Point Lobos, 1969

And if you had
What you thought you had
When the trees
Turned with you
And the times
Out of all time
Came
And you could see what they said
What they all of them said
Was true

No measuring here
No defense necessary
Sing with me now
No iron intrude between us

Break your vow here
And no fire burns
The way we burn already
The living and the dead
Together
Cold fire
Even when
the lot of us
are ash

I will tell you
Did you think that I’d
Forbear to tell you
How we are?
How
Broken by the knowledge
Broken
All the pieces find
Their voices here
Speak here
Thigh-deep in lupine
Dead-white
Cypress arms and fingers
Over us
And our eyes on the gull

21st Century Institutions: the U.S. Presidency

Donald Trump is not the first U.S. President to be elected in the 21st Century, and the odds are he’s not going to be be the last.* He does seem likely, however, to go down in history as the century’s most characteristic one, at least as things look now, twenty years into the accursed opening maneuvers of its history-making engines.

President Trump himself is undeniably one of those engines, a steam-powered anomaly in an era increasingly lit up at night by the output from solar panels, wind turbines, and lithium ion batteries. It would probably be easier, and it would certainly be more pleasant, to write about the American Presidency without mentioning the Donald, but since he does seem to represent some sort of numinous final stage in the rot that’s been eating away at the office since 1945, there’s no credible way to avoid dealing with him in all his radiantly decadent glory.

Back in 2011, in snarking at the dozen or so GOP presidential candidates of the time, I called Newt Gingrich the Dorian Gray of the Republican Party. By the middle of 2016, as candidate Trump’s arsenal of creepy facial expressions began its final assault on our international media landscape, I realized that Newt had been a mere pretender. Not even Oscar Wilde himself could have imagined the world we were now living in, a world in which the real-life equivalent of his fictional character actually preferred having the evolving portrait of his depravity visible to everyone and his dog.

When January, 20, 2017 finally did arrive, it was even weirder than usual for a Presidential Inauguration Day. Most of the political class and its media pilot fish were still hung over from the excesses of the election in November. To their momentarily everlasting astonishment, it seemed, Trump had actually managed somehow to get himself elected President, and was standing there now, live in front of the assembled cameras, taking the oath of office. Oh. My. God. The nuclear football in the possession of a sociopathic, blowhard hotel developer! Sackcloth and ashes! Baskets of deplorables! Facebook and Russians! Blah, blah, blah.

Trump himself was soon to be busy elsewhere in Washington. Once he’d gotten the rug swapped out in the Oval Office, had more Trump-suitable golden drapes hung above its windows, and settled his very stable genius behind the Resolute desk, he got down at last to the real work: redecorating the American political landscape with a stunning array of bagmen, bootlickers, generals and ex-generals, racist Dixie irredentists, religious fanatics, voodoo economists, firearms fetishists, Fox News ressentimentistes, rust belt coal rollers, libertarians looking for a hill to die on, and his own children. In 2020, I continue to wonder: is there really anyone left in the United States who still believes that this was all some sort of diabolical accident?

No, there isn’t. And no, it definitely wasn’t. Most of the electorate understands very well that this train wreck of an election was no accident, whether they voted for Donald Trump or not. And yet, amazing as it is to contemplate, our luck has held once again. Despite the best efforts of Trump and his merry band of magatrumpistas, the United States seems unlikely to become a failed state during his reign, no matter how diligent its political class is at helping him carve one out of the complex patrimony of the U.S. Constitution.

If we can somehow manage to ignore all the present din and idiocy, what is undeniable about the history which has led us to Trump in the White House is that already by the latter half of the 1970s, the international economic order set up by the western allies following the defeat of Nazi Germany and Imperial Japan was becoming alarmingly unstable. Contrary to the arrogant predictions of our so-called foreign policy experts, the economic restoration of our defeated enemies had not, in fact, bound them in perpetuity to political alliances dominated by the United States. China was not, in fact, going to be permanently denied the economic and political deference due it as a society which embraced more than 18% of the world’s population. Even the lesser nations of the world would not, in fact, continue to fear being denied a place at the trough of American largesse, especially as there came to be less and less in it for them.

The election of Donald Trump is far more, I think, than a macabre trick that the rubes in the MAGA hats have played on themselves. It’s also the clearest demonstration we’re ever likely to get that prominent members of the American political class are not as savvy as they make themselves out to be. Simply put, they’ve failed to prepare the American people for the historical metamorphosis which has brought the postwar Pax Americana to an end. Even more simply put, bearing humiliating witness to a Trump in the White House is the price they’re paying for that failure. Whether they realize it or not, the longer they keep propping up the status quo, the higher that price will be. After four years of the Trump administration, let alone eight years, I’m pretty sure the vig alone will wind up bankrupting them.

While it may be true that even in the hands of a Donald Trump the U.S. Presidency remains as remarkable an institution as it ever has been, it’s definitely true that it’s never been a less transparent one, especially with respect to the exact nature of its formal and informal powers. To give just one example, there are 17 agencies in the so-called United States Intelligence Community, which, according to the latest figures available to the public, have granted top secret security clearances to a total of over 900,000 people. Meanwhile, President Trump is reported to have restricted his daily security briefing to two pages, while supposedly watching four hours of Fox News a day. What reason is there for anyone to believe that he’s actually in charge of what is going on in these agencies? Who can predict the impact that such calculated ignorance will have on our national security, or our foreign policy in general? Certainly someone is in charge — many someones more likely — but I doubt that any of them are significantly more accountable to the President, at least on a day-to-day basis, than they are to the public at large.

Admittedly it’s hard enough to run an effective federal administration with a full complement of politically competent policy experts, and a chain of responsibility that extends to the lowest level of the executive branch. You certainly can’t run one effectively with a staff consisting of your daughter, your son-in-law, Sean Hannity, Sheldon Adelson, a rota of retired generals, lobbyists and golf partners, and an assortment of idiot yes-people whose only significant achievement is the byzantine complexity of their self-abasement. The country is too large, its political and economic infrastructure too complex, to be managed entirely from the top down; the responsibilities of the Federal Government are too extensive, and its interlocking bureaucracies too encrusted with decades of turf wars, interagency rivalries, and deviant ideological agendas to respond competently to even the most intelligently conceived policy directives.

The bottom line, I’m afraid, is that the U.S. Constitution is showing its age, and so is the U.S. Presidency. I think it’s significant that both President Trump and three of his Democratic Party challengers for the office in 2020 are over 70 years old. I remember when we used to laugh at the infirmities of the gerontocracy under Brezhnev in the Soviet Union, and Mao in China. These days, it looks as though the laugh is on us.

*YMMV. I have say, though, that if I were a bookie, I’d be reluctant to offer the current Vegas line on that bet, especially if I had to lay off any significant amount of it. That’s the kind of move that might just wind up getting you your legs broken — or worse — even when most of your ordinary day-to-day tormentors would be running around shrieking and waving their hands, looking for a window to jump out of.

21st Century Institutions: the U.S. Supreme Court

Among certain kinds of Americans, rational legal arguments against the cruel and arbitrary use of power have always been seen as inconvenient abstractions. Essentially no one with enough muscle, money, or guns has ever taken them seriously. The law for such people is a tool, not a constraint, and so are the judges who administer it.

Nevertheless, we’ve been repeatedly assured by everyone from legal scholars and historians to high school civics teachers that the United States Supreme Court, with its constitutional imprimatur and lifetime judicial appointments, is uniquely well-defended against practitioners of this sort of cynical Realpolitik. It has a successful 200+ year history, our civic mythology tells us, of defending itself against outside political interference, and has proven to be an effective sanctuary for the disinterested legal processes necessary to ensure the equal justice under law promised above its front door. Assuming all of that is true, which is, frankly, a very big assumption, how is it, then, that the jurisprudence of the current conservative majority has come to resemble something cobbled together out of bits left over from the Nazi Volksgericht, or the Catholic Church’s Tribunal del Santo Oficio de la Inquisición?

In broad strokes, I think the story goes something like this: judicial independence, like academic freedom, is an aspirational concept. It appears to exist in the real world only when nothing of much real significance — political significance — is being contested. As a result, during much of the Court’s history, events have denied — or more charitably, spared — its justices the historical agency that myth-makers have insisted on attributing to them. Far from the being arbiters of the Republic’s destiny, they have, more often than not, gone about their business as the humble servants of convention that some of the more conservative justices clearly believed themselves to be.

As it turns out, however, servants of convention, no matter how humble they may be as individuals, often have the nasty habit as a collective of preferring injustice to instability, especially when the threat of instability is largely manufactured, and the injustice can be directed exclusively toward those convention holds in low esteem. While in public justices were alway careful to genuflect to the theoretically sacred principle of equal justice for all, in private they looked upon perceived insults to the powerful with extreme disfavor, regardless of their legal justification.

The Warren Court, however, seems to have been genuinely different. Perhaps the difference was a response to the tectonic shifts in the postwar political and economic order that were becoming increasingly apparent in the Sixties, or perhaps it was down to more personal experiences in the lives of individual justices that weren’t accessible to historians and observers of the Court then, and would be even less so now. In any event, it’s clear that the decisions Warren, Douglas, Frankfurter, and Brennan came to embrace placed their jurisprudence far to the left of any that adherence to convention would seem to have dictated at the time. This was a surprise to everyone, I think, not just to conservatives, especially given the fierce suppression of the Left that was already taking place in the Fifties under the aegis of Cold War anticommunism.

One could argue (I would definitely argue) that while the Warren Court was good for justice, it was not at all good for political stability. As liberals might have expected, had they not had their eyes so firmly fixed on the prize, the powerful felt powerfully insulted, and rightly so, given their expectations. The history behind those expectations was simple enough: Whatever cases the Court took up, whatever decisions it handed down, it had always been careful not to challenge the privileged influence over public policy that members of what, for lack of a better term, could be called the American ruling class, took for granted as a tribute to their status. As the liberal majority on the Warren Court began handing down decisions like Brown vs. Board of Education, Engel v. Vitale, South Carlina v. Katzenbach, or Watkins v. United States, it didn’t take a genius to figure out that such deference was effectively at an end. To the more conservative members of the ruling class in particular, this looked like nothing so much as the betrayal of ingrates who had somehow managed to forget who put them where they were, and had gone to work for the enemy instead. (Damned Roosevelt. Damned New Deal. Damned Negroes. Damned Women. Damned Commerce Clause. Double-damned Earl Warren. Etc., etc.)

In their historical role as the defenders of privilege, representatives of the political right have since argued, somewhat disingenuously, but not entirely without justification, that liberals were guilty of accepting from the Supreme Court what at the time they couldn’t possibly have gotten from the ballot box. In cases of systematic injustice, liberals have argued in response, the Court has a duty to intervene wherever and whenever the legislative branch is prevented from supplying the necessary remedy.

I admit I was sympathetic to the liberal argument when police dogs, firehoses, and Bull Connor were being marshaled against a busload or two of Freedom Riders, not least because it was already clear to everyone in the country that without intervention by the Court, the electoral process in the southern states would continue to be so severely compromised that justice for African Americans would remain unattainable for decades to come. I’ve since come to believe, however, that what the right was denouncing as legislation from the bench was indeed antidemocratic in the technical sense, and dangerous in the more general sense that it revealed at an extremely unpropitious moment in our history just how questionable the political justifications were for the Rule of Law that the public had been asked to accept as a sort of secular sacrament.

This was made abundantly clear during the Senate confirmation hearings for Robert Bork. At the time, the ideological hegemony, not to mention a majority of Senate votes, rested in the hands of the Democrats, who, exploiting what they must have realized would be a short-lived tactical advantage, promptly ignored precedent and stated openly and unequivocally that regardless of his judicial qualifications, Bork was unacceptable on ideological grounds alone. Although I agreed with their evaluation, I had serious doubts about the wisdom of their decision. Once the dust had settled, it was clear to me that no serious observer of the American justice system was ever again going to feel comfortable mentioning an independent judiciary and the Supreme Court in the same sentence.

The Republicans complained bitterly, but they also took careful notes. In the 33 years since the Bork hearings ended, they’ve successfully moved the ground of their battle with liberals over the makeup of the Supreme Court from abstruse arguments about original intent and judicial precedent to the more promising terrain of Senate confirmation hearings, where opposition research and character assassination can yield more concrete, as well as more immediate results. After Bork, it seems safe to say that any judge ambitious enough, and well connected enough, to have a chance of being nominated to the Supreme Court, would be well advised to make certain that nothing in the public record from the time he or she entered law school, or perhaps even high school, contains the slightest trace of support for either side in the ongoing cultural and ideological wars. During the hearings themselves, direct questions, if they are answered at all, should be answered with the kind of anodyne bloviation usually reserved for sports heroes or Hollywood starlets. In extremis, outright lying should be the response of choice, especially if it can be supplemented by a display of outraged innocence (see the Kavanaugh hearings).

Unsurprisingly, such bravura performances of our all-American black robe commedia dell’arte have yet to deliver us the jurisprudence that all evolving democratic societies need and should have every right to expect, nor are they ever likely to. Weak reeds that they are, this isn’t entirely the fault of the justices themselves. A lifetime of displaying their malleability, their willingness to go along to get along, is indisputably what snagged them a seat on the Supreme Court bench in the first place. Once they’re safely settled into what is effectively their new sinecure, integrity, even if any of them can remember what is actually meant by the word, will almost certainly look like more work to them than it could ever be worth. Sadly, that’s as much on us as it is on them.

As I see it, the outlook, especially in the short term, is dire. In the present political climate, we can almost certainly expect future Supreme Court nominees to have on their résumés not only an extended history of Federalist Society ass-kissing, but also appalling examples of sadism toward the less fortunate. There isn’t going to be any way to keep them off the Court, either, at least not any way that’s compatible with civilized behavior. Should those of us who are declared opponents of the authoritarian right give up, then, and let them turn the United States into another Turkey, or Hungary, or Brazil? Or should we prepare ourselves instead for the second civil war they’ve been threatening us with ever since Barry Goldwater first assured the assembled brownshirt wannabes of the Republican Party that extremism in the defense of liberty is no vice? (NB: these are not questions that either Hillary Clinton or Bernie Sanders is qualified to answer. Make of that what you will….)