By Jack Butler
Wednesday, September 29, 2021
When the future of the American republic is at
stake, there is only one thing we can do: Give Democrats what they want. Or so
you might think after reading Robert Kagan’s Washington Post essay
“Our constitutional crisis is already here.” In Kagan’s
reckoning, Donald Trump’s continued hold on the Republican Party, his
persistence in believing that he won the 2020 election but it was stolen from
him, the state-level actions of Republican lawmakers, the expectation that he
will run again, the weaknesses of the Democratic Party, and the likely gain of
congressional power by Republicans all mean that we are facing a crisis. The
U.S., Kagan believes,
is heading into its greatest
political and constitutional crisis since the Civil War, with a reasonable
chance over the next three to four years of incidents of mass violence, a
breakdown of federal authority, and the division of the country into warring
red and blue enclaves.
Kagan adds that “the destruction of democracy might not
come until November 2024, but critical steps in that direction are happening
now.” His appeal is, at least theoretically, aimed not simply at Democrats, but
at the Republicans and conservatives who were and remain unwilling to follow
Trump down his irrational and destructive post-election rabbit hole of
election-denialism. But whatever feints Kagan makes in their direction, his
ultimate “bargain” for those who wish to adhere to conservatism yet resist
Trump’s excesses is, essentially, to give them nothing in return for yielding
to the desires of the Democratic Party, which he presents as the only solution
to our present crisis.
To understand Kagan, it is first necessary to understand
what legitimate points he makes. He is right on the general points that Trump’s
post-election claims were lies and that Trump’s attempts to defy the results of
the election, culminating in the January 6 Capitol riot, should
be condemned. He is right to applaud the “recalcitrant Republican state
officials who effectively saved the country from calamity by refusing to
falsely declare fraud or to ‘find’ more votes for Trump,” as well as “the
reluctance of two attorneys general and a vice president to obey orders they
deemed inappropriate.” And there is plausibility to his call for liberals and
Democrats “to distinguish between their ongoing battle with Republican policies
and the challenge posed by Trump and his followers.” The former, he says, “can
be fought through the processes of the constitutional system”; the latter “is
an assault on the Constitution itself.”
Unfortunately, Kagan’s overall prescription is defective.
It is marred, in the first place, by his inability to follow his own counsel.
For one, though he ostensibly distinguishes between Republican actions in the
more workaday business of politics, in which parties are naturally expected to
exist in some measure of opposition to one another, and Trump and Trump-allied
efforts to challenge the constitutional system, Kagan asserts that, in fact,
“the two are intimately related, because the Republican Party has used its
institutional power in the political sphere to shield Trump and his followers
from the consequences of their illegal and extralegal activities in the lead-up
to Jan. 6.” Kagan believes that it should not be possible to behave, in other
respects, as a Republican normally would so long as elected Republicans do not
yield to all of his preferences. He is aghast at the audacity of Republicans to
“play the role of legitimate opposition” to a Biden administration that, he at
least admits, “is not without faults.” But even though such criticisms of Biden
might have “legitimacy,” they are a dodge so long as Trump remains out there,
plotting his next move.
As his worst actors, Kagan has in mind, specifically,
Representatives Kevin McCarthy and Elise Stefanik, whose efforts against
Democratic attempts to investigate January 6 are simultaneously worthy of
criticism and an understandable, if inadvisable, response to Democrats’
attempts to convert the events of January 6 — which I condemned at the time — into a partisan
weapon. The efforts of Republicans in this area proceed largely in reaction to
what Democrats perceive as the lingering political utility of January 6. You
could say some Republicans bear a measure of blame for the continuation of this
political situation for having declined to use the most powerful political
censure available in our system of government to condemn Trumps’ actions, even
as it is obvious that Democrats have a vested interest in elevating and
extending their hyperbole about January 6.
But this criticism does not apply to the Republicans who
voted to convict Trump in his impeachment trial, whom Kagan denounces anyway.
He does single them out for a kind of praise, calling their vote “brave” and “a
display of republican virtue.” Yet he goes to lament that
Republicans such as Sens. Mitt
Romney and Ben Sasse have condemned the events of Jan. 6, criticized Trump and
even voted for his impeachment, but in other respects they
continue to act as good Republicans and conservatives. On issues such as the
filibuster, Romney and others insist on preserving “regular order” and
conducting political and legislative business as usual, even though they know
that Trump’s lieutenants in their party are working to subvert the next
presidential election.
Even these Republicans are, in Kagan’s view, “enabling
the insurrection.” To him, even their “brave,” virtuously republican stance
against Trump is merely “symbolic.” Claiming to distinguish between legitimate
and illegitimate Republican efforts and effort-makers, Kagan seemingly
concludes that even Republicans who resisted Trump have failed to act
virtuously. “Despite all that has happened,” he laments, “some people still
wish to be good Republicans even as they oppose Trump.” This describes many who
might have been interested in joining Kagan’s efforts, were he not intent on
repelling them.
So what can a Republican do to secure Kagan’s imprimatur?
Simple: Accede to Democrats’ wishes, including their own preferred perversions
of the constitutional order. His ask in this area that, superficially, seems
most directly connected to the crisis he describes is passage of Democratic
efforts at voting reform. It is a suspicious coincidence that a bill which takes
power over elections away from states; centralizes it in the federal government; restricts First
Amendment rights so broadly that even the ACLU has taken issue; is almost certainly unconstitutional in multiple provisions;
and, most dubiously, has been on the Democratic wishlist since 2019 (N.B. before the
2020 election) just so happens to be the solution to all that ails our
republic. (So suspicious that Kagan accepts a watered-down version might be
necessary.) The 2020 election wasn’t stolen, but Democrats’ proposed
election-reform bills have been sweeping enough to seem like, essentially,
announcements of an intention to use the federal government to compromise
future elections.
Kagan does not recognize or condemn any of the
politically and legally suspect attempts by Democratic officials in swing
states to unilaterally and haphazardly alter election procedures (which, to be
clear, did not actually successfully swing the election for Biden). Nor does he
acknowledge that pandemic-driven contingency rules about voting — which he
innocuously describes as protecting “election workers, same-day registration
and early voting” — were designed for emergency circumstances and are well
within the purview of state legislatures to change. No, these emergency rules
are now the baseline. Any revision thereof is automatically suspect.
But Kagan cannot resist restricting his demands merely to
this, and thereby gives the game away. The filibuster, now one of the
instruments of our constitutional apocalypse but as recently as 2017 endorsed by 30-odd Democratic senators, must also go.
And if anti-Trump Republicans were truly serious about their commitment to
democracy, they would not just join Democrats in a “national unity coalition”
that concerns itself only with “matters relating to the Constitution and
elections.” They would further consider allying with Democrats on a “temporary
governing consensus on a host of critical issues: government spending, defense,
immigration and even the persistent covid-19 pandemic, effectively setting
aside the usual battles to focus on the more vital and immediate need to
preserve the United States.” Once again, conveniently, acting as a Republican
in good faith is impossible, in Kagan’s reckoning. The lingering specter of
Trump makes it incumbent on Republicans, for some reason, simply to roll over
on other issues.
That Kagan would begin with a seemingly earnest attempt
to create a coalition united against Trump’s efforts to subvert our
constitutional system and transform it into a campaign to pressure Republicans
to abandon what they believe is less surprising given the essay’s indications
of his own partisan leanings. Take his belief that it was in some way unseemly
for Republicans to have dared to seek conservative policy victories, such as “hundreds of conservative court appointments, including
three Supreme Court justices; tax cuts; immigration restrictions; and deep
reductions in regulations on business” during Trump’s presidency. To make sure
you get the point, he hyperbolically compares such behavior to the German
conservatives who “accommodated Adolf Hitler.”
There is also his generous treatment of Al Gore’s own
post-election tantrum in 2000:
Al Gore and his supporters
displayed republican virtue when they abided by the Supreme Court’s judgment in
2000 despite the partisan nature of the justices’ decision.
Al Gore’s “republican virtue” dragged out the proceedings
of an election for months, contributed to the contemporary belief of a large percentage of Democrats that George W. Bush was an
illegitimate president, and ratcheted up a bipartisan feedback loop of
bipartisan belief in illegitimate elections. That belief was evidenced on the
left as early as 2004, when, in the wake of nonsensical theories about Diebold voting machines in Ohio,
some congressional Democrats voted to object to the certification of Bush’s
reelection victory (they were as wrong to do it as Republicans were to do it in
2020); reared its ugly head in 2016, when many Democrats believed that Russians had hacked Trump’s vote
totals; showed up in failed Georgia Democratic gubernatorial candidate
Stacey Abrams’s lie that she won the 2018 race; and had groundwork being laid
for it just in case in 2020, when Democrats were preparing themselves to
believe that Trump was conspiring to have the U.S. Postal Service steal the
election. Republicans have not been blameless in this area. But if Kagan
were interested in genuine conciliation instead of partisan extortion, he might
have acknowledged the faults of the Left here.
Kagan makes a few other, scattered hints toward
concession. But the preponderance of his argument, and its overall thrust,
suggests their insincerity. The attempts to magnify and manipulate concerns
about what Trump might do in 2024 to extort Republicans and conservatives into
abandoning their commitment to what they believe, however, seem quite sincere.
In this, he resembles Vox senior correspondent Ian Millhiser,
who cannot tolerate the fact that the Supreme Court
justices of a tainted president get to remain on the bench (they get no credit for ruling against their appointer,
apparently). The common thread here is an inability to separate legitimate
political action and interest from subversion of the republic, and a deliberate
attempt to blur the lines between the two so that they can be condemned as one.
That Kagan would make such an attempt indicates either
that he does not actually see this crisis as being as serious as he wants you
to think (as otherwise he might consider offering more than token concessions
to erstwhile political opponents interested in acting in good faith on this
issue), or that he is incapable of rising above his partisan station to meet
it. There may well be serious challenges facing the American constitutional
system over the next four years. But we will not resolve them by introducing
others. Unless or until those on the left end their own attempts at introducing
new deviations from the American political order, then those on the right who
oppose all forms of constitutional mischief, not just Trump’s, will have to do
so alone.
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