Scalia Really IS a Political Hack!

Six weeks ago, I wrote a piece on the overtly political (rather than constitutional) nature of Justice Antonin Scalia's questioning in oral arguments on the Arizona immigration law. Today, the Supreme Court handed down its decision, upholding the "papers, please" part of the law but striking down other parts involving state enforcement of federal law.

Scalia, to no one's surprise, dissented on the decision to strike down parts of the Arizona law. But he also went out of his way--this time in a written dissent-- to expose his political views. Referring to President Obama's recent decision to refrain from deporting certain young people brought into the country by their parents, Scalia introduced a completely irrelevant political observation: “The President said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration's proposed revision of the Immigration Act.7,” Scalia wrote. “Perhaps it is, though Arizona may not think so.”

The whole point is that it is not Arizona's place to decide on immigration. It is a federal responsibility. Scalia, who seems to be arguing that the states are sovereign entities and can police their own borders, rejects that constitutional principle. That strikes me as a bizarre view, but he is entitled to it.

In his opinion, however, he goes beyond that. Recall that the president's recent decision was not a subject of the case before the Court. To introduce it at all is entirely inappropriate. But even more inappropriate is what Scalia says about it. He questions the sincerity of the administration's explanation of its policy: “The husbanding of scarce enforcement resources can hardly be the justification for this,” he writes. Again, this is beside the point. Whether or not Scalia believes the administration's explanation for the policy is utterly irrelevant to the constitutionality of the Arizona law.

If Scalia would like to resign from the Court and run for office, he can question the motives of the administration all he likes. But to put such blatantly partisan arguments in a dissent shows how irredeemably political he is. He disapproves of the Obama administration's policies, so he wants Arizona to be able to act contrary to those policies.

We have reached a truly absurd point in the relationship between the Court and politics. The Republican Party, which has railed for decades against "activist judges" who "legislate from the bench" has no better representative of its political id than Antonin Scalia, a doctrinaire ideologue who routinely injects his personal political views into his decisions. He brazenly spouts partisan political arguments from the bench, all the while making the ridiculous claim that he is dedicated to the "original intent" of the Framers of the Constitution. But his words betray him. If you want to know what Scalia thinks, you would do better to watch Fox News than read the Constitution.

Fear Can Be Productive, Fearlessness Destructive

There is something different happening in this economic downturn. It's not just the fact that the recovery has been stubbornly slow, but the political response to it. For the first time in modern American history, conservatives have no fear of the social consequences of economic distress.

This is an unprecedented situation, and a dangerous one. It has turned one of the two political parties into an uncompromising, extremist faction blinded by ideology.

In his column in the New York Times last Friday, David Brooks argues that Republicans today are not extreme, they just have a different viewpoint: "many Republicans have now come to the conclusion that the welfare-state model is in its death throes." Democrats, on the other hand, fail to see the writing on the wall and are simply re-arranging the deck chairs on the old Titanic.

The behavior of today's Republican Party is a problem for those like Brooks who see themselves as responsible conservatives. No reasonable person wants to defend the people who still question where the president was born, or the people in Michigan who put a sign saying "Obama Presidential Library" on a bullet-hole pocked outhouse last week, or even legislators who are willing to take the government to the brink of default.

So Brooks ignores that kind of embarrassing extremism and focuses instead on this big-picture "viewpoint" that he clearly views as much more intellectually respectable. The problem is this: the very viewpoint he identifies is also an extremist one.

Brooks implicitly suggests that the perception of extremism is due to the extremity of the situation: we are at a turning point in world history: the "welfare-state model" is dying. I would respond that we are now seeing the domestic economic and political consequences of a real turning point in world history that came over twenty years ago: the death of communism.

The limited welfare state in this country came into being as a response to two great crises of American capitalism--the depression of the 1890s and the Great Depression of the 1930s. What we call the "welfare state" was initially the product of two large movements that followed those economic calamities: the Progressivism of the early 20th century and the New Deal.

In both cases, intelligent American political leaders had one central insight: the only way to preserve American capitalism from the threat of revolution was to reform it, to moderate it, to curb its worst excesses. As Theodore Roosevelt put it in 1912:

There is urgent necessity of applying both common sense and the highest ethical standard to this movement for better economic conditions among the mass of our people if we are to make it one of healthy evolution and not one of revolution.

Without reform, revolution was inevitable. The true conservative, TR knew, was a reformer.

The reformers of both eras knew there was something worse out there as a possibility: the specter of communism. That radical ideology gave disgruntled workers an alternative that promised a more just and equitable society. The wisest of the capitalists understood the threat this ideology represented, and more importantly, they knew that the only way to preserve capitalism was to reform and limit it. On some level, they were scared--but this was the good kind of scared, the kind that sees a real threat and responds to it rationally and reasonably, producing something better.

The result was a regulatory system that began modestly under TR with legislation like the Pure Food and Drug Act and the Hepburn Act (which empowered the Interstate Commerce Commission so that it could effectively regulate the railroad industry). Under FDR, the result was Social Security and unemployment insurance, both of which were designed (at least in part) to prevent future economic downturns from spiraling out of control. The New Deal also saw the creation of the SEC to regulate Wall Street and the Glass-Steagall Act to regulate the banks.

The result of all of this reform was the emergence of the United States as the great economic powerhouse of the mid-to-late 20th century.

What is different in this latest crisis of capitalism is that capitalists today are not scared of the "mass of our people." Ever since the collapse of the Soviet empire and communism 20 years ago, American conservatives have had no fear of social unrest, at home or abroad. They believe that there is no alternative for frustrated workers, so these reforms of the 20th century are no longer needed. They can turn back the clock on reforms they never really liked, ones they'd only grudgingly accepted as necessary to preserve social peace.

With nothing to fear, they have spent the last 20 years trying to undermine the regulatory state and the limited welfare state. They've deregulated the financial industries, repealed Glass-Steagal. They've repeatedly cut taxes to "starve the beast." They've encouraged the growing income disparity that has left the middle and lower classes stagnant or declining while the wealthiest accumulate ever-greater shares of the national wealth.

And when as a result it all came crashing down in 2008, they blamed not the tax cuts, not the increasing concentration of wealth at the very top, not the deregulation, not the banks, not the markets. Instead, they blamed the unions, people on unemployment, recipients of public assistance, government workers. The people they no longer feared, the people they've long seen as impediments to even greater profits and concentrations of wealth.

The Republican Party has, for the last three years, acted like people who think they hold all the cards. They don't need to compromise. The worse the economy gets, the better it is for them politically, the easier it becomes to scapegoat the government and administer the final death blows to the welfare state. They are not afraid.

Unlike smart conservatives in earlier ages, today's conservatives see no reason to curb the excesses of capitalism. Far from it. They rail against "Obamacare" despite the fact that it retains (and arguably subsidizes) the private insurance system and is dominated by conservative ideas of health insurance reform. They whine that the modest financial industry reforms of the Dodd-Frank Act mark the end of freedom.

More cruelly, rather than trying to take the edge off in tough times, they seem intent on sharpening the pain inflicted by the failings of the economic system.

Feeling no fear, seeing no need to reform, they are pressing what they see as their advantages--not only do they refuse to raise taxes on the wealthiest Americans, they are pushing for further cuts in tax rates that are already unusually low. Rather than bolster the protections against the vicissitudes of the economic system (like unemployment insurance and food stamps), they seek to diminish or remove them. Rather than make concessions to unions to help workers, they try to destroy them.

The argument (such as it is) that Brooks makes is that we cannot afford the "welfare-state model" anymore. In this perverse vision, government is so big that it has strangled capitalism (fact--there are 500,000 fewer federal government employees today than there were in 1980, though there are 82 million more Americans). Now the welfare state is too expensive, we can't afford it, it has outlived its usefulness, so now it has to go.

But the historical reality is different. Yes, undeniably, the modern welfare state would be impossible without the wealth creation of capitalism. But it was also the emergence of the regulatory state and the welfare state that made possible the continued growth of capitalism after its near self-destruction in the depressions of the 1890s and the 1930s.

Without adequate regulation, without government policies to moderate its impact, free market capitalism produces socially destabilizing and destructive swings of boom and bust.

Smart conservatives in America's past knew that. Today, a precious few like David Frum occasionally try to pull conservatism back in that direction (e.g., reminding them that opposition to "Obamacare" is not enough, they need an alternative that addresses the problem of the uninsured).

But mostly, people like David Brooks, people who should know better, enable modern conservatism's short-sightedness by elevating it to a respectable "viewpoint" and ignoring its extremism.

It is extreme. It is short-sighted. It is stupid. And worst of all, it is self-destructive.

It used to be that conservatives were wise enough to fear extremism. Today, they embrace it.

Ike & Joe & Mitt & Donald

Nearly 60 years ago, during the 1952 presidential campaign, Dwight D. Eisenhower had to work hard to unite a potentially fractious Republican Party. In the nomination fight, he had vanquished Sen. Robert Taft, whom Ike considered dangerously isolationist in his foreign policy. Eisenhower also had to contend with the anti-communist demagoguery of Joe McCarthy.

Two years earlier, McCarthy had quickly made a name for himself by claiming to have a list (which he never, of course, produced) of known Communist Party members who were employed by the State Department. While he never uncovered a single actual Communist, McCarthy's bluster kept his name in the papers.

Privately, Ike expressed his contempt for McCarthy."I will not get into the gutter with this guy," he told aides who encouraged him to publicly denounce the Wisconsin senator.

But late in the campaign, in October 1952, Eisenhower faced a decision. McCarthy had slandered George C. Marshall, the United States Army Chief of Staff during World War II and Secretary of State and then Secretary of Defense under President Truman. McCarthy called Marshall "a man steeped in falsehood," and suggested that he had deliberately sabotaged American policy in China: "If Marshall were merely stupid, the laws of probability would dictate that part of his decisions would serve this country's interest."

As Truman later pointed out, Marshall was "the man who had done more for Eisenhower than anyone else on earth.... Every major promotion that Eisenhower got, every major assignment, came about because George Marshall recommended it or ordered it."

Eisenhower and McCarthy, Oct. 1952.
Photo by Robert Boyd, Milwaukee Journal Sentinel
Credit: Wisconsin Historical Society

So what would Ike do: defend his mentor Marshall or appease the demagogue McCarthy? His first instinct was to do the former. He was headed for McCarthy's home state, and his speech writers prepared a draft praising Marshall. His aides leaked word of that to the press. McCarthy heard and managed to board Ike's campaign train on its way to Milwaukee, and argued that Ike should omit those statements. Though he reportedly reacted with "red-hot anger" to McCarthy, Ike caved. He appeared on the same platform with McCarthy, removed the praise of Marshall from his speech, and echoed some of McCarthy's anti-communist rhetoric.

Truman was appalled. He thought Marshall "one of the most decent and honorable men this country has ever produced." He wrote privately that the incident showed Ike was "chickenhearted" and a "weak man cowering at a mental image of McCarthy's pugnacious face and rasping voice."

The recent spectacle of Mitt Romney attending a fund-raiser with Donald Trump brought this old story to mind, because it raises the same questions of character in politics. Trump, of course, has made himself notorious as the most prominent proponent of the discredited idea that President Obama was not born in Hawaii. Romney has received a fair amount of heat for his embrace of Trump. When asked about it, he replied:

"You know I don’t agree with all the people who support me and my guess is they don’t all agree with everything I believe in." This is no doubt true. It is also irrelevant. No reasonable person believes that candidates for office are personally responsible for all of the views of all of their supporters.

Romney and Trump, Feb. 2012.
Steve Marcus / Reuters

But that was not the issue. This was no run-of-the-mill supporter. This was someone famous, whose recent notoriety is due to spouting a demonstrably false conspiracy theory about Romney's opponent.

This is someone with whom Romney chose to do a fund-raiser. It is entirely fair to assume that choosing to share a stage with someone implies there are no important disagreements with that individual.

The question to Romney really should have been: "Is there anything Donald Trump could say that would lead you to forego doing a fund-raiser with him?"

Presumably the answer is "yes," which then leads to the follow-up: why doesn't Trump's birther nonsense meet that standard? After all, what Trump is suggesting is that the President of the United States is illegitimate and a fraud. Romney knows this, but it changes nothing about his relationship with Trump. Why does Romney choose to associate with someone who stoops to such baseless demagoguery?

Fortunately, Romney answered that question without it being asked: "I need to get 50.1 percent or more." In other words, his answer is no different that the one Eisenhower would given: it was politics.

Romney's shape-shifting from moderate to "severely conservative" means that the conservative Republican base does not trust him. Many of those same people consistently express doubt that the president was born in the U.S.A. So Romney indirectly panders to them by embracing their spokesman, even as he tries to maintain credibility with sane voters by accepting the facts about Obama's birthplace.

Eisenhower had a similar problem. As a career military man, no one even knew which political party he belonged to until shortly before the 1952 campaign. He defeated "Mr. Republican" (Robert Taft) for the nomination, but still had to prove himself to the far right McCarthyites. He tried to do that by choosing Sen. Richard Nixon as his running mate (Nixon, due to his role in the Alger Hiss case, was seen as the smart man's McCarthy).

But it was not enough. It never is for the politically rabid. McCarthy bullied Ike into forsaking the man most responsible for the fact that Eisenhower was ever considered a potential president. For Eisenhower, it worked politically. He cruised to victory in 1952. But it sullied his reputation as a man of personal loyalty and honor.

It may work politically for Romney, too. His willingness to get down in the gutter with Trump, his refusal to scorn the chief proponent of birtherism, however, makes it hard to see Romney as a man of character. And so his problem becomes circular--because there is no "there" there, he constantly needs to pander to the base; the more he panders to the base, the more he proves that there really is no "there" there.