Monday, November 14, 2016

The Reichstag Fire

If history is any guide, here is how it will happen. There will be some kind of incident, maybe a terrorist attack here or abroad, maybe some act of urban violence. Just as happened after 9/11, this incident will be used to justify the imposition of emergency powers: Restrictions on civil liberties, restrictions on press freedoms or use of the internet, expanded surveillance of Americans, stricter immigration controls; unfettered arrest and detention. Donald Trump has already expressed support for curtailing freedom of the press, and shutting down parts of the internet. He has already called for "registering" Muslims and curtailing their entrance into this country; for torturing prisoners; for tearing up treaties. If he follows through, we are on the road to a different form of government.

We could always hope that Trump won't actually implement these proposals. Maybe his bark during the campaign was worse than his bite. Maybe, as many have said, he doesn't really want this job, didn't expect to get it, and will just enjoy being president the way a reality show contestant enjoys winning the contest, without showing much interest in actually governing the country. I would not count on this outcome. The reality of power is too intoxicating. Given the opportunity, few shy away from exercising it, especially if they are as enamored of themselves as Donald Trump appears to be. We should therefore fully expect that Trump will try to do most of the things that he has repeatedly promised he will do. As I am suggesting, Trump may wait for a suitable pretext to get public opinion on his side before implementing some of his more dangerous ideas, and by that time it may be too late for the political system to resist.

The government's expanded powers might not seem unacceptable at first. Most people will probably support them. We will get used to showing our papers and alerting the authorities to suspicious behavior. And mass protests probably won't be effective in preventing these expansions of executive power; instead protests will probably be used to justify even more curtailment of freedoms.

Unlike the expansion of police powers that we allowed after 9/11, when the government paid some attention to avoiding profiling, and President Bush went out of his way to assure Americans that Muslims were not being targeted, I would not expect the same degree of care in the next expansion of power. Candidate Trump has already been explicit about his desire to engage in profiling and targeting of various minority groups.

I would also expect that crackdowns against allegedly dangerous elements in the country will start to take on a more political cast, and that Trump will not hesitate to paint his political opponents as terrorist sympathizers, or coddlers of disparaged groups, thus making opposition seem illegitimate.

Given the prospect that a more authoritarian form of government will emerge from a Trump administration, and that by the time it happens, it will be too late to resist, it is understandable that demonstrations and other forms of resistance are already occurring only a few days after the election. My fear is that these demonstrations may end up being counter-productive. First because it is offensive to our electoral process to protest the results of a fair election. Second because demonstrations will themselves be used as a justification for new security measures in the name of law and order.

If mass protests won't protect us from the gradual accumulation of executive power, the expansion of legalized discrimination, and increased restrictions on freedom of expression, what will? I draw some comfort from my faith in the federal judiciary, and our country's strong commitment to the rule of law. Donald Trump can be expected to press the courts to recognize expanded executive powers. In keeping with past behavior, he may try to intimidate judges at all levels. He is no stranger to litigation, and would probably relish a fight in that forum. We have to have some confidence that the third branch of government will rein in any excesses, as it was designed to do. People are worried about who the next president will appoint to the Supreme Court. It's an important issue, but even more important is whether judges of integrity, from the district court level up to the Supreme Court, remain free to halt unlawful expansions of governmental power, and whether their orders will be respected.

Many of the concerns being expressed about the next administration revolve around policy issues: health care, women's rights, environmental regulation, education, etc. Of course these issues are important, but we have to respect the right of those who win elections to affect policy. And we ought to work together with political adversaries to find common ground. To focus only on policy issues, however, is to treat this election as a normal transfer of power from one party to the other, and perhaps to lose sight of serious looming threats to the rule of law, to our democratic process, and to the protection of Constitutional rights and liberties. These are the values that define our nation, and that we must protect vigilantly above all else.

Wednesday, September 7, 2016


Thursday, July 14, 2016



Thursday, June 30, 2016


Monday, March 21, 2016


Friday, March 18, 2016

Why Garland?

From the Senate Republicans' point of view, the Garland appointment is clearly the best deal they could possibly hope to get, assuming that they have to accept an appointment by a Democratic President. He is the Chief Judge of the most prestigious court in the country next to the Supreme Court, a man with unimpeachable credentials, and a political moderate. Garland is also 63 years old, meaning his tenure on the Supreme Court will be limited. Their only better alternative is to elect a Republican President in November, a prospect that has to be regarded as somewhat less than a certainty, and also an outcome of which not all of them are so enamored, given that the Republicans' leading candidate has been emphatically denounced by both the last two Republican presidential candidates, and that he is likely to transform their party in ways they might not find so comfortable. The implicit threat is that if they don't confirm Garland, President Hillary Clinton will put forward a new nominee much less to their liking.

So why did President Obama "give in" to Senate Republicans and appoint such an acceptable candidate, instead of trying to make a more bold choice? President Obama's tactic is already encountering a small amount of displeasure from his own base, and runs counter to what some other presidents have done when they spar with the Senate over confirmation of a Supreme Court nominee. Reagan, for example, played to his base by putting forward the very conservative Robert Bork, but when Bork was rejected by the Senate, Reagan backed down and submitted the more moderate Anthony Kennedy. When Nixon's conservative pick Clement Haynesworth was rejected, in a fit of pique he first tried to double down and submit someone even more unacceptable to the Senate, Harrold Carswell, but Nixon eventually relented and appointed Harry Blackmun. President Obama is making the opposite play, giving in to the Senate up front by appointing a moderate, rather than provoking them with a liberal.

Conventional negotiating strategy suggests leading off by demanding even more than you expect the other side to agree to, leaving plenty of room to back down later after the other side's expectations have been set. On the other hand, there is also a time-honored technique sometimes employed in labor negotiations, sometimes in eminent domain negotiations, sometimes in negotiating contracts with athletes or actors, less often in litigation settlement negotiations, for one side to throw out the best offer (from the other side's point of view) that they are ever going to make right up front, to let the other side know that the more they haggle, the worse the deal will get for them. The technique has some serious risks, but it has some real strengths also. It makes sense, for example, when time is limited and appearances are important. It appears to be the game the President is playing here. If he chose a more conventional strategy of nominating a liberal judge, there is always the possibility that Republicans could have still defeated him by raising objections on the merits, holding extensive hearings, and running out the clock. Given that the Republicans had already announced that they would not do that, but would instead simply sit on whatever nomination the president made, it makes much more sense that Obama put forward a name to which the opposition could have no valid objections on the merits. Had he started off with a left equivalent of Bork or Haynesworth, that would only have lent justification to the Republican position.

It already appears that the president's strategy is working, since we are already seeing some backtracking from the Republican side. Maybe, some are saying, we would confirm Merrick Garland in the lame duck session of Congress after the election. Of course that would be inconsistent with the rationale they have been giving for refusing to consider any nominee, which is that it should be up to the president the voters choose in November, but no matter. Allowing a vote in the lame duck would still give Senate Republicans the chance to grab the best deal they can get after finding out whether their alternative looks any better.

So far all we're hearing from the White House is that there is no reason to wait until the lame duck session in December. But I wouldn't be too surprised if President Obama's next negotiating move is to tell Senate Republicans that if they don't confirm this nominee before the election, his name is going to be withdrawn. Deadlines are also a risky tool in negotiations, but they also can be used as a display of strength. I don't usually counsel parties in negotiations to employ deadlines and ultimatums, because too often parties need to back down from them when they are tested. The tactic might work in this case, however, depending on how bad the Republicans' November prospects end up looking this summer. On the other hand, President Obama may feel no need to add additional pressure, and he also probably feels that Merrick Garland would be a great addition to the Supreme Court, even if he has to wait until December for that to happen.