Rob Hunter

A Few Thoughts on the Current Constitutional Showdown

It was revealed today that Senate Republicans have enough party discipline to refuse to hold confirmation hearings for any nominee put forward by President Obama to fill the current vacancy on the Supreme Court.

It will be objected that McConnell’s blanket refusal is a challenge to Obama’s constitutional legitimacy and authority – and so it is. Indeed, that is rather the point. The Republicans not only wish to portray Obama as a lame duck; they are asserting that any nominee put forward by Obama will be substantively illegitimate, no matter the fact that Obama is formally authorized by the constitutional text to nominate a justice.

It will be further objected that the Senate Republicans are departing from the forms of accepted practice, or that they are failing to adhere to common conventions – and so they are. The Republicans as a party have perfected this cavalier approach to constitutional forms in the four presidential terms following Bush v. Gore. They will continue to engage in constitutional chicanery in the pursuit of consolidating their ability to obstruct and hinder the president’s political initiative.

Against this, fainéant Democrats may be relied upon to insist on those most flimsy of constitutional values: proceduralism and formalism. They will argue that Obama, as sitting president, has every right and reason to nominate a new justice, and that the Republicans are failing to demonstrate the appropriate level of constitutional probity. They will almost certainly point out that the disciplined refusal of Senate Republicans to meet with any nominee put forward by Obama is a radical departure from accepted practice.

In doing so, they will be stating the obvious. But pious invocation of the (dubious) virtues of The Way Things Were is not a coherent strategy for resisting the attempts of an opposing party to alter constitutional constructions.

Constitutional forms and conventions are forged in the fire of political contestation and confrontation. National-level Democrats have shied away from such confrontation on almost all fronts since the consolidation of the party’s neoliberal turn, and now they have little to offer in opposition to Republican action other than words.

American political institutions are thoroughly undemocratic to begin with, and now Senate Republicans are seeking to deepen and enrich their august body’s tradition of elite-led obstructionism. (I am leaving aside, of course, the fact that obstructing a judicial nominee means obstructing a potential member of yet another undemocratic institution – the Supreme Court.) And yet it seems unlikely to this observer that the Democrats, as a party, will mount a concerted effort to characterize Mitch McConnell and Chuck Grassley as determined foes of the substance of democratic politics – or that Obama will make a direct appeal to the public and dare the Judiciary Committee to snub a nominee, once chosen.

The currently unfolding constitutional crisis is the perfect coda to a presidency in which “bipartisanship” was always the watchword, in stark contradiction to the reality of increasing party discipline and ideological coherence. Well, on the part of the Republicans, anyway.

The Supreme Court After Scalia

I’ve written about the future of the Supreme Court after Scalia over at Jacobin. Here’s a taste:

“We should not chase after the fantasy of exploiting Scalia’s absence to reconstitute a liberal-majority Court — and not merely because any possible Democratic president in 2017 is likely to lack the political support needed for successful judicial appointments.

We should instead explore and promote options that would subordinate the Supreme Court to political control. Now is the right moment to dream of a chastened Court and to envision how that dream may become a reality.”

Free vs. Open Source Software

I wrote about free vs. open source software for Jacobin. Unlike a lot of writing on the subject, I quite deliberately tried to use as few acronyms as possible…

Progress Without Politics

I reviewed Notorious RBG: The Life and Times of Ruth Bader Ginsburg for Jacobin. Here’s a taste:

The Warren Court’s victories in taking on segregation, civil liberties restrictions, and invasive policing tactics prompted a legalistic turn in liberal political strategy. Judicial review — once regarded as a tool of reaction and a barrier to reform — became more attractive as a method for achieving political goals. The Supreme Court’s higher political profile turned judicial appointments into valuable prizes.

Liberal intellectuals abandoned skepticism about judicial review (the Court’s role in tilting labor relations in favor of capital, and in thwarting of New Deal legislation, was no longer dwelt upon) and instead offered full-throated defenses of judicial supremacy: the view that only the Supreme Court can make authoritative interpretations of the values embedded in American public law.

Ever since, this turn toward legalism has furnished the hope that, even if liberals are unable to accomplish their policy goals through collective action, they can achieve them simply by being right. Judicial review by liberal justices is the alchemy through which attitudes and preferences may be transmuted into policy without organization, confrontation, or uncertainty — without politics.

Worse Regimes

Frances Stonor Saunders’s impressive LRB piece on Eric Hobsbawm’s file at MI5 is well-worth reading, but it ends with an odd coda:

The two sides in the Cold War, finding each other irresistible, ended up in a contrapuntal relationship where, as George Urban put it, ‘they marched in negative step, but in step all the same.’ They had their spies, we had ours. They had their files, we had ours. True, we didn’t have gulags. But what kind of democracy is it that congratulates itself on not having gulags? Never mind the dragnet surveillance, the burglaries, the smearing of reputations, the bugging of public telephone boxes, cafés, hotels, banks, trade unions, private homes, all this legitimised by the thesis that everyone is a potential subversive until proven otherwise – the problem is that the defenders of the realm took on the symptoms of the disease they were meant to cure.

Somehow, in other words – and despite adopting similar methods – during the Cold War, the West occupied a morally elevated position. Stonor Saunders hints that this is so because the “disease” – an Eastern Bloc with contrary geopolitical goals – antedated its Western “cure.” But the methods of control, surveillance, and repression listed by Stonor Saunders had all been pioneered in the capitalist world first. She also suggests a certain (dubious) moral superiority in the absence of gulags in postwar Britain. This is consonant with a tenacious conceit in Cold War history: despite mass internment and near-indiscriminate incarceration in the West in the twentieth-century and beyond, only the Soviet Union may be condemned for such practices. (It is also reminiscent of the persistent trope that the development of capitalism, unlike the development of communism, was free of violence, primitive accumulation, and mass dispossession).

Mass internment in the United States during World War II and the use of concentration camps in the decaying British Empire notwithstanding, only the Soviet Union can come in for opprobrium regarding such practices.

Stonor Saunders’ implicit assertion of a qualitative difference between the security services of two Cold War belligerents is only a recent entry in a long catalog of what might be called “worse regimes” claims, after the following passage from Piers Brendon’s The Decline and Fall of the British Empire, 1781-1997:

Throughout their imperial history the British always paid lip service to legality, but by the mid-1950s it was an open secret that Kenya had become a police state that dispensed racist terror … Frequent reports of institutional cruelty reached the outside world, some of them reminiscent of worse regimes. When Kenya’s interrogators ‘screened’ suspects, they generally began by softening them up with ‘a series of hard blows across the face’ – the standard shock tactic used on prisoners in Stalin’s Lubianka. In most cases further beatings followed, some of them fatal. This treatment was variously justified on the grounds that the Mau Mau were subhuman and that it would purge them of political sickness or sin. But those who administered the violence displayed ‘a strong streak of sadism … under the red heat of action.’ This was still more evident in further torments to which ‘screeners’ subjected men and women, mostly Kikuyu. These included electric shocks, burnings, near-drownings, mutilations and sexual abuse. (p. 566)

When “a series of hard blows across the face” were administered by the NKVD, we are meant to see them as prima facie evidence of the horrors of Stalinism. However, when the same tactic was employed by British security forces in Kenya – and it’s hard not to read “they generally began by” as synonymous with “the standard shock tactic” – we are meant to merely regret the fact that, somehow, the face of state power appeared no different in the British Empire than it did in the Soviet Union.

That there should normally have been such a difference is usually taken for granted by writers like Brendon and Stonor Saunders. Strangely, other explanations for the absence of such a difference are rarely considered.