The Republican Senate’s Thousand-Year Reich

The Republican Senate’s Thousand-Year Reich October 30, 2020
But the federal courts have always been the big play for Republicans, and an obvious play when one considers the role of constitutional jurisprudence in mediating political conflict and the fact that federal judges are appointed for life. The 11th-hour confirmation of right-wing Catholic “originalist” Amy Coney Barrett to fill the seat vacated by the passing of liberal icon Ruth Bader Ginsburg represents the crowning achievement of this effort, to install the Republican Party version of Hitler’s Thousand-Year Reich.

Supreme Court Supermajority

On Monday night, in a mask-less ceremony in the White House Rose Garden, Clarence Thomas swore in Amy Coney Barrett to fill Ruth Bader Ginsburg’s vacant seat on the United States Supreme Court. Senate confirmation by a vote of 52-48 has likely locked in a partisan Republican supermajority on the nation’s highest court for at least the next two decades.

It is difficult to count all the ways in which this outcome is not normal. But we live in nothing if not an era of effusive norm-shredding. Here is how Amy Davidson Sorkin of The New Yorker magazine characterized the Republican Senate’s bacchanalian blitz to confirm Barrett, highlighted by the prior Rose Garden COVID superspreader rager celebrating her nomination in early October.

[Republicans] treated the passing of Justice Ruth Bader Ginsburg, just five weeks earlier, as the starting bell in a bitterly exuberant race. She had been dead only a few hours when Mitch McConnell, the Majority Leader, announced that his party would toss aside both decorum and its own rationale for blocking the nomination of Merrick Garland, after Justice Antonin Scalia had died nearly nine months before the 2016 election.

This outcome should obviously outrage Democrats, independents, and any remaining Republicans with a conscience. And we can only hope that grief and anger mounting since Ginsburg died on September 18 will further intensify and drive more voters to the polls to hold accountable the Republican Party. The goal at this point should not merely be to defeat Donald Trump and seize control of the Senate, but to drive the party into the wilderness where it’s base already broods in sullen isolation.

Beyond Outrage

Having conceded the outrage, however, we also need to emphasize that Democratic leaders, ranging from Barack Obama to Nancy Pelosi to Chuck Schumer, have repeatedly underestimated and simply failed to understand the revanchist foundations and impulses of the Republican Party will to power since the 1960s, precisely a century after the Civil War. It is no accident that this revanchism also was a response to efforts to protect and secure the human and civil rights of black Americans.

Subdural animus among white Americans toward the constellation of elements associated with black Americans – cities, the Democratic Party, and the federal government – has since, in a path traced cleanly from Richard Nixon to Ronald Reagan to Newt Gingrich to the Tea Party to Donald Trump – warped the Republican Party into the malevolent, devious machine that we presently all know and hate. The Republican Party is no longer the pliant, pragmatic party of Dwight Eisenhower. Unfortunately, Democrats still behave as if it is.

In the past 50 years, a small cadre of conservative Republican intellectuals, activists, and operatives have worked systematically – and with enormous success – to durably entrench Republican power in state legislatures, Congress, and in the federal courts. Conservatives have exploited asymmetric structural advantages to achieve these outcomes – particularly the enormous bias in the Senate toward small-population, rural, predominantly white states, one that has enormous impacts in the electoral college votes of presidential elections and that also tends to reproduce itself at the state levels to favor smaller-population, predominantly white counties.

But the federal courts have always been the big play for Republicans, and an obvious play when one considers the role of constitutional jurisprudence in mediating political conflict and the fact that federal judges are appointed for life. The 11th-hour confirmation of right-wing Catholic “originalist” Amy Coney Barrett to fill the seat vacated by the passing of liberal icon Ruth Bader Ginsburg represents the crowning achievement of this effort, to install the Republican Party version of Hitler’s Thousand-Year Reich.

A Massive Blind Spot

Like Hitler, Republicans have never been coy about this goal. “It was entirely premeditated,” Mitch McConnell has said, and he is clear that even if he loses his Senate majority, his four years of work on this issue will outweigh his previous 32 years in the Senate.

That the Republican Party has succeeded so easily in seizing almost total control of the federal courts, and accomplished this goal by so casually shredding institutional norms, reflects the massive blind spot at the center of the Democratic Party, a discomfiting failure to appreciate that shared norms or sentiments or civic and national loyalties no longer bind together the two parties. Bipartisanship fully expired with the arrival of the Tea Party in 2010 and any political strategy based on the assumption that it does exist or should exist is doomed to fail.

Occluded awareness and acceptance of this reality is not entirely the fault of the Democrats, whose “Big Tent” assumptions require a generous and open-ended idea of party loyalty, one that seeks out partners, not opponents or enemies. In recent decades, by contrast, the Republicans as have always and inexorably been about accumulating, organizing, and consolidating power, by whatever means necessary, most especially means that involve wedge politics and the creation of enemies. In response, the Democratic Party has been at various times soft, timid, disorganized, confused, smug, and complacent – but never clear-eyed and realistic about the role and significance of the courts in creating the long-term conditions for meaningful political and social change.

Which begs some questions. Why has the Democratic Party been so consistently and reliably obtuse about the obvious strategic and territorial advantages of control of the federal courts? How have the two parties separated so dramatically on this particular political gambit? And now that Republicans have achieved the goal of their Faustian pact with Donald Trump and claimed almost full control of the federal court system, what can the Democrats do about it?

Medievalization of American Politics

The softness of the Democratic Party is of course news to no one. How many times have pundits in recent years bemoaned the Democrats’ instinct to bring a butter knife to a gun fight? But the true and more meaningful failure is that Democrats bring an incoherence of sentimental, ecumenical, and secular ideas and sensibilities to a coarsened and fragmented political environment that more closely expresses the shifting political dynamics and crusading spiritual fervor of the Middle Ages.

It is no accident that 9 of the last 12 Supreme Court appointees – and all 8 of those appointed by Republican presidents – have been Catholic (or in the case of Neil Gorsuch, raised Catholic). This in a country with a cratering Catholic population that comprises about 20 percent of the nation’s population. This religious bias matters enormously, because the sensibility shared by all of these conservative Catholic justices is, in fact, medieval. This sensibility – with its focus on bifurcating populations along sexual, gendered, and racial lines into those which are “ordered” and those which are “disordered” – has intensified in recent decades in direct proportion to the decline of the Catholic Church among ethnic European Catholics.

We can deduce this “Medievalization” of American politics from many angles, including the brutalist, territorial, and tribal focus of the Republican Party’s single-minded drive to parcelize power locally and in state legislatures and to secure it for traditional elites (see the famous statement about building power at the precinct level by Catholic conservative flamethrower Phyllis Schlafly). But deeper evidence of Medievalization also exists in the historic affinity and connection within the Catholic imagination between the City of God and the City of Man, the comfort of Catholics wielding terrestrial power on behalf of the fixed intentions and purposes of a Creator God.

Founding Fathers and Original Intent

A fixed cosmology guides and fortifies conservative Catholic jurists, based to some extent on Biblical precepts but far more fully on the framework provided by Thomist natural law moral philosophy. A synthesis of Aristotelian and Augustinian ethics, organized taxonomically, Catholic natural law establishes an ethics based on God’s purposes for his creation, deducible by reason. Of course, from this framework of original intent of the divine Founder, it was no great leap for judges such as Antonin Scalia to derive originalist and textualist philosophies of constitutional jurisprudence based on the intentions of our nation’s founding fathers.

In assessing the relationship between natural law moral philosophy and originalist jurisprudence, the key point is that once you establish founder intent as the basis for your jurisprudence, you have identified an empty vessel – given the actual textual, contextual, and linguistic limits of what we can truly know about founder intentions, and given the changes in the concrete circumstances of existence in the intervening 230 years – into which judges employing originalist methods can pour their own normative and highly loaded interpretations of natural law ethics. Talk about making law whole-cloth.

And we have many examples of where this approach might lead, with respect to voting rights, health care, reproductive rights, labor unions, taxation, racial justice, and the regulatory state. Consider Poland, for instance, a country with an authoritarian ruling party backed by one of the most conservative Catholic Church hierarchies in the world, where the county’s highest court recently ruled unconstitutional a law allowing abortions for fetuses with congenital birth defects, sending tens of thousands of women into the streets and into churches themselves to protest. In the current legal dispensation, there is no reason to believe the United States would not witness a similar outcome. That outcome has certainly been the goal of the conservative Christian legal organizations that have led this crusade to conquer the courts.

A Cosmology of Their Own

What can the Democrats do? In two words, play hardball. In a widely shared recent Politico article entitled How Democrats Can Learn Hardball From the Republicans of 1861, Joshua Zeitz excavates the political playbook of the Republican Party during and immediately after the Civil War, when northern radicals packed courts, added new states and  refused to seat wayward or illegitimately chosen congressmen in order to create new laws and institutions that could redeem the incalculable destruction and suffering the war against the Southern states and slavery required. According to Zeitz:

Few politicians in American history have understood the uses and ends of power as well as the congressional Republicans of the 1860s. Faced with an existential threat to American democracy, they stared down a violet and revanchist minority and summoned authority earned at the polls to expand the very meaning of citizenship. If next week’s elections go their way, that’s the lesson Democrats should take away.

But if the Democrats do triumph on November 3, they must not remain the echo of the party they have been in recent decades. They must get real about the radically disordered political terrain they occupy and take seriously the asymmetric risks they face, both from a beleaguered white rural minority deranged by the media equivalent of meth amphetamine and from a revanchist court determined to frustrate and hobble the will and the power of the nation’s new emerging majority.

To hold their ground and establish durable legal and institutional foundations for achieving their goals with respect to climate change, economic transformation, democracy reform, and racial justice, the Democrats must claim, for the first time, a cosmology of their own, a systematic understanding of the universe and our place within it, grounded in science, that organizes and empowers its leaders to exercise their powers with righteousness and purpose.

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