Courting Disaster

I’ve come to react to right-wing complaints about the left’s threat to civic “norms” the same way I react to right-wing complaints about media bias.

First, I think: They have a point.

Media bias is real. I’ve written hundreds of posts about it in the last 20 years; no conservative activist will ever want for examples. Democrats playing fast and loose with norms is real too. For instance, the president has no power to unilaterally forgive student loans just because he wants to bribe college grads in an election year, but good luck telling that to Joe Biden.

Then, I think: They have ulterior motives.

Media bias is real, but it’s also a chronic scapegoat for populist propagandists obliged to make excuses for all of Donald Trump’s failures. (“He lost the debate because the moderators were unfair!”) No one whines longer or more loudly about the liberal press than anti-anti-Trump cowards who know he’s a cancer on America but can’t muster the nerve to leave the tribe.

The same goes for their grumbling about Democrats threatening norms. It’s hard to take them seriously even when they’re right, as their defense of “norms” usually reeks of a bad-faith effort to level the moral playing field between Trump and whomever they’re critiquing. Trump tried a coup; Biden wants to forgive student loans. Those are both bad, no? And since they’re both bad, your conscience should presumably be clear when you vote Republican on Election Day. I don’t trust the right’s “norms” police anymore, but there are still a few commentators whom I hold in high regard because they’ve been clear-eyed and unsparing about the Trumpist threat from the start.

One is Ramesh Ponnuru. When Ramesh calls a civic foul on someone aligned with the left, it’s worth paying attention.

Earlier this month, he blew the whistle on Liz Cheney in a column that’s worth revisiting after she administered the last rites to the old GOP in Wisconsin yesterday. How can Cheney endorse Kamala Harris on civic grounds over Trump, Ramesh wondered, when Harris is scheming to pack the Supreme Court?

It’s one thing to say, quite correctly, that conservatives who care about the Constitution shouldn’t vote for Trump. It’s another to say that they should vote for Harris. If Cheney cares so much about norms, how has she gotten to yes on a candidate who would turn the federal judiciary upside down?

It’s a fair question.

Defending the indefensible.

Most Republican attacks on Cheney are stupid.

The right’s more demagogic elements like to accuse her of being a “low IQ War Hawk” who supposedly resents Trump for not wanting to invade every country on Earth. The rest end up sputtering about hypocrisy and partisan treason: Harris is progressive while Cheney claims to be conservative, and that just can’t be on the level.

Almost never do they meet her where she stands. Cheney’s argument for Harris is a classical liberal version of the GOP’s “Flight 93 election” reasoning from 2016. It’s a basic matter of proper prioritizing: Agreement on norms trumps disagreement on policy. If you hand power back to Trump, he’ll crash the constitutional order. The conservative thing to do under the circumstances is to storm the cockpit by backing Harris, who’ll at least keep the plane in the air.

Ramesh’s challenge to Cheney engages her on her own terms. Given Democrats’ designs on the Supreme Court, isn’t a Harris presidency also likely to result in a very rough landing? Why isn’t Liz Cheney, who cared about left-wing court-packing schemes as recently as 2020, talking about this?

The answer, I assume, is that she doesn’t want to have to defend the indefensible.

I can’t do better than Adam White did in explaining everything that’s wrong with the Biden-Harris court “reform” plan, but it boils down to three points. One: Some of what Democrats want to do, like imposing term limits on the justices, is almost certainly unconstitutional as legislation. Yet not only does Harris’ party want to move that bill, according to Sen. Sheldon Whitehouse they’re hoping to nuke the filibuster and pass court reform as part of a single blockbuster norms-busting package. Judicial term limits, codifying Roe, expanding voting rights, banning “dark money”—it’s all going into the soup, lawful or not.

Two: The point of granting life tenure to federal judges is to encourage them to rule fairly in each case, without needing to worry about the political consequences of their decisions. The Biden-Harris plan for judicial term limits would turn that on its head by phasing out long-serving conservatives like Clarence Thomas for no better reason than that the left hates their jurisprudence. And as White notes, term limits would create perverse political incentives for future justices, too. A young appointee who knows that their time on the court is limited to 18 years will worry about their job prospects afterward, and those prospects might depend in part on the political implications of their decisions.

Three: If classical liberalism means anything, it means that one’s faith in civic institutions should depend on whether those institutions reliably follow a fair process, not whether they reliably produce favorable results. Trumpism perverts that logic, holding that only if the results are favorable should an institution’s process be judged fair. As their hostility to the Supreme Court deepens, Democrats resemble Trumpists more than they resemble classical liberals. Look no further than how trust in the judicial branch collapsed from 50 percent within the party in 2021 to 25 percent in 2022, an all but overnight backlash to the outcome in the case that overturned Roe. Taking a sledgehammer to judicial independence because you’re mad that conservatives are ruling conservatively is not so norms-y.

How is Liz Cheney, Norms Sentinel™, supposed to defend any of this? 

She could claim that Harris doesn’t mean any of it, that the court-reform nonsense is nothing more than left-wing boob bait engineered to get pro-choicers excited to turn out next month. It’ll be quietly forgotten once the new president is sworn in. And maybe it will.

But Cheney doesn’t know for sure, does she? Harris has also called for eliminating the filibuster and enacting statutory abortion rights if her party retakes Congress, for example, and I’m inclined to believe that she’ll feel obliged to follow through on that. Even if it’s true that Harris doesn’t mean what she says, Donald Trump routinely says hair-raising things that he might not mean either. If it’s not fair to hold court-packing against her, why is it fair to hold his heavy breathing about “retribution,” say, against him?

Cheney could also claim that there’s no point worrying about court reform if Harris wins, since she wouldn’t have the votes for it in the next Congress. It’s very likely that Republicans will have a majority in the Senate and quite likely that they’ll expand on that majority in 2026, when the electoral map and the dynamics of midterms would favor them again. Even if Democrats hold the Senate this fall, the party’s vulnerable swing-state incumbents would be leery of ramming through something as aggressive and incendiary as a court-packing plan. Their majority will be too narrow to pass the bill. It will fail.

This is also probably correct, but a candidate like Harris who postures as a bulwark against norms can’t lapse in and out of that identity based on feasibility. The correct argument against court-packing isn’t “we don’t have the votes to do it,” it’s “we shouldn’t blow up Article III because we’re pissed off about a few rulings.” The feasibility defense implicitly encourages young Democrats to keep pushing for court “reform” since, after all, they might have the votes someday. A leader who cares about norms in earnest should show more leadership than that.

And besides, the feasibility defense is another one that works for Trump. Why worry about mass deportation or tariff-palooza or withdrawing from NATO? He needs help from the Senate on all of that, and Republicans won’t have anywhere near 60 votes, right?

The easiest way for Cheney to address Harris’ scheming about the court would be to tell the truth: It’s a terrible idea that undermines Democrats’ pretensions to be guardians of the constitutional order. But that would be an awfully uncomfortable admission under the circumstances, when she’s making a civic case to Reagan conservatives to vote Democratic next month. How do you get classical liberals excited to storm the cockpit while you’re warning them that Harris also isn’t much of a pilot?

Ultimately, Ramesh’s point is an excellent argument for why no one who takes norms seriously should find themselves “coconut-pilled” about their choice next month. I don’t and can’t know if Liz Cheney is privately enthusiastic about a Kamala Harris presidency, but, er, she emphatically should not be.

Which is different from saying that she shouldn’t strongly prefer Harris to Trump, court-packing warts and all.

Landing the plane.

One thing that can be said for Democrats’ court-packing scheme that can’t be said for Trump’s most infamous power grab is that they’re aiming to achieve it through normal institutional means. They’re trying to change the rules of Article III in a pernicious way, but there’s no reason to think they won’t follow the procedural rules for how such changes should be made. Or that they won’t be thwarted by those rules in the end.

Joe Biden has called for overturning the court’s atrocious decision on presidential immunity earlier this year via a constitutional amendment. That’s the proper procedural approach to undoing a bad outcome. Enacting judicial term limits via simple congressional legislation is far more dubious—enough so that I think it’s irresponsible for Democrats to try it—but that legislation will be subject to judicial review, and Harris and her party have given no indication that they won’t obey an unfavorable ruling. She might even expect the new law to be struck down, which is why she feels no compunction about endorsing it.

In the unlikely event that the bill passes and is upheld, Republicans will be free to repeal it the next time they regain control of the federal government, or to engage in tit-for-tat by adding their own new justices to the court. And Democrats would know that, which in theory should deter them from starting the tit-for-tat to begin with.

The one true procedural irregularity in the Democratic scheme would be ending the Senate filibuster so that they can pass court “reform” with 51 votes. But even that isn’t so much irregular as it is ruthless and shortsighted. The Senate is free to make its own rules, after all, and operated without the de facto 60-vote threshold to which we’ve grown accustomed for most of its history. Again, if liberals want to set a new precedent of using simple majorities to make momentous institutional changes, they’ll have to do so knowing that Republicans can and will eventually use that precedent as well.

All of which makes this distinct from Trump’s worst affront to “norms.”

Nothing about Democrats’ Supreme Court “reform” nonsense is going to land Kamala Harris or Chuck Schumer under federal indictment for numerous felonies. Nor would anything prevent voters who dislike seeing Congress tinker with the judiciary from punishing Democrats severely at the polls. If, on the other hand, Trump had successfully connived, defrauded, and intimidated his way into remaining in power for a second term after losing an election, all institutional checks designed to make the executive accountable to the people he serves would have been defeated. What he did wasn’t just a difference in magnitude relative to what Democrats hope to do with the court—it was a difference in kind.

And that undercuts the point I made earlier about how both candidates this year might behave less aggressively as president than their most outlandish ideas would suggest. The comparison isn’t apples-to-apples for the simple reason that Trump has actually tried to overturn a presidential election. For all her faults, Kamala Harris has done nothing remotely comparable. Right-wingers keen to draw civic equivalencies between the two have a knack for glossing over that. Both nominees have proposed certain indefensible ideas; only one has taken America to the brink to show that he means business.

Frankly, Trump is so manifestly unfit for office in ways that Harris isn’t that basing the case against him on his 2020 coup plot arguably does him a favor by overlooking what a full-spectrum cretin he is. Harris doesn’t routinely wink at political violence or strive, day after day and year after year, to convince Americans that their entire system of government is a scam to the extent that it doesn’t serve her interests. From what I can tell, Trump’s closing argument in this year’s campaign isn’t going to be inflation or “America First” but rather a conspiracy theory that Democrats stole money from FEMA to give to immigrants whom they’re planning to send to the polls next month to elect Harris illegally.

Harris also doesn’t command the obedience of officials in her party the way Trump does, to put it mildly. The irony of faulting her for wanting to expand the court is that, if she wins and Republicans regain the Senate majority, it’s quite possible that she won’t end up with any Supreme Court appointments—even if vacancies open up organically during her term. The GOP might simply refuse to let her fill any open seats. It’ll be the 2016 Antonin Scalia standoff all over again, but with no “election year” excuse this time.

The political environment would make it hard for them to do so. Trump and his base will be utterly convinced that she cheated to win and will argue furiously to Senate Republicans that she shouldn’t be rewarded for her deceit with Supreme Court picks. Harris is already so worried about a comprehensive GOP roadblock on Cabinet vacancies, in fact, that she’s reportedly considering asking some of Biden’s appointees to stay on if she wins. If the stakes are that high for positions at executive agencies, imagine how much higher they’ll be for a position on the court. 

If Republicans opt to hold a court seat open indefinitely rather than let Harris fill it, the same Democrats who are backing court-packing now will demand to know where the right’s respect for norms is. And the same Republicans who are criticizing Harris now for wanting to pack the court will calmly reply that, in the end, “norms” are for the voters to decide. There’s nothing unlawful about holding a seat open; it’s the Senate majority’s prerogative to do so if it likes, just as it’s the majority’s prerogative to end the filibuster and pack the court if it likes. The voters will render their verdict in the next election.

If you’re alarmed by a party that might try to impose term limits on the Supreme Court—and you should be—you should also be alarmed by a party that might plausibly try to end Supreme Court appointments altogether when it doesn’t control the presidency because of the election-rigging fever dreams of a halfwit game-show host.

I suspect that’s the way Liz Cheney views this. Harris’ court-packing scheme is obnoxious, but what Trump and his party have become is so far beyond that in so many ways that the scrupulous neutrality favored by Ramesh just isn’t conscionable. The cockpit must be stormed. You do your best with the civic muscle that’s on hand, however underwhelming it might be.

What Cheney might also say is that if you’re worried about Kamala Harris overreaching as president, that’s all the more reason for classical liberals to exert some pressure on her in the right direction by joining her coalition. A Harris who owes her margin of victory to progressives is a Harris who’s free to appease their animosity toward the Roberts Court. A Harris who owes her margin to crossover Republican voters is a Harris who’ll have to be careful about alienating the center with power grabs at conservatives’ expense.

And certainly, a Harris who has Liz Cheney campaigning with her in Wisconsin today is more likely as president to take a phone call from Liz Cheney tomorrow asking her to cool it with the court “reform” argle-bargle.

Defeat Trump, save the plane, and then get ready to start barking at Captain Kamala Harris on which way she should steer. It’s straightforward from here.