The high road?

Apparently, according to the N. Y. Times, Democrats think they’ve been taking the “high road”, and have been debating whether that’s a good idea.

What on earth do they think the “high road” and the “low road” are?

Apparently, Trump’s Tourette’s-like verbal spasms on Twitter are the “low road”, with Michael Avenatti being, perhaps, the vision of a Low Road Democrat.  What the supposed appeal to the public would be of that sort of thing indulged-in by the Left, I don’t know.  The German attempts to create a Killer Joke in the old Monty Python sketch come to mind.

But what’s the “high road” Democrats believe they’ve been taking?  Supporting Leftists who hound Trump administration members out of restaurants and Antifa supporters as parts of the base who engage in merely “controversial” tactics?  (Bernie Sanders, to his credit, came out unequivocally against that.  But he’s not a Swamp-dweller.)  Thinking they can spike a Supreme Court nominee based on 36-year-old allegations that are totally unsupported by any evidence, including that of the accuser’s best friend from those days?  Seriously encompassing talk of eliminating the equal state representation in the Senate, the Electoral College, or the Supreme Court, for God’s sake?  That’s the “high road”?  True, most such statements appear in academia or serious media outlets first.  But having a sitting U.S. Senator condone harassment for political purposes and paying no price seems to me to cross a major line.

One thing I did notice about the above-linked Times article was the complete absence of any perspective originating from the public.  It’s the elite equivalent of a TV show or movie set in, and about, Hollywood itself.  Let me, to quote a show beloved of the Left, The West Wing, spill this out on the stoop and see if the cat licks it up:

The true success of any idealistic movement is not in getting complete control of Congress and the Executive branch to pass this or that law.  The true success is not in playing administrative-agency tic-tac-toe.  And the true success is not in Supreme Court decisions imposing blanket rules rationalized with circumbendibi about 150-year-old Amendments.

The true success is in persuading ordinary Americans in their private hearts.   When done, no opponent can destroy it.  Anything else, you have no right to expect won’t ever go away.

A victory for due process, or the confirmation hearings of Grand Moff Tarkin?

I hope you have energy for one more damn blog post about Brett Kavanaugh, who has now been confirmed to the Supreme Court.   I don’t think herein you will discover any new or profound points, but perhaps.  I deeply regret and apologize for my lack of editor.

Megan McArdle and Jonah Goldberg were right, of course, that there was no good outcome, at the end.  Either the Left was going to be furious at having been balked and at having a woman’s accusations of sexual assault and attempted rape be disbelieved enough to not spike a nomination to the Supreme Court, or the Right was going to be furious at the nakedly political attempt to ambush a nominee at the eleventh hour with accusations of vile crimes that could neither be proven nor disproven, despite the Democratic Senator in question having had the accusatory letter for months without revealing it and despite the fact that even the people named by the accusers as having been there declined to back up the details or substance of the accusation.

I was and am on the side of confirming Kavanaugh.  Naturally I’m glad how it turned out– in that one respect.

To Kavanaugh himself I am indifferent.  If credible charges of any offense had been made back in the summer and he had backed out, or if Trump had withdrawn his nomination, and then Trump offered up someone else, I would have been fine with that.  The way it happened, though, made the stakes rather different than merely the identity of the person warming the ninth seat.  The pathetically obviously political quality of the timing of the release– to try to delay matters past the midterm elections next month– the hypocrisy of the Left (for example, in having covered up and apologized for Bill Clinton’s non-teenage mashing, or their apologetics for the crimes of black youths of a similar age to Kavanaugh in 1982, arguing that teenagers shouldn’t be held to as high a standard), and the Waterford clarity that this was about revenge for denying Merrick Garland a vote adds up to the unavoidable conclusion that rationality had nothing to do with the Left’s position.  Which was more or less, to blither, fulminate and fling any shit that comes to hand, no matter how vile.

The Left’s position, when not purely partisan, is essentially one of emotion, and, depth of rage notwithstanding, it is still not acceptable to make nothing more than emotion a policy consideration.  Emotion will, true, always play a role in human affairs.  Voters need not hew to any standards but their own, and the fear of voter anger does affect politicians.  But politicians must at least pretend to be rational.  There has to be a real policy issue at stake which is argued to be more important than the other issue.  For politicians, it cannot openly be “the depth of my side’s emotions must be more important than your reasons”, especially when that issue is something central, like due process or the Rule of Law.  And, momentary fluctuations notwithstanding, it has in the end to be justifiable emotion.  Emotion that one side has stirred up to a fury pitch out of a sense of identity does not qualify.

Voters on the Right got angry, too, of course, and that played a role.  But the Right’s position is one of basic prudence and common sense: that if this is all that it takes to spike a nomination, we will all have consented to race to the bottom in terms of standards, and we’ll get a steady stream of accusations from the mentally unstable and cheap opportunists willing to lie.  Even sincerity, which Kavanaugh’s first accuser displayed, is not enough.  It might not be enough even with events only a year old, because the unreliability of memories and eyewitness testimony is well-known, but most certainly memories of events 36 years ago which no one else from that time and place supports, making an allegation that the rest of Kavanaugh’s life seems to belie, are not enough.

So the Left turns out to be who’s enraged, and will spin this into a political Just-So story, some new component of their identity narrative, along the lines of the confirmation by the Imperial Senate of a glib, fast-talking Grand Moff Tarkin making all the right sounds.  But rage and storytelling and the rationalization of the imposition of end results are the Left’s normal modus operandi.  How is this different?  And in most respects other than taxes and the 2nd Amendment the Left has gotten most things they wanted for the past half-century.  Honestly, I have no idea what they think they can rationalize to do in retribution, that they haven’t already or wouldn’t have done before.  Spent options and burnt bridges make for poor leverage.

Blue Tribe

The Founders wouldn’t want Kavanaugh’s nomination to continue,” argues Laurence Tribe.  Briefly, his argument runs that Supreme Court nominee Brett Kavanaugh might, if confirmed, be called upon to help decide about evidentiary matters that might affect whether Trump is, if impeached, convicted.

This is a weak argument for several reasons.

First, a hypothetical U.S. v. Trump case that a Justice Kavanaugh would have to help judge relies on the veracity of the claims of someone who sounds pretty untrustworthy to begin with, who is under pressure from prosecutors and likely to be opportunistic.  And let’s be frank: campaign finance violations or paying off women to keep silent (Trump has been paying people off to keep quiet for ages) are a snooze, regardless of the legal technicalities surrounding them.  To most people, the ostensible beneficiaries of the public trust, they are malum prohibitum, in contrast to the malum in se of conniving in the burglary of an opponent’s campaign headquarters.  Is the disconnect not obvious?  Trump had already won the nomination by shocking actions that flew in the face of all the laws of modern politics.  How likely is it that he’d have started thinking these particular women’s stories would derail his election, such that he needed to go out of his usual silence-buying ways to make extra certain they keep quiet?  Buying their silence was probably force of habit.

To return to Tribe’s argument, though, it’s extraordinarily unlikely that Trump could seriously influence a Supreme Court decision with a particular nomination.  Even if Trump managed to choose from a long-established list of extraordinarily well-qualified candidates the one judge most likely to rule in his favor (which would be amazing sophistication for someone as stupid as Trump’s opponents say he is), it is only one vote.  What if otherwise the votes are 4-4?  Well, as in the 2000 and 2016 Presidential elections, your real problem is having it be that close a decision in the first place.  One wonders what Chief Justice Roberts would say to his old law school professor, Laurence Tribe.

It also seems clear that Supreme Court justices feel, if anything, a need to avoid the appearance of partiality toward the Presidents who appointed them.  In the leadup to Nixon’s impeachment, Tribe admits, three of Richard Nixon’s appointees on the Supreme Court voted with their colleagues, 8-0, to force Nixon to surrender the “subpoenaed tapes and documents” making his impeachment more likely, and his fourth appointee, Rehnquist, recused himself.

But that’s different, says Tribe, because politics have gotten so polarized that a similar case today surely would not be unanimous.  Coupled with his argument that the Senate should not take up Kavanaugh’s nomination, that’s tantamount to saying that polarization should actually have Constitutional or legislative significance in itself.  In any case, the country had already gotten pretty polarized by 1994, the year of the “Contract with America“, when Bill Clinton nominated Stephen Breyer eleven days after Paula Jones filed her sexual-harassment lawsuit against him.  At that time there was a decent chance that a serious lawsuit against the President could wind up in the Supreme Court.  Of course, Clinton didn’t think he’d be impeached over his tomcatting, but the point is that neither this appointment nor his previous one (Ruth Bader Ginsburg) made any difference at all to the 1997 Supreme Court decision against him.  Clinton lost, 9-0.

That, in fact, is quite a common result in the Supreme Court, whether involving Presidents or not, and more common, not less, in recent years.  Max Bloom pointed out last year, “The most recent term, in fact, was the least partisan since the middle of the 20th century. Over half of the cases were unanimous, and only 14 percent were decided by a 5–3 or 5–4 split.”  Supreme Court justices are in fact famous for unpredictability and uncontrollability by the Presidents that appoint them, going back at least as far as Eisenhower’s remark that he’d made only two errors as President and both of them were on the Supreme Court.  In terms of precision tools, Supreme Court nominations make boycotts look like laser scalpels.

Furthermore, implying that things ought to be different because they have gotten so polarized begs the question.  Polarization is why Trump is in the White House to begin with, elected by an American public having full knowledge in advance that (in Salena Zito’s words) he has “the morals of an alley cat”.  (Is the policy basis for impeachment the removal of a President that the electorate didn’t intend?)  And if polarization is the bugaboo, how did we reach this sorry state?  To name one reason, because Harvard Law School professors and their logic have very little to do with most Americans these days.

It takes a special brand of Rube Goldberg thinking to go from conjecture to might to possibility to strained argument, though I suppose logical contortions and circumbendibi are an occupational hazard even for law professors who don’t share conspiracy theories about Trump.  Perhaps Tribe should have eschewed his strained logic and simply quoted the Supreme Court justice he clerked for: “I know it when I see it.