Endless campaign's unspoken damage.

Admission 1: I’m a long-term political junkie, have been since elementary school.  Regardless of who is in office, I never miss a State-of-the-Union.  I’ve watched political conventions since they’ve been broadcast on TV, some years nearly gavel to gavel.  I watch presidential press conferences, major speeches/events on C-Span or YouTube including the funerals of, among others, Mario Cuomo and Antonin Scalia.  Needless to say, passing up a vote is never an option.

Admission 2: I haven’t seen a single presidential debate — Democratic or Republican — in this primary election cycle.  Why?  I could say watching them in this bizarre year is just too painful, and that would be true.  A lot of “ink” has been devoted to the vitriol in both the campaign and our current politics.  Some suggest how unprecedented the tone and outlandishness.  Perhaps we haven’t recently witnessed its like, but it has all happened before.  I’m reading historian William Leuchtenburg’s new book, The American President: From Teddy Roosevelt to Bill Clinton.  At 93 he’s hard at work on the companion Washington to McKinley volume.  What strikes me in the reading is how rough and messy our politics has been throughout.  That impression was reinforced by a Charlie Rose interview with Ron Chernow, whose biography of our first Treasury Secretary inspired the hit show Hamilton.  The competitive mean-spiritedness of our idealized Founders would have made perfect fodder for today’s cable and Twitter. That doesn’t make what’s afoot today less disconcerting, less off putting.  But what’s keeping me less engaged isn’t nasty discourse, it's fatigue.

Back in April 2014 I posted a blog that began with these words, “The envelope was in my mailbox, the return address: “Ready for Hillary 2016”.  My immediate response: not so much — certainly not yet.  Beyond all else,” the post continued, “I am so not ready for two and a half protracted years of presidential politics.”  Indeed, the 2014 Congressional elections were still months away, ones that seemed of more immediate importance.  I saw the solicitation “as a distraction at the very moment when we can ill afford to avert our attention from the immediate task at hand.  Do her supporters", I asked, "not realize how important it is to hold the Senate; are they intentionally trying to undermine our sitting Democratic president?”  For Clinton, the campaign, albeit unannounced, was underway despite President Obama’s being barely in year two of his second term.  I’ll get back to that.   We all know the result of that lack of attention — that implied dismissal of a sitting majority elected president.

Help me here — two and a half years?  No other democracy in the world spends even a fraction of that time in campaign mode.  Indeed, some restrict national elections to a matter of weeks.   Campaigns are shorter and, yes, more citizens vote.  In an all time record year like 2008 only 57% of eligible voters cast ballots for president and that number declined to 54% in 2012; less than half of them vote in primaries.  For sure, money is a huge problem in our politics.  We spend far more on elections than anyone else on the globe.  Citizens United was a horrible decision, but I don’t think campaign spending is the primary problem.   The real killer is time; endless distracting and numbing months of speeches evoking largely manufactured “news”.  To be sure, time and money are related  — it takes bundles to sustain extended campaigning, but solve the time problem and fixing the money problem will follow.  The same is true, though clearly on a smaller scale, for congressional elections.  It’s no wonder that so little gets done in Washington when many Senators and Congresspersons are on the road not in their seats on the floor.  It’s sometimes hard to tell which is their primary job, carrying out legislative duties or campaigning.  All too often the two are indistinguishable.

It’s claimed that the current presidential campaign is evoking considerable interest.  Perhaps that’s the case, but I wonder how many Americans really know much about where candidates stand on substantive issues, or even if they have any coherent policy positions.  It should be instructive that Donald Trump with the fewest, a person given to what I’d call hour-long “tweet speeches” gets the most press.  Even if Americans had more than an infant’s attention span, and we don’t, there is just so long that anyone can honestly spend following these endless campaigns.  In fact, rather than enhancing they compromise democracy, which alone argues for a more humanly reasonable campaign season.

But what is the real and immediate damage of endless campaigning?  It undermines orderly governance and by extension all our interests.  A prime example can be found in the political charade surrounding the filling of a vital Supreme Court seat.  Returning to my April ’14 post and that independent (if you can believe that) solicitation by Hillary supporters.  I posed the question then about the appropriateness of the timing, only a year and a half into Obama’s four-year term.  In that context, isn’t it hard to question the Republican’s current position that effectively his presidency is over with less than a year to go?  I’m by no means suggesting that Hillary is to blame for the current situation, certainly not purposefully so.  But drawing the connection, inadvertent as it might be, is not too much of a stretch.  It is certainly a question that I would hope she and those who put that letter in my mailbox are asking of themselves.

Of course, what Clinton and others in both parties before her (including Obama) have done in reflects a systematic problem.  If they are guilty of anything it is following the “regular order of business” or of submitting to an unending campaign habit that has measurable and predictable consequences.   The nomination of Judge Merrick Garland is clearly falling victim to that order.  In most places — United Kingdom, France, Germany, Israel and Canada, for example — campaigning would still be months away.  Contending that a president or prime minister who had been elected for, in our case, four years was no longer accorded his Constitutional power nine months early would be both untenable, even laughable.  It is also totally inconsistent.   Barack Obama can send American troops across the globe, he can fire (one of Trumps favorite prerogatives of office) cabinet and many other government employees, and he can hire without consent anyone who doesn’t require congressional approval.  He can declare emergencies and send aid to victims of all manor of disaster.  Of course he can order up and fly Air Force One to Cuba and beyond.  I could go on, but you get the point.  Rest assured, if the Kentucky River overflows its banks or some coalmine disaster occurs in the state, Senator McConnell will want, indeed demand, the sitting president to exercise those powers.

Endless presidential campaigns don’t only induce my and your fatigue, they work against exercising our civic responsibilities; they endanger a full functioning government.  While on the campaign trial, senators absent themselves from their sworn duties and governors from theirs for months on end.  They don’t do so without often high cost.  Once in campaign mode, which sadly these days means most of the time, every discussion and every decision is undertaken in a political context.  Will this advance my personal or my party’s interests?  Will it lead me/us to, or keep me/us in, power?  Will it damage the “other side”?  Lot’s of questions.  Note that “will it advance the public good” is not among them.

We’re going to slug through this endless election cycle and most probably others to follow.  What I wonder is when will we admit that it’s all too much, that the cost, not only financial, is far too high, the risk far too great.  My fatigue this year — and surely I’m not alone — should be a wake up call.  The endless campaign's impact on filling Scalia's seat should make us all awake in a cold sweat.  Time we start thinking about breaking this most stupid “norm”.  And please don’t tell be it’s the “new normal”, the ultimate copout cliché of our time.

Everything has changed.

I started writing this post yesterday morning with the following opening paragraph:

Make no mistake; nothing will be at greater stake come November 1st than the future of the United States Supreme Court.  The next president is likely to appoint the justices that will determine the court’s direction in the foreseeable future.  Policies, domestic and foreign, can be changed by elections.  Only rarely can the court be rebalanced.  This is one of those times.  So it isn’t only the Supreme Court that will be at stake, it is our future as a nation.

What followed, partially in the context of possibly having the first female president, was focused on the court’s three women justices and the important void they have started to fill in what, until Sandra Day O’Conner, had been an exclusive male club.  That’s still important to consider but, needless to say, is momentarily overtaken by the stunning, sudden and unexpected death of Justice Antonin Scalia.  With his passing everything has changed.  Given Scalia’s momentous Second Amendment Heller vote — one of the few times he wrote the majority opinion — it seems almost fitting that he succumbed while on a hunting trip.  If I am right that the future of the court is more at stake this election cycle than usual, his death has, at the very least, foreshortened the calendar.  Now President Obama, the former law professor, will have an opportunity to rebalance the court.  He will face enormous opposition and, given the makeup of the Senate, may not prevail.  Regardless, he has made clear his intention to “fulfill [his] constitutional responsibilities to nominate a successor”.

A vacancy on the high court with just eleven months remaining in the president’s term has the potential of creating a near term dual constitutional crisis.  First, brought on by subverting the right and duty of a sitting president to name justices.  That right being withheld would be to say the least highly divisive.  Second, the potential for creating a stalemate in which the court will be rendered ineffectual or even powerless at a time when there are so many critical cases pending.  Of course, Obama will, as he said, “in due course” put forward a nominee for the senate’s consideration.  In parallel to that, the court calendar will move forward — cases will be presented, deliberations held and votes taken.  Where cases are less controversial majority (at least 5-3) decisions are possible.  But, given recent history, one has to expect 4-4 deadlocks on many, perhaps all, of the most momentous cases.  Here decisions would revert to the last lower court decision, effectively as if the high court had never taken the case.

When the president and senate majority are in the hands of different parties, confirming court appointments are always challenging.  That is magnified manyfold when a seat on the Supreme Court is at stake.  Obama may have the potential of rebalancing the court, but his options in the kind of justice he might appoint are probably limited.  To be given any chance of approval, it will have to be someone with impeccable and widely recognized legal credentials.  She or he will also have to be someone who, unlike Scalia, is not an overt ideologue.  That suggests an open-minded jurist whose decisions won’t be fully predictable, foregone conclusions.  In our polarized time, whomever he appoints is likely to disappoint, perhaps in differing degrees, both those on the left and the right.  As Harry Enten of Five Thirty Eight suggests, the nominee is likely to be more in the mold of Stephen Breyer than say a Sotomayor or Kagan.  Note that I’m not talking an O’Connor or Kennedy, but certainly a liberal leaning moderate rather than someone of the predictable legal left.  As a constitutional scholar, Obama understands what qualifications are needed for the court.  As president, he will also be mindful of both realities of his own situation and that the court will loom even larger as an issue in the fall election.  What he does could effect the outcome.

Interestingly, Obama faces exactly the question confronting Democratic primary voters in the Clinton-Sanders contest.  Does he take into account the realpolitik of confirmation with the Senate at hand — does he make the pragmatic choice — or does he go for a-come-whatever ideologically comrade candidate?  All at once, the hypothetical of the current campaign is facing him, and us, in real and immediate time.   Obama’s record (before the last few months) would suggest that he is likely to go for the pragmatic, what’s achievable, rather than go for broke.  When it comes to the Supreme Court that may actually be the right thing to do. 

Until very recently, justices on the court evolved over time.  They may have been appointed with some ideological history and certainly by presidents of one party or another, but their decisions were not baked in from day one.  Ingoing conservatives and liberals moderated their views over time.  More important, they were able to judge cases, to the degree that is humanly possible, on the facts rather than on any pre-conceived notion or predictive ideologically driven outcome.  It was, and remains, the kind of judicial process that we would all want if presenting our case before this or any other court.

Obama has an opportunity not merely to rebalance the court, but to send a message — a reminder of what an ideal court should be.  Will he, or can he, take that opportunity at this highly charged moment?  I just don’t know, but hope so.  Would I prefer another Ruth Bader Ginsburg on the bench?   You bet I would!  Would I like to see Citizens United reversed, Roe being sustained, even strengthened, and unionism upheld?  Absolutely, and passionately!  But I’d be happy with another open minded Breyer on the court, with an Obama appointment rather than throwing the dice on what November might bring.  We’re in for an interesting few months ahead.  Expect that “due course” appointment to come sooner rather than later.