Sunday, December 18, 2016

The Election of 2016 and American Identity

[This post was originally published on HNN:]

Not all presidential elections are created equal. Every election is a choice, of course, but the choices are not equally consequential. In some cases, the country seems largely set on what to do, and is debating little more than how to do it (Kennedy-Nixon in 1960). In others, there are more substantial questions of what we as a nation should do (Reagan-Carter in 1980). The most consequential ones, however, come down to the question of who we are as a people, how we define America as a state.

I would argue that 2016 was the last of these.

It was so because Donald Trump made it so.

The 2008 campaign easily could have been one of those, with the Democrats choosing the first African-American major party nominee, with all that choice symbolized about what kind of country this is. While there were certainly moments in the campaign that threatened to veer in that direction, the Republican nominee, Sen. John McCain, stopped his campaign from exploiting that approach.  When a woman at one of his town hall meetings said she thought Obama was “an Arab,” McCain stopped her: “No, ma'am. He's a decent family man [and] citizen that I just happen to have disagreements with on fundamental issues and that's what this campaign's all about. He's not [an Arab].” McCain was given the chance to make it a campaign that said I am one of “us” and he is one of “them,” and he insisted it should instead be a campaign about issues.

Those two words—“No, ma’am”—made clear that McCain was determined not to take the low road. He would talk about what we should do, not who we are. He would say “no” to his supporters when they went down that other road. They are also the words Donald Trump never uttered in his campaign rallies, no matter what vile shouts his deliberate rabble-rousing provoked.

Long before he became a candidate, Trump took the low road by becoming the most famous “birther” in America, again and again claiming that he was finding proof that Barack Obama was not born in the US, asserting that Obama was secretly some non-American “other.” What McCain disavowed, Trump took up—with glee.  McCain thought there were things more important than winning, an attitude Trump clearly views with utter disdain. To Trump, decency is for losers.

Trump’s birtherism was more than just a way to attract attention (though that may have been its chief attraction for him personally). It was in practice an attempt to repudiate the vision of America that Obama’s presidency represented, an America that defines itself by core beliefs that are available to all people, no matter their race, ethnicity, or religion—rather than by an immutable national type of person.

It is no coincidence that Trump then literally began his campaign by demonizing Mexicans as criminals and rapists. His opening salvo against Mexicans set the tone that he never abandoned: these “other” people are different, they are not good, they do not belong here, they are not “us.” His attack on Judge Curiel demonstrated this perfectly. He said the judge could not be fair to him in the Trump University case because “he’s Mexican.” The fact that the judge was born and raised in the United States did not matter to Trump. “He’s Mexican. I’m building a wall.” For Trump, Curiel’s ethnic heritage was who he was. His birthplace, his profession, his devotion to the law and the Constitution were all irrelevant to Trump. The judge’s identity was his ethnicity, and it was Mexican, not American.

He added to the ethnic dimension a religious one by calling for a ban on Muslims coming into the US. He did not call for a ban on extremists or terrorists. He called for a ban on everyone who adhered to a specific religion. He told CNN: “I think Islam hates us.” Not some Muslims, not even some people from some countries that are predominantly Muslim. “Islam hates us,” he said—ignoring the many American Muslims who are “us.” What that lays bare is that for Trump, Muslims are not “us.” They may be here, but they don’t really belong here, because they are not really of “us.”

His positions and policies (and the rhetoric he used to promote them) made it clear that his slogan—“Make America Great Again”—meant that the US should be defined in racial, ethnic, and religious terms: as a predominantly white, Christian country again. His unabashed bigotry throughout his campaign challenged every American to decide: is this who we are? Is America defined by racial, ethnic, and religious traits or is it not?

As I see it, there have long been two competing visions of what the United States is: a country based on an idea or a nation like all the others.

The first argues that the United States is not any particular ethnicity, language, culture, or religion—some of the traits that usually comprise a “nation.” Instead, the United States is fundamentally an idea, one whose basic tenets were argued in the Declaration of Independence and given practical application in the Constitution. At its core, America is the embodiment of the liberalism that emerged from the Enlightenment, which took as a self-evident truth that all people are equal, that all people are fundamentally the same, no matter where they live. They all have basic rights as humans, rights that no government can grant or deny, but only respect or violate. Because this fundamental liberal idea erased the traditional lines that divided people based on race, ethnicity, or religion, it was a “universalist” (or, to use a common term of derision among Trump supporters, “globalist”) concept. It was open to everyone, everywhere. By extension, the American idea (and America itself) was open to everyone, everywhere.

Unlike the situation in other “nations,” since America was an idea, one could become an American by learning about and devoting oneself to that idea. This fact is embodied today in the citizenship test given to those wishing to become Americans: it is a civics test, with questions about American history and government. The final step is taking an oath of allegiance, in which one pledges to support and defend not the “homeland” but the Constitution. The oath is not to territory or blood, but to what we believe and how we do things: to become an American means to believe in certain ideas and commit to living by them.

The other concept of the state is older and more traditional. The United States is a territory, a piece of land. It is also a particular group of people with unique, identifiable national traits that set them apart from others. Trump’s constant refrain about “the wall” perfectly captures this sense of territory in concrete terms. He says that the borders are absolutely essential to defining the nation: “A nation without borders is not a nation at all.” After the Orlando shooting, Trump tied the idea of the nation explicitly to immigration. Eliding the fact that the killer himself was born in the US, he noted that his parents were immigrants and said: “If we don't get tough and if we don't get smart, and fast, we're not going to have our country anymore. There will be nothing, absolutely nothing left.” Immigrants, he suggested, will destroy the country.

This is why the border must be, in his words, “strong” or “secure.” Keeping “our” country means keeping the wrong people out. Otherwise there will be “people who don’t belong here.” While in theory this could be merely about a given immigrant’s legal status, Trump’s rhetoric and proposals give the lie to that—the Orlando killer’s parents were not “illegal” after all, but they were Afghans and Muslims. The wall won’t be on the border with Canada, either. He singles out Mexicans and Muslims, which has the effect of defining who exactly the people who do “belong here” are—those who are white and Christian. Trump’s nonsensical promise that “we are going to start saying ‘Merry Christmas’ again” signals that he will make America Christian again. He told Tony Perkins: “I see more and more, especially, in particular, Christianity, Christians, their power is being taken away.” The passive voice masks who precisely is doing the taking away, but it is not hard to imagine who he means: it must be non-Christians, maybe secularists, maybe Muslims. Either way, “them,” and not “us.” (It is also noteworthy that he says Christians had “power”—which suggests a previous supremacy that’s been lost.)

By striking these themes, Trump has appealed to this traditional, more tribal concept of what America is, or should be: not an idea based on universal principles, but a state rooted in a particular place and with a specific, dominant identity comprised of racial, ethnic, and religious traits that should never change.

The irony is that in doing so, Trump is effectively saying the United States is not really distinctive, at least not in the way it usually thinks of itself. It is a nation like all other nations. Trump has, in fact, explicitly rejected American exceptionalism: “I don't think it's a very nice term. We're exceptional; you're not…. I don't want to say, ‘We're exceptional. We're more exceptional.’ Because essentially we're saying we're more outstanding than you.” While he couched this is business terms, claiming that since the US was being bested in trade it could not claim to be better, he was openly and consciously rejecting a basic tenet of Republican orthodoxy since at least Ronald Reagan. Coming from the standard bearer of the 2016 Republican Party, which has beat the “American exceptionalism” drum relentlessly (especially in the Obama years), that is rather stunning—but it also makes sense from another perspective.

Jelani Cobb wrote recently in the New Yorker that Trump’s political rise represents the “death of American exceptionalism.” He states: “The United States’ claim to moral primacy in the world, the idea of American exceptionalism, rests upon the argument that this is a nation set apart.” By emulating the “anti-immigrant, authoritarian, and nationalist movements we’ve witnessed in Germany, the U.K., Turkey, and France,” Cobb argues, Trump forfeits that American “claim to moral superiority.”

I agree with Cobb, but I think it goes even deeper than he suggests: it is a rejection of the idea-based definition of what America is and a reversion to an older, European one. American exceptionalism not only encompassed a moral claim, not only set the United States apart from other nations. It even—or maybe especially—set the US apart from those places from which most of its founding generation fled: the states of Europe. Here in America, the thinking went, the people will create something new and different, based on first principles and following the dictates of reason, unrestrained by tradition, culture, religion—by anything but the best ideas. In Thomas Paine’s famous words, “we have it in our power to begin the world over again.” The United States would show the world what could be accomplished when free people creating a new state had the chance to write on John Locke’s tabula rosa. (It should go without saying that this was never literally true, but rather an ideal to which people aspired.)

In doing so, Americans were effectively saying: “We are not our European ancestors. We are different. They are tribal, we are not.” For most of the 19th century and well into the 20th, American isolationism was based on the foundational idea that the US, despite its ancestry, was decidedly not European. It would not be ruled by Europe and it would not be drawn into Europe’s tribal squabbles. The US was different—and better. It may have been borne of Europe, but it would supersede it and show it a better way.

More often than not in recent decades, it has been American conservatives who have shown disdain for Europe, sneering at the idea that the US should look to Europe for ideas or leadership of any kind: in law, in public policy, in diplomacy. But scratch the surface and what we see is not contempt for Europe per se but for liberalism as it has developed in Europe since the end of World War II. As right-wing, anti-liberal movements have grown in Europe, so has American conservatism’s appreciation for what Europe has to teach Americans.

As Cobb points out, what is striking about Trump is how much his program resembles that of right-wing extremists in European states who reject that better way America sought to offer in favor of the old European way. Trump’s program is not uniquely American. Arguably, it is following an ancient pattern set in Europe that is rearing its ugly head again in the 21st century. (Trump himself said his election would be “Brexit times 10”—bigger, but not original.) Trump is following more than he is leading, copying a formula that has had some success elsewhere, one that is far from uniquely American. It is, if anything, uniquely European—in the worst sense.

Recently the New York Times had an article on how the far-right European movements have adopted Vladimir Putin as their hero, for his defense of “traditional values.” It quotes an American white Christian nationalist praising Putin: “I see President Putin as the leader of the free world.” (His definition of “free” must be markedly different from the one that has dominated in American political culture, but the framing is telling. Theirs is not the freedom of the Enlightenment, but rather freedom from the threat of the non-western or non-traditional “other.”)

Most American pundits, still caught in a cold-war paradigm, marveled at Trump’s embrace of Putin, and could not understand how it failed to discredit him as it seemingly should have (even this past weekend’s stories on the CIA’s conclusion that Russia sought to help Trump in the election has yet to leave a mark on him). Those critics failed to see that a new paradigm has completely eclipsed that of the cold war. They missed the fact that, despite his KGB pedigree, Putin has transformed himself into “a symbol of strength, racial purity and traditional Christian values in a world under threat from Islam, immigrants and rootless cosmopolitan elites.” In the new paradigm, these are the new enemies, the real enemies of the 21st century. Communists have been vanquished. Islamists, immigrants, globalists, “others” of all kinds, have taken their place. The cold war was a battle of ideologies; this is a battle of identities.

If this take is correct, the combination of Trump’s willingness to jettison American exceptionalism and his embrace of Putinism as “real” leadership portends a significant transformation of what it means to be an American. Rather than a country built on ideas and principles, which defines itself by its devotion to those principles, Trump’s America is simply one (albeit the most powerful) of the many western tribes beating back the “uncivilized” hordes that threaten to undermine the white, Christian traditional identity of the west. In such a world, embracing Putin as a partner makes sense—even if he does have journalists and other political enemies murdered or imprisoned. Embracing anti-liberal autocrats and dictators in order to destroy ISIS becomes not a necessary evil, but a positive good, a desirable state of affairs, a restoration of an ancient European unity against the infidel.

Implicit in this view is a rejection of Enlightenment liberalism. Once you jettison the commitment to an idea and embrace a politics based on racial, ethnic, and religious identity, showing a reckless disregard for democratic norms and processes (as Trump reflexively does) is natural, since those things have no inherent value. How we do things does not matter—all that matters is who we are and what we must do to protect that essential identity. Since American identity is not defined by principles of any kind, it is not important to have principles of any kind. The only standard by which to judge right and wrong is success in defending the homeland from the “other.” So Trump can blithely pledge to restore “waterboarding and a hell of a lot worse than waterboarding” with no qualms whatsoever. After all, he asserts, “torture works.”

Trump has made clear repeatedly that that is his only standard: what works. When asked by the Wall Street Journal after the election whether he had gone too far with his rhetoric during the campaign, he said flatly: “No. I won.” His worldview is entirely instrumental: what works is right, what fails is wrong. Nothing could be more fundamentally opposed to a commitment to liberal process, which values process as a good in itself, as the glue that holds together people with different views and beliefs.

When Marxists, following the logic of economic determinism, claimed that class created identity, fascists countered with racial determinism: the blood determined identity. What has always set liberalism apart from these extremist ideologies is the belief that people create their own identities. As rational beings, we can create who we are by deciding what we believe. We are not merely the products of race, or ethnicity, or class. We are who we choose to be.

What made this election so consequential is that it posed the question of who Americans are as a people as clearly as it has been since 1860. Hillary Clinton’s campaign recognized this with its slogan: “Stronger Together.” Trump’s strategy was to encourage white Christian nationalism, and Clinton’s was to say we cannot go back to some tribal concept of American identity. What has disturbed so many of us about Trump’s elevation to the presidency is not simply that our candidate didn’t win. It is that the choice that 46.2% of the voters made is so antithetical to our vision of what America can and should be. It threatens a reversion to a more primitive tribalism that has proved so horrifically destructive in the past. We know the history. We know the danger. That is why this was no normal election and this will be no normal presidency. This country is about to be tested as it has not been since the 1860s, and the outcome is not at all clear.

Wednesday, March 30, 2016

Orrin Hatch's Embarrassing New York Times Op-ed

This piece was originally published on History News Network

Senator Orrin Hatch took to the New York Times op-ed page to try to make the case for the Senate refusing to take up President Obama’s Supreme Court nominee.

It didn’t go well.

He starts by praising the late Antonin Scalia, implying that the rules should be different when replacing one of the “greatest jurists in our nation’s history.” The obvious reply is that it does not matter who the president is replacing. All openings on the Court are created equal.

Hatch then asserts that Obama has “contempt” for Scalia’s judicial philosophy. That may or may not be true, but in any case, it is irrelevant. When the electorate once again decisively elected Obama as president in 2012, it did not include an asterisk that said he could only replace justices with whom he agreed.

His next point is that when a senator, Obama opposed two of President Bush’s nominees. Again, this is irrelevant. No one is claiming that Hatch or any other Republican has to support Obama’s nominee—just that Judge Garland deserves a hearing and a vote. Republicans now are as free as Obama was then to oppose the confirmation of the nominee.

Hatch then moves on to even more absurdly irrelevant points, such as his assertion that Obama has “consistently exceeded the scope of his legitimate constitutional authority.” Putting aside how questionable that point is, what Hatch seems to be suggesting is that if senators think such a thing about a president, the president loses the right to exercise legitimate constitutional powers. The Constitution provides Congress with a remedy for a president who exceeds the scope of legitimate constitutional authority: impeachment. The simple fact that a Republican House has not taken up impeachment reveals Hatch’s point for the nonsense it is.

He then notes that the American people have chosen a Democratic president and Republican Senate. Fair enough. But that in no way leads to Hatch’s conclusion that the Senate can therefore ignore the nomination. What that “split decision” suggests is that the Democratic president should nominate a person who is not his political ideal, but a compromise candidate more acceptable to that Republican Senate. By choosing Merrick Garland, that is precisely what Obama has done. He is respecting the idea of checks and balances, both institutionally and politically. He did not chose someone who was a darling of the Democratic left, but someone who has (in the past) been repeatedly praised by Republicans, including Hatch himself. By refusing to even consider the nominee of the elected president, it is Hatch and the Senate Republicans who are not respecting the “split decision” of the American people, not the president. They are saying that the smaller subset of the American public that elected those Senate Republicans can simply ignore the decision of the entire national electorate in the last presidential election.

For an historian, perhaps the most offensive point Hatch makes is this: “Throughout its history, the Senate has never confirmed a nominee to fill a Supreme Court vacancy that occurred this late in a term-limited president’s time in office.” As a history teacher, I am used to the instinct unprepared undergraduates have to bolster a poor argument with the “throughout history” trick. I expect better of United States Senators.

Hatch shows his contempt for his readers with this tortured construction. To make his “throughout its history” line work, Hatch needs to make that history awfully short. He does that with the phrase “term-limited.” The 22nd Amendment, which imposes term limits on presidents, has only been in effect for 65 years. So this particular “throughout its history” means for 65 years—less than Hatch’s own life span.

As I pointed out in my previous piece on this subject, there has only been one other vacancy during that period that was “this late” in a president’s term: LBJ’s nomination of Abe Fortas in 1968. Yes, Fortas was not confirmed as Chief Justice. That nomination received a hearing, however, and a vote. It was not met with this disingenuous nonsense that “we never do this.” And as Hatch well knows, 1968 was one of the most contentious elections years in American history. Somehow, the Senate still did its job.

That leads to the next part of Hatch’s “kitchen sink” piece. He blames the “toxic presidential election” for Republican irresponsibility on this nomination. Anyone paying any attention knows that the current toxicity is almost entirely on his party’s side. Hillary Clinton and Bernie Sanders have mostly conducted their primary contest on a high, substantive level. Hatch calls this the “nastiest election year in recent memory.” He neglects to mention that the nastiness is almost entirely on the Republican side. By some inexplicable logic, the fact that the Republican Party is wallowing in the political gutter means that the Democratic president’s nominee for the Supreme Court should not be treated like any other nominee.

Lastly, Hatch notes: “I have witnessed firsthand the deterioration of the confirmation process. Neither party has clean hands on this front.” That is true. It is also true that what Hatch proposes as the responsible course of action is in fact an extraordinary escalation of the politicization of the nomination process far beyond what either party has done in the past. It shows contempt for the 2012 electorate that elected Barack Obama. It shows contempt for the president personally. It shows contempt for American history.

Nothing in Hatch’s piece changes any of that.

If Hatch and his fellow Republicans want to vote against Judge Garland, they have every right to do so. But they should stop being cowards. They should make a substantive argument against him, vote against him, and accept the political consequences of that vote. They should stop pretending that this reckless path they have chosen is anything but a desperate attempt to hold onto a Supreme Court majority.

Sunday, March 6, 2016

BBC 5 Radio Interview on Ted Cruz and his Phony Supreme Court "Tradition"

On February 25, BBC 5 Radio program "Up All Night" with Rhod Sharp interviewed me about the Supreme Court vacancy and the post I wrote about Ted Cruz. The audio file is below.

Tuesday, February 16, 2016

Ted Cruz's Phony Supreme Court "Tradition"

[This post originally appeared on History News Network]

“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don't do this in an election year."—Senator Ted Cruz 
If he honestly believes it is not legitimate to nominate and confirm a justice in an election year, Ted Cruz must hate the appointment of Chief Justice John Marshall. John Adams nominated him in January 1801, after he lost his re-election bid to Thomas Jefferson in the election of 1800. Adams was a lame duck in the truest sense of the term—he was serving out the remainder of his term after being repudiated by the voters. Yet he did not hesitate to fill the vacancy in the Supreme Court, and Marshall was confirmed by a lame duck Senate.

Perhaps the most striking irony of Cruz’s position (and increasingly the position of the entire Republican Party) is that this absurd debate is taking place over the replacement of Antonin Scalia. If there is one thing Scalia was known for, it is his originalist interpretation of the Constitution: it means what the founding generation said it meant. So is seems appropriate to ask: what did the Founders actually do in such circumstances?

In the final year of his presidency, George Washington had two nominations to the Supreme Court approved by the Senate. It was an election year and he was not running for reelection. It doesn’t get more "original intent" than that. Adams could easily have left the Supreme Court vacancy for Jefferson—who had already been elected, after all, and would take office in a matter of weeks—and didn’t. That seems as clear as it could be. The founders saw no impediment to a president in the final year--or even in the final weeks--of the presidency successfully appointing new justices to the Supreme Court.

What about Cruz's contention about the last 80 years? Even that does not hold up.

The facts are pretty simple. In the last 80 years there has only been one instance in which a president was in a position to nominate a justice in an election year and did not have the nominee confirmed. In 1968, LBJ’s nomination of Abe Fortas to be Chief Justice to succeed Earl Warren (and of Homer Thornberry to take the seat held by Fortas) was blocked in the Senate, but not because of some alleged “tradition.” Certainly there were Senators who wanted the next president to name a new justice. But the opposition to Fortas had everything to do with the specific nominee and specific objections to him (particularly charges of cronyism and inappropriate financial dealings). To the best of my knowledge, no one cited Cruz’s “tradition” to say it was not appropriate for Johnson to nominate someone, or that it would have been inappropriate to confirm anyone.

A second instance took place 28 years earlier. In 1940, FDR nominated Frank Murphy in January of that election year and he was confirmed that same month. There was no “tradition” blocking that election-year appointment. (This also shows that Cruz got the math wrong—this happened 76 years ago, not 80.) [Note: The morning after this post first appeared, Orrin Hatch spoke on NPR and amended the claim to no "term-limited" president had had a nominee confirmed in an election year--evidently an attempt to exempt FDR's confirmed nominee from the "tradition."]

So, there were two instances similar to the current situation in the last 80 years. In one case the nomination was rejected and in the other it wasn’t. To Ted Cruz, this constitutes “a long tradition that you don't do this.”

Ted Cruz’s invention of this alleged "tradition" that we don’t nominate and confirm Supreme Court justices in an election year would be laughable if so many supposedly responsible political leaders were not taking it seriously.

It is absurd on the face of it. If the Republicans in the Senate want to block any nominee Barack Obama sends them, they have the votes to do it. But they should stop hiding behind the obvious fiction that doing so is part of some “tradition.” It would be nothing but the raw, cynical use of their political power. This suggestion that Obama should not even nominate someone (both John Kasich and Marco Rubio said so in Saturday’s debate), or if he does, that the nominee should be rejected out of hand simply because of the timing (as the Senate Majority Leader and many Republican Senators are now saying), is simply silly. 

True conservatives don’t invent traditions. They work to protect existing ones. Our true tradition is that the president nominates and the Senate votes, regardless of when the vacancy occurs. 

The speed with which Cruz jumped to make this claim and with which so many others have fallen in line, speaks to the nihilistic radicalism that has infected today's Republican Party. Any position can be taken if it produces the correct result. Facts can be denied, “traditions” can be invented. The only value taken seriously is “does it work to our advantage?”

This tactic may well work politically. It has already had the effect of framing the debate as “Should Obama nominate someone?” That is truly extraordinary. The actual question should be “Should the Senate confirm Obama’s nominee?” That’s a legitimate debate, but it would put the focus on the nominee and that person’s qualifications. By hiding behind this phony “tradition,” Republicans are trying to avoid having to show that a given nominee should be rejected on the merits. In short, they don’t want to take responsibility for rejecting someone who—in all likelihood—will be eminently qualified for the job. That’s not statesmanship. It’s cowardice.