Kavanaugh court confirmation battle based on shaky assumptions

The president proposed a new justice for the Supreme Court, and political war broke out. 

Most Republicans back him, believing he will strengthen a conservative majority.  Most Democrats oppose him, because they share that belief.  They worry that he would vote to reverse Roe v. Wade, the decision confirming the legality of abortion.

The nomination has produced conventional wisdom about the Court that is either doubtful or just plain wrong.  Reality might turn out to be different from today’s hopes and fears.

One claim is likely to be correct.  If Brett Kavanaugh, the nominee, joins the Court, he might remain on it for decades.  Justices are appointed for life, and a vast majority has served at least 10 years.  Right now, the longest serving justice is Clarence Thomas, who has been on the Court for 27 years.

Would Kavanaugh, a conservative, replace a swing justice?  Not really. There were 13 conservative-liberal votes by 5-4 in the latest Court term.  Retiring Justice Anthony Kennedy voted with the conservatives every time.  Not much “swing.” People who imagine a switch focus on his favorable view of the 1973 abortion decision.

Two conservatives, Chief Justice Roberts and newly arrived Justice Gorsuch, each provided a swing vote to the liberal side in the most recent Court year.  They filled the role mistakenly thought to belong to Kennedy.

There are other reasons assumptions about the Court may be wrong.  For example, justices’ views change over time. Two Republican appointees, Chief Justice Earl Warren and Justice David Souter, surprised the presidents that appointed them by their liberalism once on the bench.  Souter also surprised everybody when he retired early.

Does the Court always split on conservative-liberal lines?  On many social issues and hot-button political issues, it does.  The media pays a lot of attention to the political affiliation of the justices.  The implication is that that the bitter partisan split in Congress has spilled over into the courts. 

But most of its decisions have little to do with ideology and a lot to do with clarifying the law.  Of the Court’s 76 decisions this past term, 35 were unanimous.

These factors yield the conclusion that the claim that Kavanaugh would bring major change to the Court’s conservative-liberal balance could turn out to be less obvious than we suppose.

Whatever happens, there’s no doubt that Kavanaugh can be expected to serve “for generations.”  

Based on their expectation about him, conservatives are comfortable and liberals despair. 

In fact, something can and has been done in American history to prevent a long-term, locked-in ideology.  It begins with the fact that the size of the Court is not set by the Constitution, allowing 

Congress to make changes at will.

After Democrat Franklin D. Roosevelt became president during the Depression, he faced a conservative Court whose majority opposed many of his key New Deal economic recovery policies.  Frustrated, he proposed “packing” the nine-member Court by adding justices sharing his views.

Roosevelt won re-election by a landslide, carrying all states except Maine and Vermont.  Congress overwhelmingly was Democratic.  After witnessing Roosevelt’s big electoral win, some justices dropped their opposition to his proposals.  It was a case of “a switch in time saves nine.” 

While Roosevelt’s “packing” plan may not enjoy a favorable place in history, it worked.  What’s more, the move had been previously put into effect, not merely proposed.

During the Civil War, Lincoln had only a slim majority on the Court.  Congress enlarged the Court, setting the number of its seats equal to the number of federal courts of appeal, the regional courts just below the top court.  Then, it created a new appeals court.

The Lincoln Court had ten justices as a result of this “packing” the Court.  But Congress did not want to give any appointments to Andrew Johnson, his successor, and reduced the Court to seven justices. After Johnson left office, Congress restored the Court to nine.

When the Democrats control the federal government, as they surely will sometime in Kavanaugh’s long tenure, they could expand the Court and change the balance.  With a justice for each court of appeals, there would now be 13.

In 2016, the Senate Republican majority refused even to talk with President Obama’s final nominee, a moderate, much less hold a vote on his nomination. That unprecedented action was easily as extreme as court “packing.”  It makes adding seats seem less radical.

Supreme Court nominees once were routinely confirmed, giving the president full discretion.  That practice is almost gone.  It has been replaced by gamesmanship and mistaken conventional wisdom. 

America’s democratic experiment undermined by one-man rule

It all started in Philadelphia.  In the hot summer of 1787, a small group of men did something never tried before.

They drafted a plan for a new political system, a popular government to replace the British system of royal rule. The 39 state delegates planned that the people would rule their large country through their elected representatives – a chief executive and a legislature.

To prevent any president or Congress from assuming royal powers, the Framers of the Constitution set up a system of checks and balances and required frequent elections.  The result is the American republic. 

Protection of the people’s sovereign power relied on respecting the values ensuring that government power would be exercised within constitutional limits and that individual rights would have to be respected by government.  This became the concept called “liberal democracy.”

The American idea was so new and untested that the system was labeled an “experiment.”  Its purpose was to find out if one-man rule could be replaced by representative democracy with power exercised by federal and state governments, but with the people having the final say.

The Framers intentionally designed an inefficient system, making hasty decisions and one-man rule more difficult.  That inefficiency gave people the chance to exercise more careful control.  This American system would replace the efficiency of a king who made all the decisions.

Liberal democracy worked in the U.S., though not perfectly.  Still, its example led to its adoption in countries as diverse as Poland and Australia.  It took hold throughout Europe after the failure of Hitler’s dictatorial rule in Nazi Germany and the fall of Communism.  Any surviving kings or queens became mere figureheads.

But the American idea has recently come under serious challenge.  Its intentional inefficiency, meant to protect the people, has failed to produce results that some, perhaps only a minority of the people, want.  They are willing to accept some one-man rule to get what they want.

Tired of the cumbersome operation of representative democracy, some people demand change.  And change can mean accepting more authoritarian rule.

Take Hungary.  After the fall of Communism there, the country installed a democratic system.  But when Victor Orban was elected to be head of the government, he openly declared his country an “illiberal state.”   The people would vote, but would give up many of their rights to him.

Much the same has happened in Turkey, Poland, Venezuela and the Philippines.  Italy and Austria have begun to lean in that direction.  The tide of history seems to be running against the American experiment.  Popular control is giving way to elected leaders who impose their personal rule.

Is this turn toward the “illiberal state” taking place in America itself?  There’s little doubt that some Americans want change to restore a drastically limited government.  Or they may simply be fed up with the intentional inefficiency of democracy.  Government accomplishes little in their view.  A strong president can act.

President Trump, like the leaders of illiberal countries, appears to believe that his personal views should rule.  His belief may be based less on a well-developed political agenda and more on his confidence in his own ability to make the best deals and decisions through his claimed superior skills and based on his surprising electoral mandate.

While he is a Republican and members of the loyal GOP support him, he is not advancing traditional policies of his party, like free trade or opposition to Russia.  Instead, his personal policy views, often changing, dominate.

Experienced career officials are written off as being part of the “deep state.” Major federal government posts are left unfilled.  Agency heads are unimportant when the White House, under direct presidential control, is meant to be all the government the country needs.

Even in a small like Maine, the same move away from a democratic republic has been taking place.  The Maine system of government is similar to the federal system, but the people themselves may also pass laws by their direct vote.  This direct democracy is a hallmark of popular control.

But Gov. LePage forces his personal views on public issues to prevail over the vote of the people, who are supposed have the final word.  Mainers voted for Medicaid expansion, but he gained embarrassing national attention for the state when he said he’d go to jail rather than allow it to happen.

Is the American experiment losing out to one-man rule?  The answer may be far more important to the future of the U.S. and other democracies than the resolution of today’s policy battles.

Aging America needs immigrants or faces higher taxes, more imports

The country is becoming a nation of the elderly. 

In Maine, the future is us.  The state now has the highest median age of all states.

The U.S. birth rate continues to decline.  By 2035, Americans over 65 will outnumber all children.  A reduction in family size is typical of societies as they become more affluent. 

Not all families enjoy the same wealth.  More affluent families that have enjoyed economic opportunity have smaller families.  The reality is that mostly white families are causing the decline in the population.  

The country would have grown older more quickly, except for youthful immigrants and a higher birth rate among non-whites.  In fact, the number of non-Hispanic whites will begin the fall in just six years.  They will be less than half the population by 2045.

The booming senior population creates major economic problems.  There are fewer workers relative to the entire population.  One reason for Maine’s low unemployment rate is the shrinking number of young people in the state seeking work.

The reduced working population nationally will slow economic growth. It will simply be impossible for the smaller workforce to keep up production much less make it grow.  Increasing automation will help, but will not fully offset the decline in labor.

Current trade policy is based on replacing U.S. imports with domestic production in sectors from steel to autos.  But the U.S. economy will not be able to meet this challenge when employers won’t find enough workers.

The economy must shift toward meeting the needs of the enlarged older population.  Money that might have been intended to boost the economy either through tax cuts or public spending will go to support programs like Social Security and Medicare. 

Older citizens vote more heavily than the general population and cannot be denied.  They present major demands.  Estimates show that more than 40 percent of the aging population does not have enough money to maintain their standard of living in retirement. 

Social Security was meant to supplement other retirement plans.  But the percentage of the elderly with access to employer-funded retirement plans has plummeted.  And the 401(k) retirement plan has produced far less money for old age.

The traditional plan yielded a guaranteed retirement income and its assets were invested by professional managers.  But businesses found that, by using 401(k) plans, they could reduce their costs.  The payout would depend on investment decisions made by employees, the ultimate beneficiaries.

Reduced pension funding, recession and poor investment decisions drastically undercut the new system.  Added to these factors was the ability of beneficiaries to withdraw funds to meet family needs, thus stripping their own pensions.  This was not possible under the traditional system.

The inevitable result of inadequate pensions is greater reliance on the government, well beyond the effect of the population shift toward the elderly.  Social Security and Medicare, funded by contributions from current workers, are asked to do more while receiving less.

To deal with the crisis of a smaller workforce and a larger senior population relying more heavily on government, only two solutions appear to have any chance of working – more imports and higher taxes. 

Income support programs will have to be financed by higher payroll taxes. Domestic production will have to be replaced by foreign goods.   Both could undermine economic growth.  

The U.S. now wants to cut imports from countries with cheaper labor and lower environmental standards.  Conditions abroad may improve, but, whatever happens, the U.S. will remain dependent on foreign goods produced by foreign labor.

Raising taxes and increasing imports run counter to current Trump administration policy.  Yet these actions will not be a matter of choice.  They are the inevitable result of a falling birth rate and an aging population. 

An alternative, already shown to work throughout American history, is obvious.  If a nation of immigrants returned to its traditional immigration policies, it could quickly increase the number of American workers and customers. 

New Americans would supply the payroll taxes to support Social Security and Medicare, and they would stimulate economic growth by boosting both production and demand.

Current opposition to immigration stems from concerns that new, young arrivals change the ethnic make-up of the country.  But that change is taking place naturally, even without immigration.

In recent years, Congress has come close to agreeing on a new immigration policy, going beyond merely closing the door on illegal immigrants.  Economic reality dictates the need for congressional action that does more than build a wall.

The best solution for an aging American population is to make it younger. 

   

American “socialism” – a threat or a promise?

Could America become socialist?

That’s where some conservatives believe the country would be headed under the Democrats. Sen. Bernie Sanders has been leading a progressive movement that has gained widespread support.

Conservatives, like columnist George F. Will, warn of government displacing free market corporate decision-makers in setting industrial policy.

Will’s concern does not match what Sanders would want. Nobody proposes historic socialism with government ownership or control of all production.

Americans believe in the free enterprise system. Most would worry if the government made decisions that should be freely made by individuals. So, what might socialism mean in the U.S. with its long and firm tradition of individual liberty?

Inevitably, it would involve a larger role for government, paid for by taxes. But, instead of government taking over businesses in line with historic socialism, the American version would more likely enhance the public role in meeting the basic needs of Americans. Here are some examples.

Social Security is becoming a national retirement program, though that was not the original intention. People do not save enough for their retirement, and many have no access to an employer retirement plan. Many retirees must find ways to live on Social Security and not much else.

If Social Security were converted into a real national retirement plan, seniors would be helped and private retirement plans could become an employer option, not a necessity. Of course, tax support would have to increase, but employers would save by not having to offer their own plans.

The private sector could be involved. Today’s retirement plan operators might provide, through competitive bid, investment services to the government.

Much the same would be the case for health care. Right now, health insurance is costly, does not cover tens of millions and the level of care is questionable as many people are rushed through doctors’ appointments to keep up cash flow.

Government now pays many medical bills though Medicare, Medicaid or the Veterans Administration. Because the health care system largely involves the government paying somebody else’s bills, there’s room for cheating.

To get around the weaknesses of the current system, some advocate a single payer system where government pays all the bills and is able to control costs and availability through its market power. Doctors would not need to be government employees, and people could still choose their doctors.

The Affordable Care Act was meant to be a step toward government coverage for an increased number of people. Though it has produced some benefits, socialists would say it is half-hearted and thus bound to disappoint.

Recently, proposals have appeared for a “universal basic income.” The government would ensure that everybody received a modest income, providing protection as technology eliminates jobs. Recipients would be expected to carry out public service tasks and seek work, if physically able.

Similarly, Sanders and others advocate a free college education for all to help workers keep up with technological change.

Government would have a major economic role in promoting growth during a recession by increasing its purchases from private suppliers. Spending on public works can be boosted, just as the Obama Administration did.

Stimulating the economy costs money and that may mean an increase in the public debt. But that could be more effective than boosting the debt by cutting taxes, in the hope that tax savings will be converted into private sector investment and not just more profits.

Everybody is affected by the environment. Claiming it smacks of socialism, private sector leaders, like the famous Koch brothers, fight any regulation, because it reduces profits. Almost certainly, it does. But limiting industrial activity, like burning coal and off-shore oil drilling, can produce longer-term benefit.

Conservatives argue that bureaucrats have too much power and can impose their own environmental views. But that’s not their fault. Congress passes general mandates and leaves too many details to the administrators. Congress needs to legislate more clearly about its intent, leaving less discretion to regulators.

All these aspects of a possible American version of socialism clearly do involve an enlarged role for government. Opponents argue that people ought to hold onto their money and make their own decisions rather than funding government to play a greater role in their lives.

Individual liberty is at the essence of the American system. But that does not prevent people from agreeing voluntarily to deal through government with common challenges.

Even watered down “socialism” probably won’t prevail any time soon, but proposals for a greater government role are now on the table. That should make for interesting elections.