In Case You Didn't Realize, It's All-Out War Out There

If the Kavanaugh confirmation hearings have done anything for us, it has been to make absolutely clear that our political arena today is in a state of all-out war. The old term was “polarization.” That seems so quaint now.

It’s not my purpose to weigh in on the credibility contest between Judge Kavanaugh and his main accuser, Christine Blasey Ford. What’s more notable to me is that the Democrats, to a person, have shown that they care so desperately about stopping this guy. It’s not just that the principal accusation in question is so old, and so completely uncorroborated, and involving people of such a young age, that I would never have thought that Senators of either party would have brought a witness like this forward in such a context. But then there are all the surrounding indicia of no-holds-barred fight to the death: holding the accusation secret for six weeks and then springing it on the eve of a vote in a Hail Mary play for delay; dishonoring the accuser’s request for anonymity and turning her into roadkill of proceedings where all that counts is momentary political advantage; the sudden last-minute emergence of multiple additional accusers, each more preposterous than the next, including one alleging that the nominee organized a dozen or so gang rape parties.

And of course, meanwhile, as one example, there is the near total lack of interest in recent, credible, well-corroborated reports of physical abuse of two women by the Vice Chair of the Democratic National Committee, who is also the Democratic candidate for Attorney General of Minnesota.

You could be forgiven for concluding that there must be something much more important at stake here than what did or did not happen at some house in the DC suburbs in the summer of 1982. Or, at least, something that is perceived as being much more important.

I gave a first take on this subject in a post three weeks ago titled “Explaining The Kavanaugh Freak-Out.” Here’s an elaboration: If the Democratic party faction controls the bureaucracy and the courts, it can very substantially block most important initiatives from a Congress and Presidency, even though those branches be fully in Republican hands. And thus, the combination of bureaucracy and courts can render elections close to meaningless, or at least, can render meaningless those elections where Republicans get elected. But it takes both the bureaucracy and the courts to achieve this result. With Kavanaugh on the Supreme Court, control of the courts may have slipped away, and likely for a long time.

Note that this proposition is not symmetrical, because the Democrats almost by definition control the bureaucracy at all times. Look at the vote totals from the last election. In the District of Columbia, Hillary won 90.9% of the vote, to 4.1% for Trump. That tells you all you need to know about the political orientation of the permanent bureaucracy. This phenomenon stems from a fundamental fact of life, which is that people who go to work for the government inherently believe in the mission of the bureaucracy and that they are accomplishing something important in the world. They are not going to be talked out of this belief. Sure the Republicans can put a few new people at the top. But those people will always face a guerrilla war of resistance from the permanent bureaucracy. Elected Democrats will never face this resistance. And then, add in the effect of the courts.

To his credit, President Trump has been unusually energetic in seeking to take control and affect the direction of the government agencies. You are probably aware of a few instances where the courts have blocked his initiatives. But until you see a collection of these things in one place, you probably don’t realize the extent of the blockage:

  • One of Trump’s first executive orders was what became known as the “travel ban,” temporarily restricting travel to the U.S. from seven countries pending more thorough vetting. Lower federal courts sequentially struck down three versions of this executive order, until the third version finally reached the Supreme Court in June 2018. The Supremes ruled (5-4 on a classic conservative-liberal split) to uphold the President’s order.

  • In 2012 President Obama initiated the “DACA” program (“Deferred Action for Childhood Arrivals”) to allow people brought to the U.S. as children to stay by government forbearance of enforcement, even though the individuals had no legal status in the country under existing immigration law. President Trump announced cancelation of the program in Fall 2017, which essentially meant simply going back to enforcing the immigration laws as written. Multiple courts thereupon struck down Trump’s effort to one degree or another, with one federal judge in Washington ruling in January 2018 that Obama’s DACA program must be fully reinstated. This one continues to play out in the courts.

  • Trump attempted a rollback of an Obamacare requirement that employers cover the cost of employee contraception when they provide health insurance. A federal judge in Pennsylvania blocked that.

  • Trump issued three executive orders affecting federal employees, including restricting the performance of union work on the taxpayer dime, and making it easier to fire non-performing workers. A federal judge in DC struck those down just last month.

  • Out in Oregon, one of the cases that I have nominated for “stupidest litigation in the country” is about to proceed to trial in October. This one is the case brought by a group of minors seeking to have the court enjoin all use of fossil fuels in the country on the ground that the threat of “climate change” violates the plaintiffs’ constitutional “right to life,” or something like that. Efforts of the Trump administration to get the Ninth Circuit to stop this circus have failed. Believe it or not, the judge is thought likely to be issuing some kind of relief for the plaintiffs at the end of the trial.

  • Meanwhile, the other group of cases that got my “stupidest litigation” nomination — the cases brought by various municipalities against oil companies for the supposed “nuisance” of allowing CO2 to go into the atmosphere — have mostly been dismissed. But don’t forget that these things can be appealed. Any one of the multiple appeals courts that gets one of these cases can theoretically order a case to trial, and lead to a multi-billion dollar verdict. Ultimately, only the Supreme Court stands in the way of total insanity.

  • And don’t forget the case about the Obama-era Clean Power Plan, seeking to double your cost of electricity to save the world from maybe something like 0.01 deg C of “global warming.” I covered that one just yesterday. Pretty much everybody thinks that the DC Circuit, once it gets around to ruling, will order the Trump administration to follow the Obama administration’s regulation, and not to rescind it. Again, only the Supreme Court ultimately stands in the way.

There are plenty more examples, but these may be the most important. Anyway, as you can see, the real question is, are elections where Republicans get elected allowed to have any effect? Perhaps you are gradually getting some idea of why Democrats see control of the Supreme Court as so important.