Mr. President, There is No "Easy Button" For Governing

Cometh now the latest leaks from the White House that President Trump is frustrated by the way the government works. In politics, we should all try to recognize the premise from which we start our arguments. I get the impression that Trump's premise is that ready-made solutions exist but Obama was just too [insert pejorative here] to implement these obvious solutions. What better illustration of this than his campaign slogan: Make America Great Again.

Let's leave aside the issue of whether American is great (and therefore requires a return to greatness). Instead, look at his specific policies for achieving this goal:

1. Win
2. Win some more
3. Get rid of immigrants who Republicans think are simultaneously stealing our jobs and too lazy to work
Would that it were that simple, Mr. President. Would that it were.
4. Win another one
5. And another one

Ok, President Trump has neither specific policy proposals nor a coherent legislative plan to Make America Great Again. His speeches tell us that he's going to accomplish that goal though. 

How? Not important. 

When? Shut up. 

These latest reports suggest that even President Trump underestimated how difficult "getting things done" is in politics. It's not as though Obama set the 'Merica Machine to "Decline" instead of "Great" and all President Trump needs to do is turn the dial. 

For example, his plan for an infrastructure bill that he mentioned during his victory speech that will put millions of people back to work. The problem is that there aren't millions of people with the skills to build roads and the infrastructure America needs. Do you know why most bridges are not paved with asphalt? Me neither. But it's pretty not an easy answer. How many out-of-work structural and civil engineers are wasting away in America's Heartland? How many of these private contractors are going to save money by automating the construction process more than it is already?


In Southern California, there's a drastic shortage of trade workers like electricians. That's in one of the most populous regions in the world. Where is President Trump going to find out-of-work electrical engineers, physicists, and computer scientists to build a smart grid? What about all those power line installers (employers prefer candidates with a basic knowledge of algebra and trigonometry. I wouldn't qualify for that job and I have a masters and a law degree)? These are just the problems I could find in about 20 minutes of googling. I suspect it is just the tip of the jobs-iceberg. Republicans don't seem to think job training is a priority.

So what's the answer to the infrastructure jobs problem? I don't know. Neither does President Trump but he's confronting the reality that there is no easy button to MAGA.  


A True Originalist Would Decline the Supreme Court Nomination

President Trump nominated 10th Circuit Judge Neil Gorsuch for the Supreme Court vacancy left by Nino Scalia's passing. With the snap of his tiny, orange fingers, President Trump has created drama. This is the seat that Former President Obama tried to fill with Merrick Garland but Republicans refused to even meet with man despite universal agreement that he was qualified. Democrats refer to it as the "stolen seat" and are understandably unmoved by Republican's shamefully hypocritical denouncement of Democrats as already being obstructionist. What about Neil though?   
Gorsuch is being hailed as an originalist. Originalism is a doctrine that favors looking to the original intent of the men who wrote the Constitution when interpreting it today. It relies on "plain reading" of the words that are actually in the Constitution rather than, say, made-up concepts like "penumbral rights." For now, let's leave aside the very real possibility that politically conservative idealogy has body-snatched much of originalism as a theory (see, e.g. Scalia's concurrence in Gonazlez v. Raich wherein he expressed a newfound affinity for applying the Interstate Commerce Clause to actions that were neither commerce nor interstate because it permitted him to vote against dope-sucking hippies in California).   
To say that Republicans prefer originalist jurists is like saying pilots prefer planes with wings. They are positively tumescent excited about Gorsuch. Even Neal Katyal, former Solicitor General in the Obama Administration, said today that Democrats should support Gorsuch's nomination in part because he believes Gorsuch will prioritize the rule of law over party preference and reject Presidential or Congressional overreach. For the reasons stated below, I dissent.  
Originalists look at what the Constitution actually says. Remember that Merrick Garland guy? What did Republicans say the reason they refused to even give him a hearing was? Mitch McConnel said in 2016 that "The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide." Two problems for McConnell. First, the people actually preferred Hillary Clinton. Should she get to nominate someone? McConnell's second and more difficult problem is that the Constitution doesn't give the power of Supreme Court nominations to the people. It gives that power to the President. In fact, the Constitution tried to keep Supreme Court nomination process about as far away from the people as possible.
Article II, section 2, clause 2 says the President (who, by the way, isn't elected by the people either) "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court..." Justices are given life-time appointments so they can take a measured long view of the issue without worrying about re-election or renewed fitness hearings (Article III, section 1.) They may only be removed by impeachment by Congress for bribery, treason and all the other fun high crimes and misdemeanors (again, Article III, section 1.) 
Of course the Senate's role is to advise and consent. First, let's keep in mind also that Senators originally were not elected by the people either. They were appointed by the state legislators rather than directly elected because such a removal would mean the Senate would not "yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions." In other words, they wouldn't follow the capricious whims of the people; instead they would deliberate. 
Second, the founders actually contemplated the Senate rejecting a nominee and did not think such a rejection was reason for grave concern. The President would just nominate someone else and the Senate would vote again. What doesn't appear in the Constitution or the other primary sources is the idea that the Senate would be too obstructionist to even vote at all. If Mitch McConnell felt that Garland was unqualified, he should have the courage to say so by voting against him. Instead, he took his ball and went home claiming "the people" should decide. 
For someone who prefers a literal interpretation of the Constitution, McConnell sure doesn't seem to know what the Constitution actually says. Neither, apparently, does Neil Gorsuch. An originalist with integrity would have deep reservations about benefiting from this kind of gamesmanship. I submit that someone who holds rule of law, procedure, and the manner in which results are achieved above the actual results themselves would denounce the Republican's actions and demand that Garland-the rightful nominee- be given his day in court.  


What Scalia Really Wants

Oh, Nino Scalia, you rascal.  He has recently come under fire for "compar[ing] sodomy to murder."  As usual, people are missing the subtlety of the original argument (much same way people mischaracterized the politically foolish comments by Republicans that bad things--e.g. rape--are part of God's plan).

In this case, a gay student asked Justice Scalia why he compares homosexuality to murder.  Scalia was a bit too playful in response.  As a result, people misunderstand his point.  The short answer is that he doesn't compare the two in terms of morality.  He compares the legislature's power to ban either or both.  That's different.  

We have to move beyond a fact to fact comparison.  Scalia is not saying that homosexuality is as morally repugnant as murder.  His argument is more nuanced than that.  He is saying that we ban murder for moral reasons.  Sure, killing someone probably has some negative utilitarian outcome or exerts long-term downward pressure on economic growth but our repugnance is more visceral.  It's just wrong to kill people.  Morally wrong, so we ban it.

Keep that in mind when considering the common refrain from gay rights activists, "the government shouldn't force its morality on anyone."  Yes, it should and thank goodness for that.  It is exactly what we do with murder.  So why not with homosexuality?   So Scalia's point is that the don't-force-your-morality-on-me argument is a non-starter.  We do it everyday.  The question isn't, "should the legislature be able to ban that which it finds morally wrong?"  The answer to that question is yes.  

Instead, the front line of this argument should be in the legislature, in the streets and in the homes of Americans.  And it should be about why homosexuality is not immoral and, therefore, should not be banned; not whether the legislature has the power to ban immoral things.  And this is an argument that, by the structure of our government, belongs in the legislature, not the courts.

In the end, Scalia is advocating a special kind of judicial restraint by averring that our system of government confers to a legislature (the voice of the people) this power to ban what it finds to be morally repugnant.  If it cannot do so with homosexuality, that undermines its power to do so with murder.  That is Scalia's point.   


What Voters Want

Molly Ball wrote an article forThe Atlantic website that shows the latest polling numbers explaining what voters want from a "fiscal cliff" deal:
Americans want a deal that reduces the deficit, raises taxes on the wealthy, and doesn't cut entitlement benefits. But most of all, they want compromise
That is to say, Americans want the problem solved but they want someone else to pay for it.  This does not surprise me.  It does not trouble me much either.  In a culture driven by consumerism, people desire bargains including policy.  I would prefer they wanted a prudent solution (whatever that is) rather than a simulacrum of "bipartisanship."  History, however, holds too many examples of popularly supported offal to hold much hope in that regard.  

Something does trouble me though.  Perhaps availability bias is at play here but I feel a creeping reliance on poll numbers in analyzing the prudence of policy.  As though popular support equates to wisdom.  It is important that a policy be good.  It is not important that a policy be popular.


Falling to the Darkside: The Legacy of the 2012 Campaign

"You either die a hero, or you live long enough to see yourself become the villain."
- Harvey Dent, The Dark Knight Rises

Many Progressives are jubilant over Barack Obama's reelection.  And yet, they should be mourning the unceremonious demise of the Hope and Change promised in the 2008 election.

This Democratic election effort proved that a party cannot win multiple elections unless it fights dirty. This, to me, is Obama's legacy, unintentional though it may be. The incentives and structure of the election process are so well entrenched, that not even the best of us can resist the temptation and, worse, the need to employ morally distasteful tactics. Obama and Democrats rode into office in 2008/2009 on the wave of public disillusionment with "politics as usual." Four years later, they were politics as usual's number one fans.

How can anyone see this as anything but Anakin Skywalker's transformation into Darth Vader? Isn't this exactly what happened to Harvey Dent? To anyone concerned with American political discourse, hasn't Obama lived long enough to see himself become the villain?

Obama's 2008 campaign was so refreshing because it avoided the worst excesses of modern campaigns: technically true but intentionally misleading ads, whisper campaigns, and ad hominem attacks. While there was some of that in 2008, it was a noticeable drop off from the Karl Rove driven depredations of the Bush years. We might attribute such chivalry to McCain's inability to position himself as a viable alternative and, therefore, such tactics were unnecessary. That was never Obama's take though. He promised to unite the clans and work together. He envisioned a new foundation for political discourse that was enlightened, civil and productive. I bought in. So did most of us.  Because we wanted it so bad.

Fast forward to 2012, this campaign proved much nastier than 2008 (again, probably because Romney put up a better fight than McCain). But let me tell you the most disappointing thing: Obama and the Progressives availed themselves of all the nasty, misleading tactics that they vilified George W. Bush for using. For example, take all of the ads portraying Romney's leadership of Bain Capital as anti-American and (worse!) anti-middle class. Do you remember the ad that ran in predominantly industrial states which so indelicately toed the line of accusing Romney of killing a man's wife?


The claims in this ad are each true in isolation. Yet, the juxtaposition is intended to create a causal link between Bain's (and therefore Romney's) decisions and this woman's death. How is that different from the risible nonsense that Republicans deployed during the Bush era to imply that Progressives were soft on terror and hated freedom? It's not. It is a deplorable. Karl Rove was a genius at doing this and I saw great dishonor in it then. I see great dishonor in it now too.

Herein lies the great Progressive failure of this election.  To deride a practice so vehemently and adopt it with with such little compunction, reveals that neither side has any true moral foundation.  The drawn out fight abraded the artifice of promises to change the system.  It's not possible.  That horrifies and liberates me.  

Admittedly, this ad was run by Priorities USA, a PAC supporting Obama, not Obama himself. That vitiates any culpability for Obama.  (He is not free of blame though, he ran ads that followed the same pattern of misleading facts designed to create an impression especially ads appealing to atavistic fear of the Chinese).  What does it say about Progressives that they took advantage of PACs as much as conservatives? Who led the charge against the Citizens United decision? Who fulminated against the excesses of unchecked money in politics? Who presaged the lack of accountability and deception? The same side that availed itself so effectively of all those baleful tactics this past election.

Obama, so honored by his supporters for his perspicacity, missed the mark this election.  This was an opportunity to prove that positive campaigning can win big.  Instead we got hackneyed us-versus-them, rich-versus-poor wedge politics.  If the system can be changed, if American minds can be focused on what's important, if Obama believed in his 2008 campaign rhetoric, he should have run a campaign based on the same principles as 2008.  Instead, he stole a page from the Republicans' 2000 and 2004 playbooks.

I believe there are two fundamental problems with American political discourse.  First, we have foolishly attempted to strip any language of morality or qualitative judgment from our political lexicon.  Second, each side refuses to hold their own to the same standards they hold their opponents to.  What is fairness if not applying the same rules to similarly situated people?

For Progressives, this election was a dramatic and stultifying example of the latter.  For so long, they endured the parade of W's horribles and, in spite of this perceived injustice, sunk to his level the minute the going got tough.