Against the Filibuster

There’s a meme that goes around Twitter every now and again: express your unpopular opinion. Based on conversations I’ve had through the years, my views on the filibuster might be unpopular with large swathes of the right and probably even the left.

I’ve never been comfortable with the filibuster. The 60-vote threshold seemed like an especially onerous and unfair threshold when it came to judicial appointments, and I advocated nuking the filibuster long before Harry Reid helpfully did so a few years ago. Therefore, I was happy when Harry Reid and the Democrats abandoned the judicial filibuster, and not just because I knew then it would eventually come back to bite them on the ass.

But the filibuster’s artificial 60-vote threshold seemed unfair even when it came to ordinary legislation. While it is not unconstitutional, it is certainly an extra-constitutional mechanism. Sure, the Senate is free to set its own rules, and the constitution’s language doesn’t prohibit a higher floor either in the context of the Senate’s advice and consent role or for legislation to be deemed as passed by the Senate. Yet it seemed then, and still seems now an extra barrier to getting things done.

Conservatives in particular view the filibuster as a device that works in the interests of limited government. And whichever party happens to be the minority at the moment values the filibuster as a mechanism to help preserve their interests. But the constitution itself is already a document designed to slow the machinery of government. The filibuster is a cheat, and arguably does more to diminish reliance on these other constitutional designs. For instance, the higher threshold to get legislation through the Senate could lead (and has lead) presidents to make end-runs around Congress. In these cases, the filibuster not only doesn’t prevent whatever ill-considered action from going through, it promotes other unconstitutional behavior from the president. It also eliminates the opportunity for compromise that would minimize the potential deleterious effects of ill-advised action.

The filibuster is also unevenly applied. Depending on the specific type of legislation under consideration, it may not even be applicable. Now it no longer is available in the context of judicial nominations. This just leads to more parliamentary maneuvering that further undermines faith in the legislative process.

As alluded to above, reliance on the filibuster draws attention away from other constitutional mechanisms designed to restrain the government. The concentration of power in the executive and judicial branches is a much more serious threat to our constitutional order. If anything, the filibuster might prevent reforms from being enacted to address those concerns. The filibuster, especially if a conservative majority ever emerged in the Senate (I won’t hold my breath), actually would become a tool of the very administrative state we’re supposed to be fighting.

The filibuster is really designed to ensure debate takes place on contentious issues. I would have no problem with a system in which failure to invoke cloture simply meant debate would continue for some amount of time. But real debate would have to take place. Then, after the pre-determined period elapsed, a vote would occur regardless of whether the 60-vote threshold is met.

I thus have no problem with the filibuster as a means of slowing down the process to allow for more debate and potential compromise. It should not be an artificially high upper threshold meaning nothing gets by the Senate without a super-majority.

Understanding Differences in Never Trumpism

A common lament in leftist (and some right-wing) circles is that #NeverTrump conservatives mouth criticisms of Trump, but by their actions demonstrate they are no better than Trumpists. For instance, Senator Ben Sasse, a very vocal critic of Trump since day one, still votes “with” Trump over 90 percent of the time, thus showing himself to be a hypocrite.

The nub of the argument seems to be that conservatives ought to vote against their ideological interests to demonstrate their solidarity with the anti-Trump cause, otherwise they will be lumped in as enemies to the people. This attitude reflects a deep misunderstanding of Trump critics and the distinctions of flavors among his detractors on the right.

To understand better, we need to step back to the primaries. This piece does a pretty good job in explaining where Trump’s support came from. It also helps explain where it did not come from. The most consistent and vociferous opposition to Trump within the Republican party came from those who labelled themselves “strongly conservative.” These were principally Cruz voters, though some preferred Rubio and some of the other candidates. In exit polls, particularly in the early stages of the primary, they were the category showing the weakest support for Trump. Support for Trump increased through each step away from strong conservatives, to mild conservatives, to moderates, and then even Democrats. As the article shows, moderate is perhaps not the best descriptor of a typical Trump supporter, though these individuals were definitely not traditional conservatives – being far less concerned with issues related to government spending, economic freedom, or opposition to abortion.

For those who opposed Trump, opposition can be labeled in one of two categories: ideology and personality. Ideological opponents of Trump deemed him to be a RINO in the truest sense of the term. He was literally a Democrat who called himself a Republican, but who still clung to many of his “big government” principles. He may have mouthed certain conservative pieties, but in his heart he remained something of an authoritarian. Conservative opposition to Trump was built largely, though not solely, on these grounds.

More moderate voters also had some ideological grounds for disagreement, but their concerns were centered more around personality: Trump was an uncouth, half-witted blabbermouth who catered to the worst instincts of his supporters. To be sure most conservative critics of Trump also felt the same way, but the points of emphasis were different. These types of voters tended to cluster around Kasich and Rubio. They are also why some of us never referred to ourselves as NeverTrumpers, because those who were most fervent in that designation were #AndNotCruzEither.

If you understand this gap in reasoning, you can understand why certain parts of the right have been more comfortable in praising and supporting Trump on policy, or have become outright supporters. The more one’s suspicion of Trump was based on ideology, the easier it is to support him to one degree or another. I am not going to get into an in-depth analysis of whether or not Trump’s presidency is truly conservative, or whether he has delivered as many conservative policy victories as his supporters claim. But he has certainly not governed against conservative principles as much as his detractors feared. (Trump’s tariff policies have been the one area where has most governed against conservative ideology, but the results of those actions have not been as severe as feared, even if not as successful as pretended they are).

Conservatives who put a good deal of emphasis on the personality side (raises hand) are not as positive about Trump as those who don’t care as much about those concerns. But they are much more sanguine about him than those whose primary concerns were attitudinal. Not only has Trump affirmed their worst fears, he has governed relatively conservatively. Because here’s the rub: while moderate Republicans distrusted Trump due to personal considerations, the most hostile of this group have moved away for more ideological reasons. Maybe it’s better put this way: moderate NeverTrumpers were barely tethered to the Republican party to begin with. Trump has pushed them over the edge because now they feel completely alienated.

I’m going to use the most recent defection as an example. Tom Nichols, author of The Death of Expertise, and a very vocal critic of both Trump and the populist base of support (Nichols makes me look like a rabid man of the people democrat in comparison), announced he is finally leaving the Republican party. Frankly I didn’t know he was in it. Let’s go over some of the reasons he provides:

Small things sometimes matter, and Collins is among the smallest of things in the political world. And yet, she helped me finally to accept what I had been denying. Her speech on the nomination of Brett Kavanaugh convinced me that the Republican Party now exists for one reason, and one reason only: for the exercise of raw political power, and not even for ends I would otherwise applaud or even support.

I have written on social media and elsewhere how I feel about Kavanaugh’s nomination. I initially viewed his nomination positively, as a standard GOP judicial appointment; then grew concerned about whether he should continue on as a nominee with the accusations against him; and finally, was appalled by his behavior in front of the Senate.

It was Collins, however, who made me realize that there would be no moderates to lead conservatives out of the rubble of the Trump era. Senator Jeff Flake is retiring and took a pass, and with all due respect to Senator Lisa Murkowski—who at least admitted that her “no” vote on cloture meant “no” rather than drag out the drama—she will not be the focus of a rejuvenated party.

When Collins spoke, she took the floor of the Senate to calm an anxious and divided nation by giving us all an extended soliloquy on… the severability of a clause.

The severability of a clause? Seriously?

It took almost half an hour before Collins got to the accusations against Kavanaugh, but the rest of what she said was irrelevant. She had clearly made up her mind weeks earlier, and she completely ignored Kavanaugh’s volcanic and bizarre performance in front of the Senate.

Nichols claims Susan Collins’s speech was the final straw for him. Let’s do to Nichols what is unable to do for Collins: take him at face value. He thinks he has been abandoned because one of the last true moderates has shown she is a true Trumpian, interested in only raw political power. Her speech, he says, was a sham because she had already made her mind up and was now just making an excuse to justify her vote.

I’ve discussed Collins’s speech, and had a much different takeaway. I can understand Nichols’s cynicism, but I don’t think he has made a convincing case in his favor. Nichols argues that Collins was biased in favor of Kavanaugh, but here he glosses over his own bias. Nichols had already expressed his opposition to Kavanaugh, and thus he dismisses Collins through his own biased prism. Kavanaugh’s testimony before the Senate was “volcanic and bizarre” only if you were already predisposed towards opposing him. For those unconvinced that Dr. Ford had adequately proven her allegations, and who thought the other allegations against him were outrageous fabrications, Kavanaugh’s performance was completely understandable. It’s okay to come to a different conclusion, but Nichols seems incapable of contemplating that Collins – and most other Kavanaugh defenders – are acting in good faith.

Nichols then says he cannot join the Democrats because of their execrable behavior, but says the Republicans were worse.

The Republicans, however, have now eclipsed the Democrats as a threat to the rule of law and to the constitutional norms of American society. They have become all about winning. Winning means not losing, and so instead of acting like a co-equal branch of government responsible for advice and consent, congressional Republicans now act like a parliamentary party facing the constant threat of a vote of no-confidence.

He’s not entirely wrong about the shift in Republican attitudes, but it is strange to make this argument in light of the Kavanaugh proceedings. The Democrats were the ones who threw every manner of hyperbolic, unreasonable argument against Kavanaugh, and that was before the Ford allegation. The Democrats never gave him a fair shot, and tried every maneuver to win by smearing him at every turn. Moreover, it’s difficult to claim Republicans were acting like authoritarians (as Nichols believes the GOP has become) when they were not the ones who seemed to abandon the concept of innocent until proven guilty during this process.

Nichols further claims Republicans have abandoned principle in pursuit of pure power politics.

Politics is about the exercise of power. But the new Trumpist GOP is not exercising power in the pursuit of anything resembling principle, and certainly not for conservative or Republican principles.

Free trade? Republicans are suddenly in love with tariffs, and now sound like bad imitations of early 1980s protectionist Democrats. A robust foreign policy? Not only have Republicans abandoned their claim to being the national-security party, they have managed to convince the party faithful that Russia—an avowed enemy that directly attacked our political institutions—is less of a threat than their neighbors who might be voting for Democrats. Respect for law enforcement? The GOP is backing Trump in attacks on the FBI and the entire intelligence community as Special Counsel Robert Mueller closes in on the web of lies, financial arrangements, and Russian entanglements known collectively as the Trump campaign.

Again, he’s not totally wrong, but he’s also not completely right. I’ve already mentioned tariffs, where Nichols has a much stronger argument. But how much has the GOP gone wobbly on national security? I, too, weep when some Trumpists shrug their shoulders at Putin’s malevolence, and Trump’s verbal sucking up to dictators is sickening. But has this actually impacted policy? When it comes to real world actions, Trump has not been a shrinking violet with regards to Russia. As for the Mueller investigation – I’ll just say it’s not as simplistic as Nichols is making it out to be.

He continues:

And most important, on the rule of law, congressional Republicans have utterly collapsed. They have sold their souls, purely at Trump’s behest, living in fear of the dreaded primary challenges that would take them away from the Forbidden City and send them back home to the provinces. Yes, an anti-constitutional senator like Hirono is unnerving, but she’s a piker next to her Republican colleagues, who have completely reversed themselves on everything from the limits of executive power to the independence of the judiciary, all to serve their leader in a way that would make the most devoted cult follower of Kim Jong Un blush.

Have they? This is a nice rant, but is it actually true? Again, presumption of innocence is an aspect of demonstrating respect for the rule of law, and I think the Democrats have been woefully worse. Nichols may be right about individual Republican Congressmen being afraid to take on Trump, but where has it manifested in disrespect for the rule of law? I’m less than convinced by this particular argument.

Nichols says its other conservatives who have abandoned their principles, not he.

Maybe it’s me. I’m not a Republican anymore, but am I still a conservative? Limited government: check. Strong national defense: check. Respect for tradition and deep distrust of sudden, dramatic change: check. Belief that people spend their money more wisely than government? That America is an exceptional nation with a global mission? That we are, in fact, a shining city on a hill and an example to others? Check, check, check.

This will hopefully be the subject of future posts, but “limited government” is a meaningless bit of shorthand offered by people trying to prove their conservative bona fides, but which proves nothing. “Respect for tradition and deep distrust of sudden, dramatic change” is the only point of substance, and it is a very good one.

So Nichols is bit more credible as a somewhat conservative Trump critic than others who have publicly said they were leaving the Republican party. But then he continues:

But I can’t deny that I’ve strayed from the party. I believe abortion should remain legal. I am against the death penalty in all its forms outside of killing in war. I don’t think what’s good for massive corporations is always good for America. In foreign affairs, I am an institutionalist, a supporter of working through international bodies and agreements. I think our defense budget is too big, too centered on expensive toys, and that we are still too entranced by nuclear weapons.

 

Not every Republican who has left the party in the age of Trump is pro abortion (I left and am most definitely not pro abortion), but it does seem like every public figure who has made a public break is. Can someone who believes abortion should remain legal really call themselves a traditional conservative? Again, this could be the subject of an entirely different post or twenty, so I don’t want to dive too deeply on this. But no. The answer is no.

As for the rest of this, I actually am on the same page with Nichols with the possible exception of being an institutionalist, but I don’t think many conservatives would have a problem with any of these points, at least in the abstract. But how does one concretely reflect these principles in the real world? Aye, there’s the rub, and I suspect Nichols might be underplaying his differences.

I’ve run longer than I intended, and perhaps more dismissive of Nichols than I meant to be. As a registered Independent I am in no position to critique someone who no longer feels they can remain in the current GOP. But I do think Nichols is indicative of a larger break within right-wing circles. One begins to wonder if Trump is the real reason for moderates to leave the Republican party, or is he simply the excuse?

 

The Four MVPs of the Kavanaugh Confirmation

Now that Brett Kavanaugh has finally been confirmed to take a seat on the Supreme Court, I would like to highlight the four individuals who played an essential part in getting him past the finished line.

I have been following politics for the better part of three decades. I admit to certain biases, and I have been very critical of all four of these individuals. But all four deserve kudos.

Donald Trump: Brett Stephens is singing his praises, so he’s done something right. I’m not sure any other Republican president would have stood firm on this nomination. Moreover, for once in his presidency Trump knew to keep quiet. Well, mostly. He couldn’t help but take some potshots at Doctor Ford at a rally earlier this week, but aside from that, he let the process play out. This might have been the best moment of his presidency.

Mitch McConnell: Ah, Cocaine Mitch triumphs again. He, too, gets credit for keeping his head down and not wavering on the nominee. Despite the fact that it is widely rumored that he was not a fan of the pick, McConnell never threw in the towel. But his role in this fiasco goes further back. He took advantage of the opening Harry Reid so helpfully provided him, and he has outmaneuvered the Democrats every step of the way. The Democrats scored some own goals, it is true, but the Senate Majority Leader took advantage and has been every bit as critical as President Trump(‘s advisors) in ensuring that originalist judges get confirmed at a breathtaking pace. The reshaping of the Court will be McConnell’s legacy, and a damned fine one at that.

Lindsey Graham; The turning point in the Kavanugh confirmation process may have been Kavanaugh’s own testimony, but Graham also changed the dynamics by his heated chiding of his Senate colleagues on the Democratic side of the aisle. Who knew that moment would cause Graham to go full Bullworth, as he’s been on a roll ever since. This picture is a wonderful representation of Graham’s newfound DGAF attitude.

What’s impressive about Graham’s shift in attitude is, unlike some of the theatrics coming from the folks on the other side, you don’t get the impression it’s a put on. He’s not running for higher office, and whatever conservatives around the country may think of him, he probably has that seat for as long as he wants it.

Susan Collins: Fifteen minutes into her floor speech, I said, “She just loves this attention.” But as she continued, I appreciated what she was doing. Though it is likely to be fruitless in the end, I think it was her attempt to calm the mobs and bring perspective on Kavanaugh’s ascendancy to the Supreme Court. Even though I don’t think too many people will take her message to heart, she deserves credit for trying.

Some conservatives have joked that her floor speech convinced them that Kavanaugh shouldn’t be confirmed. Time will tell what kind of Justice he will be. I do hope he disappoints conservatives from time to time. The entire point is that the men and women of the court are not super legislators, so I would be more disappointed in Kavanaugh if he never rendered a decision upsetting to conservatives. My hope is that if I do disagree with his vote, he justifies it in a more convincing manner than Anthony Kennedy.

So here we are. At least we can finally put this rancor behind us.

Or not.

George Will’s Bizarre Attack on Whittaker Chambers

I recently read Whittaker Chambers’s Witness, a truly superb autobiographical account of not just his involvement in the Alger Hiss case, but his early life, enthrallment with Communism, and ultimately his decision to leave the Communist movement. It is a gripping, well-written book. It provides a stunning look inside how an American communist revolutionary may be made, as well as the ways in which Communists tried to subvert the American government from the inside. Even in the wake of the fall of the Soviet Union, it should be recommended reading for anyone interested in a sort of psycho-political analysis.

After reading Witness, I happened upon this scathing column from George Will written over a year ago. Unlike many other conservatives I haven’t completely given up on Will, though some of his work is rather execrable, and this is a case in point. In a column otherwise dedicated to the wisdom of William F. Buckley, Will decides to unleash a bromide on the entire conservative movement in the age of Trump, a bromide which is not without merit, mind you. Somehow, though, Will looks to Chambers as the progenitor of this anti-intellectual, populist strain of conservatism, writing:

[Buckley], to his credit, befriended Whittaker Chambers, whose autobiography Witness became a canonical text of conservatism. Unfortunately, it injected conservatism with a sour, whiney, complaining, crybaby populism. It is the screechy and dominant tone of the loutish faux conservatism that today is erasing Buckley’s legacy of infectious cheerfulness and unapologetic embrace of high culture.

Chambers wallowed in cloying sentimentality and curdled resentment about “the plain men and women” — “my people, humble people, strong in common sense, in common goodness” — enduring the “musk of snobbism” emanating from the “socially formidable circles” of the “nicest people” produced by “certain collegiate eyries.”

This is quite a departure from what Will wrote about Chambers three decades ago. It is also a bizarre, unhinged attack that has no basis in reality.

Witness is roughly 700 pages long. Will has taken a few quotes from towards the end of the book as Chambers descibes how he felt in the aftermath of the Alger Hiss fury, when it seemed most of the intellectual class was arrayed against him. As Nathanial Blake puts it:

If Will has changed his mind about Chambers and now considers him to have been dangerously populist, that is his prerogative. But he offers only one quotation to illustrate his point, and it is cobbled together (six fragments patched together!) to the point of being disingenuous. It is an unconvincing piece of evidence, especially coming from a writer who in the same column insouciantly dismissed Buckley’s famous crack about preferring to be governed by the first two thousand names in the Boston phone book than by the faculty of Harvard.

Indeed. If anything, Buckley sounds much more like a screecher at times, particularly in Up from Liberalism, a book so tedious even I had to put it down halfway through.

Richard Reinsch and Adam White also take Will to task.

At the time of Witness, Chambers had been vilified in the press and in elite circles for his testimony against Alger Hiss’s Soviet espionage. Only a few prominent voices had defended him. And, Chambers sensed, the folks in the center of America were always with him.

Hiss and Chambers had conspired together from roughly 1935 to 1938 as members of a Soviet underground cell. As an employee of the State Department, Hiss provided documents to Chambers that he in turn handed off to Soviet handlers. But Chambers left Communism in 1938 and fled his former life as a Soviet agent with his wife and two children.  He illustrates his exitus from the Communist inferno in Witness with magnificent formulations from Lazarus, Isaiah, Dante, Shakespeare, Milton, George Fox, Ibsen, Rilke, and Koestler, among others. He also embraced Christianity but stood apart from any particular theological orthodoxy, preferring instead the stillness of the Quaker Meeting. Many leave Communist ideology, Chambers noted, but remain socialists or some type of collectivist sympathizer. In short, they only leave communism because of its violence, but not the ideology itself. Chambers’s conversion was root and branch.

In 1948 Chambers’s former life revisited him, and he was called by the House Committee on Un-American Activities to testify against those who had served with him in the Soviet Underground. Chambers provided HUAC with 21 names and all have been confirmed in subsequent evidence as noted in John Earl Haynes, Harvey Klehr, and Alexander Vassiliev’s Spies: The Rise and Fall of the KGB in America (Yale University Press, 2009). Hiss was convicted in a 1950 federal trial for perjury, ostensibly regarding espionage, with the statute of limitations prohibiting a conviction on that grave charge.

The modern-day legacy of Witness is reduced by Will to little more than a contributor to the “screechy and dominant tone of the loutish faux conservatism that today is erasing Buckley’s legacy of infections cheerfulness.” Will does little to connect Chambers’s actual words to the modern-day problems that Will is lamenting. Nor does Will pause to concede that maybe, just maybe, the problems he’s lamenting could much more easily and directly be traced to the more recent media phenomena. Instead, Chambers’s autobiography, usually regarded by friend and foe alike as one of magnificent spiritual and philosophical intensity, is traduced by a conservative essayist regarded by many as a giant in his own right. Why?

The last question is unanswerable. Will has produced vastly more good than bad in his career, but this attack on Chambers is unconscionable.