authoritarianism in the United States today, we’d see it at the state and local level too. We don’t.

What. The. Fuck.

This? Is a lie. I’m hesitant to levy the word but that’s the only thing it can be. The only alternative explanation is that Drum is so appallingly ignorant, or is using such a blinkered, crabbed definition of “authoritarianism,” as to call his entire competence as a political commentator and analyst into question.

We don’t see a serious move towards authoritarianism at the state and local level?

The Michigan gerrymander. The Wisconsin gerrymander. (I said we’d come back to gerrymandering.) The North Carolina “Democratic Governors don’t get to govern!” power grab. The constant, unending purges of voter rolls in… too many states to mention. Brian Kemp in Georgia. The Florida felon re-enfranchisement scandal. 

Texas Republicans implemented a racially-motivated voter suppression scheme almost the day after Shelby County was handed down!

This is only the stuff that came off the top of my head. There’s more. A lot more.

That pair of sentences is quite literally the most appallingly ignorant, dishonest thing that Kevin Drum has ever written. He should be deeply ashamed of having typed them out.

And then he follows it up with this, which is only marginally better!

The anti-majoritarian institutions of the Senate and the Electoral College are minor sideshows.

If Donald Trump is still President in February, it will be either because he won the Electoral College while losing the popular vote by somewhere around six million, and/or because the Supreme Court runs Bush vs. Gore II: This Time It’s Precedential.

That’s not a minor sideshow.

Let’s zoom out here.

Drum has constructed the entire edifice of his argument on two pillars that are both very, very shaky. The first, as I’ve pointed out ad nauseum, is a willful misinterpretation of liberal objections to the current conservative project; there’s a barely-concealed contempt for these objections, in fact. He doesn’t come straight out and say “you’re a bunch of whiny babies whiny that you’ve lost some elections and can’t win the public argument,” but that’s basically the underlying message, isn’t it? Along with a big dose of “you’re hypocrites; you like it just fine when the Supreme Court rules your way.”

The second is a complete disregard for actually-existing Republican ideology, both in the legislative and judicial spheres.

Take this graph, for example:

Drum tries to use this to make a point that the modern court, “even with Barret,” won’t really be any more conservative than the court was in the eighties.

Thing is, all this graph does is chart out the ideology of justices relative to the median justice. It doesn’t make any accounts for the substantive beliefs of those justices. Ginsburg and Sotomayor have not gotten appreciably more liberal in the past four years; what’s happened is that the median justice has moved way to the right. More to the point… the conservative justices of the 80s would not have even dreamed of being able to get away with stuff like Shelby County, or talked openly about the Constitution-in-Exile or their desire to undo the modern administrative state. 

Substance matters. It matters a lot more than where your dot on the graph is. Our objection is not that we have a conservative Supreme Court; it is that we have a conservative Supreme Court due to illegitimate elections that issues jaw-droppingly bad opinions hostile to American democracy. 

I get that Drum regards himself as a bloodless technocrat. I do. There’s a place for bloodless technocrats within our political coalition. But guys like him are going to be a ball and chain around our ankle during the upcoming constitutional showdowns, even more so than the Legion of Bad Matts are. I think Drum would come around, which is more than I can say for most… but it would involve the Supreme Court striking down Roe, the ACA, any and all Voting Rights Acts, and implementing the nondelegation doctrine. That’s probably way too late.

Drum, along with guys like Noah Feldman and Neal Katyal, will need to be sidelined and defeated in the upcoming intra-coalition knife fight. For the next week, the focus is on Trump and the Senate. After that? The field of battle changes back to what it was in 2009, the fight against the worst members of our own side.