Young fogey Ezra Klein: unable to look the problem full in the face.

In the wake of the Brett Kavanaugh affair, a number of news outlets have discovered that the body that confirmed him, i.e.  the US Senate, is less than a model of democracy.  Due to growing state population discrepancies, declared Lawrence O’Donnell on MSNBC, “the votes of New Yorkers and Californians [are] worth less everyday in the United States compared to the votes of people in the Dakotas.”  At the New York Times, David Leonhardt described the Senate as “affirmative action for white people” and calculated that it gives whites 35 percent more political clout than blacks and 85 percent more than Hispanics.  Over at the Atlantic, Parker Richards noted that the fifty senators who voted for Kavanaugh represent just 44 percent of the US population, adding: “those who want abolition and those who want more modest, but nonetheless significant, changes agree: The Senate is increasingly unrepresentative of the American populace.”

How incendiary.  Then there is Ezra Klein, whose essay at Vox.com, “The Rigging of American Politics,” is even more sweeping.  “Since 2000,” he writes, “fully 40 percent of presidential elections have been won by the loser of the popular vote.  Republicans control the US Senate despite winning fewer votes than Democrats, and it’s understood that House Democrats need to beat Republicans by as much as 7 or 8 points in the popular vote to hold a majority in the chamber.  Next year, it’s possible that Republicans will control the presidency and both chambers of Congress despite having received fewer votes for the White House in 2016 and for the House and Senate in 2018.”

Yes, it really is a horror show.  “Kavanaugh now serves on a Supreme Court,” Klein goes on, “where four of the nine justices were nominated by a president who lost the popular vote in his initial run for office.”  Having gained control of the executive branch, the House, and the Senate, the minority dictatorship has thus moved on to the judiciary, which it will now use to deepen and extend its rule.  The result, Klein writes, is a growing crisis of legitimacy in which “we the people” no longer believe that the system is right, fair, and representative.  “This is the feeling that is draining out of the American political system,” he says, “and as bad as it is now, it can, and likely will, get much, much worse.”

Quite right: the longer this farce goes on, the more demoralized Americans will become.  But what’s notable about Klein’s 3,200-word article is the way it can barely bring itself to mention the real problem, which, of course, is the dysfunctional amending clause in Article V.  All Klein can say is that the “Constitution is devilishly difficult to amend” and that “the pace of amendments is slowing as we move further from the date of ratification” – hardly adequate given that the Article V effectively rules out meaningful constitutional reform by allowing just thirteen states representing as little as 4.4 percent of the population to veto any and all change.  This is why frustration is mounting to such dangerous levels: because the Constitution is essentially unfixable under anything like present circumstances and “we the people” are therefore destined to writhe ever more hopelessly in its grip.

This inability to look the problem full in the face explains why Klein’s rhetoric grows murkier and murkier the longer he goes on.  “America is not, and never has been, a democracy,” he says before complaining that it falls short of democratic norms.  “We do not judge our constitution, we venerate it,” he adds.  He worries that “there’s little clarity on the principles we believe should undergird America’s political system” and wonders whether “our true belief is not that our system of governance is performing so well that it should be immune to change, but that we are performing so poorly that we do not trust ourselves to change it.”  Then comes the following peroration:

The problem right now is we don’t all agree the rules are fair, but the depth of that disagreement has made it impossible to imagine agreeing to other rules, either.  And since we haven’t even tried to agree to the principles that are meant to guide our rules, every question, in every case, comes down to the raw exercise of power.  Perhaps the only way out of this mess is for the stakes to be raised, for Democrats to respond to Republican provocations and an increasingly tilted playing field by striking back and pushing the system to a breaking point.  Perhaps then a compromise will come clear to both sides.  But that’s a treacherous path to walk in a country that already feels near fracture.

All of which is quite misleading.  If Americans venerate the Constitution, it’s not because they’re worshipful or religious but because Article V places it so far beyond their reach that they have no choice other than to acquiesce.  If the system lacks clarity, it’s because they don’t know how to fix it and thus dispel the constitutional fog.  It’s not that they don’t trust themselves to make long-overdue reforms.  It’s that they lack the power and therefore don’t know how to begin.

As for “the depth of that disagreement [that] has made it impossible to imagine agreeing to other rules,” in fact it’s not at all impossible – it’s just seems that way.  For the moment, an obsolete political system cripples effective decision-making.  But it’s not impossible to imagine a different system in which all it would take is a 51-percent majority to cast aside old rules and superstitions so that “we the people” can address their problems in something like the clear light of day.  Agreement under such conditions might actually prove quite easy.

The problem is really simple — so simple, in fact, that people like Klein tend to look away.  The issue is that Article V and the Preamble are mutually contradictory.  One says that “we the people” are all-powerful and hence fully capable of tossing out old constitutions and instituting new ones in their place in order to establish justice, insure domestic tranquility, and do all the other things that popular sovereignty requires.  The other says the opposite, i.e. that the Constitution is not an instrument of democratic self-government, but a totem before which the people must bow and scrape.  Just as a house divided itself cannot stand, a people that can’t figure out whether they’re over the Constitution or under it is one that will grow increasingly paralyzed the more sclerotic the system grows and the more problems pile up.

The structure is collapsing, yet Americans don’t know what to do because the founders neglected to include a repair kit along with a user’s manual.  But what they don’t realize is that the founders didn’t include a repair kit because they couldn’t: being mere mortals, they had no way of anticipating the problems that would arise.  Hence, what they fail to realize is that they must come up with their own repair kit to deal with such difficulties and that casting off the dead weight of eighteenth-century constitutionalism is the first step to doing so.

This doesn’t means operating within the Constitution according to its various rules and precepts, but stepping outside it, which is nothing less than a revolutionary act.  But this is why bourgeois liberals like Klein are unable to grasp the problem in full – because doing so would mean opening the door to more change than they’re willing to admit.  “Be practical, demand the impossible” – so radicals declared in Paris in 1968.  But present circumstances have turned that dictum on its head.  Because change is impossible, people feel they have no choice but to stick with the status quo no matter how impractical it grows.

Christine Blasey Ford: Gaps and contradictions

Democrats have spent the last two years blaming Russia for Hillary Clinton’s defeat.  Now they’re blaming Republican Senator Susan Collins of Maine for the Kavanaugh debacle.  But it’s not going to work.  Once again, the only people Democrats have to blame are themselves.

Admittedly, they faced an uphill battle thanks to a confirmation process heavily weighted in favor of the executive branch.   Citing Alexander Hamilton in her epic speech last Friday, Collins laid out the conventional thinking concerning the constitutional phrase “advice and consent”: since “the president has broad discretion to consider a nominee’s philosophy … my duty as a senator is to focus on the nominee’s qualifications as long as that nominee’s philosophy is within the mainstream of judicial though.”  Assuming that his or her politics are not too outré, the only question is whether the nominee is morally and professionally fit.

This left Democrats with precious little to hold on to.  They tried to prove that Kavanaugh’s judicial philosophy was indeed beyond the mainstream by arguing that he’d strike down Obamacare and Roe v. Wade if given the chance.  But how could they be sure when, like every Supreme Court nominee before him, he refused to say how he’d vote one way or the other for fear of being “Borked”?  What evidence could they come up with to the contrary?  How could they respond to all those legal eminences arguing that he was the best candidate in years?  In a Times op-ed that he’ll no doubt regret for the rest of his life, a very liberal and very smart Yale law professor named Akhil Reed Amar described the nominee as nothing less than stellar:

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move.  Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.”  In picking Judge Kavanaugh, he has done just that.

Conceivably, Democrats could have held Kavanaugh’s feet to the fire by exploring his role in approving the use of torture as a member of George W. Bush’s White House staff.  But since they’ve never shown the moral courage on that score before, how could they do so now?

That left the question of moral competence.  This is where liberals took a bad situation and made it worse.  In bringing in Christine Blasey Ford, they didn’t understand that it would not be enough for her to be good witness.  Since it was bound to be a matter of “he said, she said,” rather, she’d have to be a great one whose story would be so convincing as to reduce Kavanaugh to a mass of Queeg-like twitches and tics.

She didn’t.  Kavanaugh’s rebuttal turned out to be unexpectedly strong, while, as one would expect with a 36-year-old account, Ford’s version turned out to be riddled with gaps and contradictions.  How could she be “a hundred percent certain” that Kavanaugh had attacked her when she was just fifteen but uncertain about so much else: where the attack occurred, how she had gotten there, who had driven her the half-dozen miles home, and so on?  Why didn’t a good friend who was also at the party telephone to ask why she had left so suddenly?  Why didn’t any of the four people who were allegedly present corroborate her account?  A sworn statement by an ex-boyfriend with whom she lived for a half-dozen years was especially damaging.  Ford said she had taken a polygraph to substantiate her charges.  But where she testified that she had never advised anyone else on how to take such a test, her ex said that she had coached a roommate who was applying for jobs with the FBI and the US Attorney’s office.  “Dr. Ford explained in detail what to expect, how polygraphs worked and helped [her] become familiar and less nervous about the exam,” he said.  “Dr. Ford was able to help because of her background in psychology.”

Where Ford said she suffers from claustrophobia and a fear of flying, the boyfriend also said she lived in a 500-square-foot home in California and that the two of them had flown around Hawaii, “including one time in a propeller plane.”  As University of California psychologist Elizabeth Loftus, who got her start exploring “recovered memory” in child-abuse cases, explains in an excellent TED talk:

If I’ve learned anything from these decades of working on these problems, it’s this: just because somebody tells you something and they say it with confidence, just because they say it with lots of detail, just because they express emotion when they say it, it doesn’t mean that it really happened.  We can’t reliably distinguish true memories from false memories – we need independent corroboration.

But then something strange happened.  The Democratic Party’s #MeToo wing stepped in and announced that such evidence was irrelevant because an accusation of sexual assault was enough in and of itself.  Protesters invaded Capitol Hill with signs reading, “We believe all survivors.”  They wrote “Believe Women” on their hands and chanted, “We believe women,” while pumping their fists.  “If their stories are credible, as Dr. Ford’s story is,” said Democratic Senator Mazie Hirono of Hawaii, “they need to be believed.”  According to Democratic Senator Kirsten Gillibrand of New York, sexual assault victims were shocked that anyone would question Ford at all.  Watching her testify, Gillibrand said, “they saw men in power who were believing other men in power over women who suffered gravely.  They saw that disbelief and dismissiveness of women and they felt disbelieved and dismissed themselves.”  To doubt was to be part of the patriarchy.

This is not just nonsense, but undemocratic nonsense.  Democracy is not some faith-based doctrine, but one resting on reason and evidence.  As anyone who has taken part in a union-organizing drive can attest, you can’t just ask a worker to sign up and then call him fascist if he balks. To the contrary, you’ve got to argue and explain why a union is important, listen very carefully to his counter-arguments, and then respond accordingly.  Not only doesn’t emotional blackmail work in such instances, it’s invariably counterproductive.  Ford supporters who stamped their feet, crying believe, believe, believe, were thus counterproductive as well.  By implying that corroboration is irrelevant and that questioning is immoral, they insulted the intelligence of those wavering in between and fairly pushed them into the arms of the GOP.

“I have been alarmed and disturbed … by some who have suggested that unless Judge Kavanaugh’s nomination is rejected, the senate is somehow condoning sexual assault,” Collins declared on Oct. 5.  Democrats hate and despise her for saying this, but she was right: that’s just what Hirono and Gillibrand implied.

The desperation of the Democrats is understandable.  They’ve won the popular vote in six out of the last presidential elections and hence can argue that they’re more popular, or at least less despised, than the GOP.  Yet they’re victims of a super-antiquated Constitution that locks them into a minoritarian ghetto.  With an Electoral College that triples the clout of rural white states like Wyoming, Montana, and the Dakotas, a senate that allows the 54 percent of the country that lives in just ten states to be outvoted four to one by the remainder, and an increasingly unrepresentative House due to rampant gerrymandering, they’re victims of a political structure that more and more favors the GOP.  They were therefore frantic to prevent the sole remaining semi-liberal institution in Washington to come under the Republican dictatorship.  But as members of an outrageously undemocratic senate, they couldn’t help stoking a liberal-feminist #MeToo movement that is just as authoritarian as anything produced by the GOP.

They made fools of themselves in the process while doing nothing to stop the general rush to the right.  If anything, they added to it.  The Kavanaugh debacle proves yet again that the  crisis of American democracy is nothing if not bipartisan.