What can we make of the latest constitutional crisis? Most prominently, it is a grudge match.
Democrats on one side say: We do not want to draw up impeachment articles. We want to conduct an impeachment inquiry. This is a matter of moral principle. We cannot let the executive branch claim this kind of power. We have to find out the truth about these matters. The only way to find the truth is to force these people to testify.
Republicans on the other side respond: No way we’ll give you that, my friend. We dare you to impeach. See what that gets you. You spied on our campaign. If you think we won’t retaliate with everything we have, you are mistaken. You tried to use DOJ against me for the last two and a half years. Now I’m going to use it against you. See you at the dueling ground.
Thirty years of partisanship
We used to observe that these two parties are not principled combatants. Whatever they say, they want power. Whatever the founding fathers might have thought or taught, the parties insist they cannot share power with another faction. You share power in a republic, and no one pretends we have a republic any longer. Power is indivisible; therefore we have to go for all of it. Any talk of compromise is for fools.
More recently, it has become apparent that this match involves more than a contest for power. The two sides just hate each other. By the 1880s, the Hatfields and McCoys could hardly remember why they fought. They did not exact retribution in order to gain power. They exacted retribution because they hated each other, and revenge was sweet. The feud began during the Civil War, and ended almost forty years later. It was a blood feud. Many died.
The current feud between Democrats and Republicans began in 1987, when Ronald Reagan nominated Robert Bork to a seat on the Supreme Court. Before that, the parties fought battles over Cold War defense policy, appropriations, abortion, civil rights, and of course access to power in Washington. Overriding desire for revenge, personal ridicule, rabid scorekeeping outside of elections, pointless arguments, contempt for your opponents, neglect of leadership for political advantage: all these characteristics, present in embryo before Ted Kennedy attacked Robert Bork, gradually grew into the party warfare we witness today.
This war did not begin with Trump. It will not end with him. It’s hard to know what will end it, but its resolution does not depend on who sits in the White House. In fact, the extreme concentration of power in the executive branch merely intensifies conflict between the two parties. As J. D. Tuccille writes, if you want to reduce partisanship, reduce the stakes. If governmental power weighs lightly in the balance, so too the spoils of war become less attractive. People don’t fight when nothing’s at stake.
You can see the stakes in Supreme Court battles. Suppose, at the time of Roe, the Court had said, “We do not rule on matters that concern families, physicians, pastors, and community groups. State legislatures should not interfere in these matters, either, but we do not interpret the Constitution in order to coerce state legislatures.” That outcome would not have pleased abortion rights advocates, but it would have been consistent with our constitutional traditions and history.
That is not what Justice Blackmun wrote. Instead he laid out a detailed calendar for abortions, based on trimesters. Few constitutional scholars, even abortion rights advocates, judged it a solid piece of legal reasoning. Most of the skeptics questioned its foundation in a legally obscure right to privacy, or dismissed the decision as goal-driven hand waving, not worthy of the Court. Robert Bork made a simple observation: you cannot find a right to an abortion – or a right to privacy – in the Constitution. He explained why. That made him an enemy to those who aimed to overturn state laws that restrict abortion.
You see then how high stakes increase partisan battles. If legislatures, not the Supreme Court, adjudicate differences over abortion law, we would not have had the Kavanaugh spectacle. Kavanaugh would still be a dick, Dianne Feinstein might not have betrayed Christine Blasey Ford, and the Senate Judiciary Committee might have actually compared Kavanaugh’s qualifications as a jurist with other possible nominees. As it was, we had another high stakes battle because one party feared it could lose a victory it had won in 1973, a case the Supreme Court should not have heard in the first place. The Court does not exist as the country’s legislature of last resort.
Nor should the Court ever adjudicate contested presidential elections. Separation of powers means that Congress decides political questions, the Court decides legal questions based on the Constitution, and the executive administers the laws. Instead we have an executive that administers laws made by commissioners; a Court that, since Bork and Bush v. Gore, has lost almost everyone’s respect; and a Congress incapable of almost anything except cheap drama. Is that what Kennedy wanted when he delivered his speech against Bork nearly thirty-two years ago? I doubt it. He wanted to keep Bork off the bench, and he let his political passion on the issue get the better of him. In killing Bork, he set off a feud that has not stopped.
A friend of mine used the phrase ‘constitutional crisis’ to describe the current battle between the president and his antagonists. I’m afraid my voice took on a scornful edge. I won’t trace the exact conversation this late at night, but I will say Democrats continue to fall into the same trap they created for themselves the moment Trump won the 2016 election.
What is the trap? They want to reverse the results of the 2016 election. Virtually all of their political energy at the national level flows toward that goal. Who is ‘they’, and what does ‘reverse’ mean? ‘They’ refers to party leaders most vocal or reported in the mainstream media, and of course journalists who decide what to say about Washington’s controversies. ‘Reverse’ means get him out of office before the 2020 election, the sooner the better.
I could list a failure roll of things they have tried. These attempts have not strengthened Trump’s approval ratings, but they have, I believe, increased the likelihood he will be reelected. When Mueller submitted his report on March 22, Democrats had an opportunity to rethink their strategy of challenge and removal. After two months, it’s clear they have not, and do not plan to change their approach between now and the beginning of the primary season. This approach will fail to remove him, and fail to win support for the candidate they select.
Yes, the party could select Joe Biden, who may be able to persuade the party, or rather redirect the party away from its strategy of challenge and remove. Redirection may be too late by then, but a lot can happen between July and November 2020. Remember how much happened during those months in 2016, none of it good for the Democrats.
You have heard me say a lot of critical things about Trump here, and I would not retract a word of it. Amid the criticism, his opponents have to remember that he has good instincts, and he is canny. His opponents, namely the Democratic party, have to develop strengths to counter his strengths, and of course take advantage of his weaknesses. They have to protect their own weaknesses, to prevent Trump from taking advantage of their vulnerabilities. The challenge and remove strategy accomplishes none of these things.
When Mueller’s investigation didn’t work – that is, when his report did not reach the conclusions Democrats wanted him to reach – they continued to make frontal attacks on the president. The media are happy to dramatize every move, but in fact the whole play has become boring. The only place that cares about Washington politics is Washington. Meantime, the disorientation, disbelief, and resentment that elected Trump two and a half years ago still lingers. His supporters do not blame Trump for that fact. They blame Trump’s enemies.
The consequence of anger is that Trump’s supporters will not forsake him. The consequence of boredom is that some portion of voters who lie between Trump and the Democrats will stay home or vote for third-party candidates. The in-between bloc is large – almost half of the electorate. We do not know how voters in this group will distribute their votes during the general election. We do know that Democrats reduce their chance of victory if they cannot force themselves past their desire to challenge the 2016 result. If they do not look ahead to a new election, they will lose again.