Faites vos Jeux!

With the Democrats’ nomination of Hillary Clinton, it’s official.  In November, the American people will confront one of the least appetizing choices in our history.

In Donald Trump, the nation’s most ignorant, bigoted, and antediluvian elements have, at last, their tribune.  The enthusiastic Trump voter, if justifiably angry, is also – at heart – a troglodyte.  The Tea Party element, having destroyed two thoroughly decent and eminently qualified candidates – Senator McCain and Governor Romney – by forcing them into their procrustean mold, have finally gotten their man.

Needless to say, many millions of intelligent, thoughtful Americans will flip a lever or punch a chad for Donald Trump – without having their hearts in it.  But those who vote enthusiastically for the Republican nominee, by their very existence, call into question the idea of universal suffrage as a fit way to of govern a great republic.

Then there is Hillary Clinton, a woman of formidable abilities who was certainly, in her youth, a genuine patriot devoted to worthy causes.  It is an interesting exercise to imagine that earlier Hillary, formed by different experiences, as a sort of ideal leader in a system not so dependent upon personality and the ability to educate and mobilize the citizenry – a parliamentary system, perhaps.

But the idealistic young Hillary Rodham lived a long time ago, and observant citizens can hardly be blamed for concluding that, as Mrs. Clinton, she has long since gone over to the Dark Side.  Over the decades, she has made one Faustian bargain after another – almost certainly beginning with her decision to marry a thoroughly charming, utterly amoral, and infinitely ambitious young man from Arkansas. 

She showed her true colors in 1998, when she “stood by her man” and did not – in the family conversations which determined whether Bill Clinton would attempt to outlast the Lewinsky scandal – insist that her husband resign.  Most Americans have yet to grasp the full significance of that decision.  

To be sure, President Clinton could – and should – have overcome a mere episode of extramarital fellatio.  These things happen.

But his subsequent efforts at evasion and cover-up - climaxed by a finger-wagging, direct denial to the American people - were the moral equivalent of Watergate.  At that moment, Clinton lost our trust, and should have resigned.  Instead, he lumbered on, the lamest of lame ducks.  As a result, he gave the Republican Party the moral high ground in the Election of 2000 – and denied Al Gore the opportunity to spend two years as President, consolidating his position for that supremely important contest.

American liberals are wont to blame Ralph Nader for George W. Bush’s unfortunate election in 2000.  They should consider the role played by Bill and Hillary Clinton, whose decision to hold on to office – almost certainly part of the master plan now playing out – put family ahead of party, principle and country.

For this, many – including this writer – will never forgive them.

Hillary Clinton’s recent campaign for the Democratic nomination has demonstrated – if further proof were needed – the determination of the Clintons to wield power.  The ruthlessness with which they crushed the popular – and genuinely progressive – Sanders movement provides further evidence, if any is needed, that in their minds, the Clintons come first – before party, principle, and country.

Between Trump and Clinton, Americans have a choice of two personalities – one who looks very much like the Devil of our imaginations – the other whose husband looks a great deal more like the Devil (if he exists) would choose to look, and who herself bears all the signs of a Faustus.

But this is merely the personal choice – and choosing a president involves much more than personalities.  Presidents do not govern alone, and – for all the hyperventilation on the Left about potential dictators – they cannot do whatever they choose.

We have a Constitution, and the legal restraints imposed by that document’s checks and balances are bolstered by two centuries’ worth of precedents and a massive, unofficial power structure which is, for the present, controlled by the wealth of large corporations and super-rich individuals.

The real choice, this year, is not whether Clinton or Trump will “run the country” – but whether a corrupt establishment will continue to do so under the cover of a Democratic or Republican administration.  In many ways, that is no choice at all, since both parties are wholly-owned subsidiaries of the international corporate class.

In other words, there is no real choice at all.  Whether Mr. Trump or Mrs. Clinton wins, real power will remain where it has long rested – in the hands of a corporate kleptocracy.

There is, however, the real possibility that this election will call into being a genuine political revolution of some kind.  Two significant third-party candidates, Gary Johnson and Jill Stein, offer mainstream Republicans and angry Sanders supporters a valid option for expressing their discontent.

But they do more.  By actively campaigning for these two candidates, unhappy citizens – especially those blessed with youth, energy and idealism – have the chance to come together, work together, and begin to organize for the future.

Though it is all but impossible that 2016 could see the election of a third-party candidate, should either or both of the Johnson and Stein campaigns attract significant grassroots support, this could be the year that a genuine political uprising begins the work of over-turning the entrenched establishment.

This, to me, seems to be the ultimate question of 2016.  In a sense, the winning candidate will almost certainly represent continuity – continued Democratic and Republican obeisance to the power of corporate capital, no matter who wins, and continued Republican migration toward the incoherence of right-wing populism, should be winner be Mr. Trump.

But the possibility of that meaningful alternatives could arise – supported by significant numbers of motivated people – marks a potential departure from the dead hand which has gripped the Republic for the past thirty-six years.

Those are the stakes.  Faites vos jeux!

Because He Could Win

The Republicans have made such a thorough hash of things thus far in 2016, it’s almost certainly too late for them to save themselves from the disaster of having Donald Trump as their standard-bearer. 

Or from the long-term damage he will do to their party if he loses.

But it isn’t too late for the once-Grand Old Party to save itself, and the country, from the worst that could happen should Mr. Trump win.

It only requires that the Republican leadership remember two things:

First, nowhere is it written that a Presidential nominee has a right to designate his vice-presidential running-mate.  It’s a tradition, yes.  But only that.

Second, the Vice-President of the United States is a constitutional officer, elected to office for a term of four years.  He can be impeached, but he can’t be fired.  The President can give him orders, but the Vice-President is free to ignore them.  The idea that the Vice-President works for the President is also a tradition, but only that.

If I were among the grandees of the Republican Party, I would gather my fellow grandees and give them a little history lesson – probably starting with Aaron Burr, Thomas Jefferson’s independent-minded Vice-President.

Then I’d invite them to help me devise a plan whereby the Republican National Convention nominated a genuinely solid, responsible, presidential individual to be Mr. Trump’s running-mate.

Not to help him win.  He’s on his own for that.  But to offer the Party – and the American people – a sort of guarantee.  If the unimaginable happens, and Mr. Trump becomes President, his constitutional successor would be someone in whom the country – and the party – could have complete confidence.

In other words, in November, the Party’s leaders would be able to sit down with a President-Elect Trump and let him know, in so many words, that he’d better conduct himself reasonably, legally, and constitutionally.

Give us one legitimate reason to impeach you, they could say, and we’ll do it.

In a New York minute.

If Mr. Trump is a reasonable man, he would probably take this warning seriously.  Indeed, he might decide to use his solid, responsible, presidential Vice-President to help him learn the ropes and govern effectively. 

If, on the other hand, Mr. Trump is what many Americans – including many Republicans – fear he might be, we’d have a way to get rid of him.  And he’d know that.

Now, imagine the Republican grandees arrive at this decision, move quickly and quietly, and put it into effect next week. 

They’d have to find a true patriot to take on the thankless job of being Mr. Trump’s potential Vice-President.  But there are such people.

Colin Powell.  Alan Simpson.  Mitt Romney.   You’ll think of others.

The nature of the assignment would be entirely non-traditional.  There wouldn’t be much of the usual “running-mate” stuff.  The grandees’ choice likely wouldn’t care to get too close to Mr. Trump during the campaign. 

But that’s not the important thing.  The important thing would only happen should Mr. Trump win.  In that case, he and his Vice-President-elect would have to carefully negotiate the nature of their relationship. 

Would the Vice-President be a trusted adviser?  A sort of nanny? 

Or the living embodiment of the Sword of Damocles?

At any rate, he or she would serve as a sort of national insurance policy. 

Having saddled us with Candidate Trump, that’s the least the Republicans can do for the country.

After all, he could win.

Lemmings

And so it begins.

The panicky scramble of the nice, well-intentioned, and feckless to get on board the Clinton bandwagon in time to…

To what, exactly?

Assuming you’re one of those people, please tell me.  To what end?

To save the country from Donald Trump?

Trump is disagreeable, absolutely.  Depending on your tastes, he might be the most disagreeable manifestation of political discontent since George Wallace.  Or Ross Perot.  Or Minnesota Governor Jesse Ventura.

But he’s not a danger to the Constitution.  Really.

The people who support him are.  Those angry, frightened, and largely under-educated voters – the Tea Party types – are the Trump people.  And they are scary.

And, whether Trump wins or loses in November, those people aren’t going away.  They’re our fellow citizens – the products of the system of public education for which both major parties are equally responsible.

The products of the pathetic level of public discourse made possible because our public media is controlled by huge, profit-driven corporations which understand that in-depth analysis and outside-the-box thinking don’t sell. 

Which includes NPR, since it started accepting big money from the likes of the Koch brothers.

But back to my point:  Donald Trump is a symptom, not the disease.

And if you’re going to choose a manifestation, thank your lucky stars it’s Trump – a narcissistic windbag who lacks the experience, connections, and people skills to find and create the enormous team he would need to manage the White House – much less the country. 

Ted Cruz would have been infinitely worse, because he understand how government works.

As for Trump, the man isn’t stupid.  Far from it.  But he lacks the ability to listen to others long enough to fill a Cabinet and all the other posts he’ll need to run the country.

And he lacks the intellectual subtlety to absorb and weigh all the considerations necessary to make dozens of decisions on a daily basis.

So he’ll have no choice but to staff it out.  Someone else will do the real job.  Someone will be his Chief of Staff – of his Chief of Staff’s assistant – and that Someone will decide whom to hire, and what decisions reach the President’s desk, and what information to give him about the issues about which he’s allowed to make a decision. 

That’s what happened when Reagan started going dotty.

That’s probably what happened, most of the time, when the irreflective George W. Bush thought he was being guided by divine revelation – and it turned out to be coming from Dick Cheney.  [Insert wry comment here.]

The bottom-line, here, is that a President Trump would likely be, from Day One, the prisoner of a staff selected by someone else.

And, sooner or later, that staff will likely consist of the same people who would be running the White House for any conservative, Republican President.

And that massive, West Wing and departmental bureaucracy – which has been proof against all but the most focused, determined modern Presidents – will simply outlast a lazy-minded blowhard like the Donald.

I confess, I have some trepidation about Trump having his finger on “the button”, but Nixon was talking to himself in his final months, and Reagan should have ended his second term in a memory-care ward.  Owning the power to destroy humanity comes with certain risks.  

Perhaps four years of a Trump presidency will persuade us it’s time to do something about that.

None of this, by the way, is to make the case for Donald Trump.  It’s absurd to think of that man sitting in the seat of Washington, Lincoln and the Roosevelts.

But then, it’s equally revolting to think of Hillary Clinton and her “first gentleman” re-occupying 1600 Pennsylvania Avenue.

Why?

I’m not going to waste anyone’s time with the usual litany of accusations.  I don’t believe most of them – though, to be perfectly honest, I rather suspect Secretary Clinton was selling influence to foreign countries, through the Clinton Foundation, while she was supposed to be working for us as at the State Department.

And if she wasn’t, she certainly made it look that way, which is nearly as bad.

My fundamental problem with Hillary is that she represents – in the clearest possible sense – the ways in which our entire political system, as represented by the two major parties – is corrupt to the core. 

I disagreed with Bernie Sanders on about 80% of his specific policies, but I supported him.  Bernie was right on the big question.  We need to cleanse the Augean stables.  And that’s going to take – not just a Hercules – but a movement.

Almost certainly, at some point, that movement will have to become at least one new party.

Probably three:  the Greens, the Libertarians, and an entity representing what used to be the center-left, or “civic” wing, of the Republican Party.

I’ll get around to that in future essays. 

For now, let me just say that if you are/were for Bernie over related issues such as campaign finance reform, corruption in government, Wall Street irresponsibility, and global climate change, etc., then there is absolutely no reason you should be voting for Hillary Clinton, who is basically the poster child for all the things Bernie ran against.

And saying, “she’s right on the other issues” is just silly.  Until these problems are addressed, and solved, there are no other issues. 

Supporting Hillary, instead of voting third-party or just not voting at all, is – in a very real sense – giving your personal approval to the status quo.  You can prattle away about “maturity” or “prudence” or “acting like a grown-up”, but that’s just an excuse.

The folks who won’t sell out and join Hillary aren’t acting like children, or throwing a tantrum.  They’re saying that no one election matters as much as the long term, and that perpetually surrendering – by voting for “the lesser of two evils” – only postpones the day when we begin doing something about that long term.

Put simply, voting for the “lesser of two evils” is still voting for an evil. 

And, if you get into bed with Hillary – after fighting her for so long – that just what you’ll be doing.

Original Intent (Extended and Revised)

One of the great problems with contemporary politics is that people no longer talk with anyone who doesn’t agree with them.

And why should we?  We now have our own news networks – FOX for those who call themselves “conservative”, NBC and NPR for those who call themselves “liberal” or “progressive”.  The internet continues to spawn the electronic equivalents of grocery-store tabloids - “news” outlets which will, in essence, tell you that your worst fears and imaginings pale in comparison with the latest revelations. 

Americans have long enjoyed the freedom to express their opinions.  Now, it seems, we have acquired the freedom to select our own facts.

All of which is bad enough.  But the worst of it is, simply, that because we don’t listen to each other, we have no idea how to persuade each other – even in those rare moments when persuasion becomes possible.

A classic example of this phenomenon is developing in the contest over President Obama’s nomination of DC Circuit Chief Merrick Garland to the Supreme Court. 

Even before Judge Garland’s nomination, Senate Republicans had unanimously announced their refusal to consider any appointment made by the current President, and their determination to wait until “the people” had chosen a new President.

The justifications the Republican Senators have offered are necessarily thin, since the Constitution makes no distinction between the powers of a newly-inaugurated President and one in his last day on the job.  Manifestly, “the people” elected Barack Obama to serve as their President until January 20, 2017 – and elected this Senate to perform its constitutional functions until its successors are sworn in a few weeks earlier.

One imagines what these Senators would say if Mr. Obama decided to spend the next ten months working on his golf handicap, rather than attending to matters of state.  By the Senators’ reasoning, he would certainly be justified in doing so.

But what must truly sting is that the Senators have rather boxed themselves in.   Public opinion is running almost 2-to-1 against their position, which is a problem when their 54-vote majority is very much in jeopardy.

Fully 24 of the 34 Senate seats up for election this November are held by Republicans, and six Republican incumbents are considered particularly vulnerable.  It would not take much to produce a new Senate with a slight, but workable, Democratic majority.

If a Democrat prevails in November’s Presidential election, this could assure either the quick approval of Judge Garland, or the appointment of a more reliably liberal, and much younger, Justice by Mr. Obama's successor.

Moreover, the Republicans’ unpopular stance over the Garland nomination – which daily brings into fresh relief their seven-year-long record of legislative recalcitrance – makes it considerably more likely that the Democratic Party will hold onto the White House.

But the Senators’ problem runs deeper.  The Republican Party seems likely to nominate the mercurial Donald Trump, and there is absolutely no predicting whom a President Trump – a narcissistic populist with no discernible political philosophy – might nominate for the bench.

All in all, Republican Senators must surely, by now, have realized that they have painted themselves into a particularly sticky corner – and be wondering how they might extract themselves from it.

This seems a time when Democrats, liberals, progressives, and what-have-you might want to offer their opponents a lifeline.  Surely, at least a handful of Republican Senators would appreciate any honorable excuse to back down from their precipitous and ill-advised position. 

And a handful would be enough.

But of course, in a nation which refuses to expect serious bilingualism from its public schools and universities, it’s hardly surprising that those on the Left don’t “speak conservative”. 

Or even appreciate the difference between the handful of Republican Senators who are genuinely conservative, and those who simply use that honorable term to cloak an irrational mashup of bigotry, ignorance, superstition, greed and anti-intellectualism. 

Which is to say that the present approach of the Left gets it all wrong.  To denounce this Senate for obstructionism is merely to reiterate the obvious.  To threaten it with liberal disapproval will only stiffen the spines of reluctant Senators.

But what if the President and his supporters tried a different approach on these Senators?  What if they, in the words of a great American conservative, appealed to “the better angels of their natures”?

  

While most of today’s so-called “conservatives” are anything but, there are still Republicans – including a few Senators – who revere the shades of such conservative giants as Edmund Burke and Alexander Hamilton.

True conservatives might be persuaded by a genuinely conservative argument – such as an appeal to the established constitutional practice and clear “original intent” of the Founders of the Republic.

On the question of filling judicial vacancies, the Founders are very much on record.  While most Founders were still alive and active, President John Adams – who had been defeated for re-election by Thomas Jefferson and Aaron Burr – appointed his Secretary of State, John Marshall, to serve as Chief Justice of the Supreme Court.

Marshall was appointed on January 20, 1801 – just six weeks before Adams’ “lame duck” presidency was due to expire.  A “lame duck” Senate confirmed Marshall one week later.

Thus, the greatest and most consequential judicial appointment in American history took place at the tail end of a presidency repudiated by the American people.  Chief Justice Marshall officially assumed his duties on March 4 – the day on which Thomas Jefferson was sworn in as Adams’ successor.  Jefferson served for eight years, Marshall for 34.

During those years, Marshall powerfully established the role of the Court as the final arbiter of constitutional issues - the court of last resort when the Constitution had to be interpreted.  If not for Marshall, no one would much care whom President Obama appointed to a not-so-Supreme Court.

But the point, again, is that Marshall's appointment came far later in Adams' term than Judge Garland's.  And, since both Marshall and Adams - and many of the Senators who confirmed the appointment - were members of the generations which fought the Revolution, wrote and ratified the Constitution, and otherwise founded the Republic.

John Adams, one of the committee which wrote the Declaration of Independence, has as good a claim to the title of “Founder” as anyone in our national history.  John Marshall, served honorably on General Washington’s staff during the Revolution.  Though a generation younger than Adams, he was clearly a member of the Founding elite.

Whoever eventually takes the open seat on the Supreme Court, he or she will be occupying the place of Justice Antonin Scalia, the Court’s pre-eminent conservative and chief exponent of the doctrine of “original intent” - the doctrine that we should be guided by the Founders' understanding of the Constitution, even today.

Ironically, the Founders’ “original intent” concerning filling Supreme Court vacancies can be summarized in precisely two words - “John Marshall”.

Republican Senators are ignoring this point, but can only continue to do so if those on the Left fail to make it, publicly and repeatedly.

Those who don’t speak conservative should keep that in mind, if their intent is to persuade a few Republican Senators and gain a hearing for Judge Garland before the end of the present administration. 

It's Not Hate, It's Revolution

Ardent supporters of Hillary Clinton are apt to take umbrage at the fact that many who back Bernie Sanders have expressed themselves as unwilling to vote for Secretary Clinton, should she be the nominee.

Clinton loyalists are entitled to their opinions, but their umbrage serves neither their cause nor their candidate.  While there are, without doubt, “Hillary haters” among Sanders’ ranks, I suspect they are rare.  To be sure, a great many Sanders supporters are angry at Secretary Clinton’s increasingly desperate, reality-free attacks on her opponent.  But many of Bernie’s most passionate fans will, no doubt, eat their words and support Hillary, should she win the nomination.

Clinton’s problem lies with those of us who do not hate her – but have no intention of voting for her in November, regardless of her opponent.  There are a lot of us – perhaps millions.  Enough to make it doubtful that Clinton will prevail in a general election against any Republican.

But again, this has less to do with personal animus that it does with long-term thinking, and a determination to continue to work toward a political “revolution” against the corrupt, effete, and dysfunctional system of which Mrs. Clinton is a long-established part.

In general, I find that those who are most supportive of Hillary – and most horrified at those who vow never to support her – tend to think and behave as loyal Democrats.  Their political world-view is circumscribed by the existing two-party system and the binary, left-right "political spectrum" so popular with high-school civics teachers and political science and journalistic types.

But not everyone shares this limited view of the world.

In my case, I see the existing system – not as a two-sided battle between the good guys and the bad guys – but as a duopoly in which the two established parties alternate power, while doing little or nothing to address the realities of the 21^st century.

It is in the interest of both parties to limit political discourse to a handful of issues about which Democrats and Republicans can agree to disagree, while being safely assured of roughly half of the votes of those Americans who still bother to participate.  In its present form, the duopoly assures the Republican Party of control of the House of Representatives – through its greater ability to turn out voters for down-ballot elections and consequent control of congressional district gerrymandering. 

The duopoly assures the Democratic Party of a small, but significant, advantage in the Electoral College.  Because Senate elections tend to go to the winning party in Presidential years, and the party out-of-power in “mid-term” elections, duopolistic control of that body shifts back and forth on a pendular basis.

In order to maintain this process, which assures both major parties of a regular share of power, both Democrats and Republicans rely on the politics of fear – routinely alarming their voting “bases” at the prospect of the other party winning the next election.  In such a system, there is little reason to risk advocating – much less pressing – measures which offer real change.  Safer, by far, to focus on the dangerous things the opposition might choose to do.

Such a system, of course, is entirely meaningless to those whose interests are not part of the regular menu of “issues” served up by the duopoly.  In today’s terms, global climate change – which, in any rational republic, would be among the most pressing issues in every campaign – is seldom mentioned by any candidate other than the “revolutionary” Bernie Sanders.  Since both major parties depend upon the support of fossil-fuel and automobile manufacturers (to say nothing of road-builders and suburban developers), global climate change is given short shrift.

Climate change is but one, pressing example of issues which have no standing in the present duopoly.  When there are only two sides to the political dialogue, alternate ways of constructing political reality are simply not allowed for. There is no forum in which to suggest alternate menus of issues, or alternate ways of looking at the world.

From this perspective, an election between yet another conservative Republican and another moderately liberal, “third way”, Democrat offers no real choice at all. For those who want a meaningful revolution – one which reduces the impact of big money and opens the door to new political parties – there is little reason to prefer one party or candidate over the other.

In 2016, an election between Hillary Clinton and any of the current Republican candidates, offers no possibility of such change.  Thus, it becomes – in terms of those not locked into the two-party world-view – a dreary, but thoroughly unimportant, event.

Put another way, if your goal is to disrupt the present system, the basic goal is to disrupt the present campaign finance system, the system of gerrymandering, and – most important – the two-party duopoly.  An election which offers no possibility of disrupting the present duopoly is, simply, no big deal.   

In 2016 – owing to the campaigns of Donald Trump and Bernie Sanders – both major parties seem unusually vulnerable to disruption.  For most young voters – and a few old progressives like me – the Democrats seem the more vulnerable target.

If Bernie Sanders is the Democratic candidate – and the winner in November – there would be a window of opportunity for radically reforming the party from within.  If Hillary Clinton is the nominee, and wins, there will be no such opportunity. 

For that reason, none of Secretary Clinton’s past achievements or personal qualities outweighs the fact that she represents the continuation of a defunct political system.  I don’t hate her.  But I won’t be voting for her.

I hope many others, who are serious about change, will make the same choice.

Stopping Trump

What follows is not a desperate plea for the nation to come to its senses, nor is it a fanciful plan by which the Republican “establishment” suddenly discovers a competence and sense of purpose it has long since frittered away.

This is a plan by which a relative handful of purposeful Americans, and one genuine leader, could prevent Donald Trump from becoming President.

In offering this plan, I make certain assumptions.

First, though I am very much for Bernie Sanders, I assume that the Democratic Party’s coalition of demographic groups will succeed in making Hillary Clinton their nominee.

Second, I assume that Donald Trump will continue to ride his present wave of popularity to the Republican nomination, and that this will become mathematically inevitable within the next month or six weeks.

Third, I assume that – in this anti-establishment year – there is every prospect that Donald Trump would defeat Hillary Clinton in an election in which millions of Americans ended up voting for third-party candidates, or no one at all.

Fourth, I assume that – given something like the usual Electoral math – the electoral vote between Mrs. Clinton and Mr. Trump would be close.

An election contest between Donald Trump and Hillary Clinton has been well described as “the election nobody wants”.  In truth, a significant number of Americans do want one or the other of these two, deeply-flawed candidates.  But it’s safe to say that, whichever of them won, a significant majority of Americans would be unhappy with that winner.

Given those four assumptions, there is certainly room for a hasty, third-party or independent challenger to appear. 

The problem is that third-party challenges – even those which begin a year or more before Election Day – generally lack the funds, organization, expertise, name-recognition, and press coverage available to major-party nominees.

The sheer task of mounting a fifty-state (plus DC) challenge has, again and again, proved overwhelming.

Basically, it can’t be done.

Moreover, there is a natural resistance to third-party challengers.  A challenger from the right, or from the populist “angry America” will – like Ross Perot in 1992 – tend to split the Republican vote, electing a Democrat.  A challenger from the left, or from the environmentalist “greens”, will – like Ralph Nader in 2000 – tend to split the liberal/progressive vote, electing a Republican.

Knowing this, most Americans are reluctant to countenance a nationwide, third-party challenge from their own end of the political spectrum.

But suppose the third-party challenge were not nationwide?

Suppose it were organized to contest only a handful of states, in which the third-party candidate had a realistic chance of winning?

A focused, third-party challenge, limited to a few states, could concentrate all the money, expertise, energy and passion of that challenge in a small area while the major-party candidates were, necessarily, waging nationwide campaigns.

Managed with care, a third-party challenge – limited to a handful of states – could result in neither of the major-party candidates winning a majority of the Electoral College.

In which case, under our Constitution, the choice of America’s next President would fall to the House of Representatives – with the three candidates winning the most Electoral votes as the finalists.  In that election, each state would have one vote, regardless of the size of its delegation.

Those are the rules.

Now, imagine this scenario:  An attractive, competent, challenger decides to enter the Presidential race, running in only two or three carefully-chosen states.  Focusing all of his or her resources on those states, the third-party challenger pulls it off - gaining sufficient Electoral votes to prevent either major-party candidate from winning a majority of the Electoral College.

The choice then goes to the House, voting by states.  And the challenger, with only a handful of Electoral votes, would have an equal chance of gaining the necessary 26 votes for election.

Now, given the political realities of the moment, the next House of Representatives will almost certainly be Republican.  More importantly, it will almost certainly contain a majority of state delegations with Republican majorities. 

And it’s difficult to imagine a Republican House electing a Democratic challenger – even at the cost of electing Donald Trump.

So this year, to pull this off, the challenger would have to be a Republican.

But it could be a sane, competent, respected Republican - someone most Americans would agree was preferable to Donald Trump. 

Suppose, for example, the challenger were Speaker Paul Ryan – Mitt Romney’s vice-presidential running-mate in 2012.  Speaker Ryan is far too conservative for my tastes, but he’s certainly capable, intelligent and experienced.  I’d vastly prefer him to Donald Trump.

Suppose Mr. Ryan ran for President in his home state – Wisconsin – which has ten electoral votes.  That might do it.

To be safe, suppose he also ran in a neighboring state – say, Minnesota.  And a heavily-Republican state such as Utah or Indiana, where his candidacy wouldn't be likely to tip the state to Mrs. Clinton.

And suppose he won enough Electoral votes to throw the election into the House.

He’s the Speaker.  And he’s not Donald Trump. 

Mr. Ryan would almost certainly be our 45^th President.

And I, for one, would be greatly relieved.

Original Intent

Antonin Scalia, lately departed Associate Justice of the Supreme Court, will likely be best-remembered for his advocacy of the “doctrine of original intent”.  Under this doctrine, Justice Scalia asserted that modern Americans should be guided by the ideas of the Founding Fathers, as revealed in the precise words of the Constitution of 1789 (as amended).

I mostly agree.  Where I differ with Justice Scalia is in his belief that the Founders – most of whom had legal training and/or significant judicial or legislative experience – would have drawn up the Constitution without reference to the tradition of the English Common Law, under which judges had, for many centuries, “found” new law by applying existing laws to new situations.

 

But that’s an argument for another time.

Today, I want to note that the Republican leadership of the United States Senate, and particularly, the eight Republican Senators on the Judiciary Committee, have announced that they will not consider any nominee to replace Justice Scalia offered by President Obama.

And I’d like to suggest the application of the logic of “original intent”, as enunciated by Justice Scalia, to their refusal.

Now, let’s be clear about this.  There is absolutely nothing in the Constitution which suggests that a President in his last year in office cannot nominate a Justice to the Supreme Court.  

While most of the Founders were still very much alive, President John Adams – who had been defeated for re-election by Thomas Jefferson (and Aaron Burr) – appointed his Secretary of State, John Marshall, to serve as Chief Justice of the Supreme Court.   This appointment is generally considered the best, and most consequential, judicial appointment in American history.

Adams appointed Marshall on January 20, 1801 – months after he had been defeated for re-election and just six weeks before his “lame duck” presidency was due to expire.  The “lame duck” Senate confirmed Marshall one week later, and Marshall officially assumed his duties on March 4 – the day on which his cousin, Thomas Jefferson, was sworn in as Adams’ successor.

So let’s not kid ourselves.  If the Founders had anything like an “original intent” about late-term presidents not appointing justices, no one told John Adams - or John Marshall, for that matter.

But let’s go a step further and discuss the Senate leadership’s refusal to consider any nominee Mr. Obama names. 

Not consider, and then reject that nominee. 

Refuse to consider him.

I’d like to suggest that you take a break here and find a copy of the Declaration of Independence – the original expression of the Founders’ “original intent”.  

Read it carefully.  Not just the familiar parts at the beginning and end, but the long list of grievances which the Founders believed justified them in taking up arms against King George III.

Note the first three grievances, which accuse King George of failing to do his job, by refusing to pass necessary laws, and by interfering with the ability of colonial governments to pass necessary laws.

Note the sixth grievance, complaining of the King’s refusal to permit the elections of colonial legislatures, thus making it impossible for the colonies do necessary legislative work.

Pretty clearly, our nation’s Founders thought a ruler who refused to do his job had forfeited his right to govern, and justified them in rebelling against him.  Four of their first six grievances concerned precisely this – the royal neglect of duty.

Now, ask yourself this:  What do you suppose the Founders would have said about a handful of legislators who announced their refusal to do their job – for the next eleven months – thus leaving the highest court in the land understaffed?

I suggest that, in terms of their “original intent”, the Founders would have considered that the American people are entirely justified in removing those legislators from office.

And since there is no legal mechanism for doing so, I suggest that the Founders would have considered us justified in exercising what they called the "right of rebellion", i.e., removing them by extralegal means.

If necessary.

In the years leading up to the American Revolution, Patriot activists in Boston and other cities often expressed their displeasure with oppressive Royal officers by tarring and feathering them, then riding them out of town on a fence rail.

If the Senate Republican leadership continues to refuse to do its job – by considering President Obama’s forthcoming nominee to replace Justice Scalia – perhaps we should take a page from the late Justice’s book.

Apply the Founder’s “original intent”.

With a bucket of tar and a brush.