Quote of the Day (John Adams, on the U.S. vs. ‘Artifice, Imposture, Hypocrisy, and Superstition’)

“The multitude have always been credulous, and the few are always artful. The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event [the creation of the U.S.] as an era in their history.”—John Adams (1735-1826), signer of the Declaration of Independence and second U.S. President, “A Defence of the Constitutions of the United States of America” (1778), in The Works of John Adams, Vol. 4 (Novanglus, Thoughts on Government, Defence of the Constitution) [1851]

From his extensive study of law and the classics, John Adams was well aware of the dangers posed to self-government. But it was his hope—at least in the American Revolution—that “The people were universally too enlightened to be imposed on by artifice; and their leaders, or more properly followers, were men of too much honor to attempt it.”

And it was his belief that education and reason would minimize the corruption and misrule he saw all across Europe—even in the England that once commanded his steadfast loyalty.

Unfortunately, the events of the last week have called his optimism into question, because it is more manifestly apparent than ever that an American President and the party on bended knee before him do not have an even elementary concept of “honor.”

They have weaponized the authority of the Oval Office and the dangers of social media in its Wild West stage to exploit the faith of half the American republic—and defy the 220-year tradition of an orderly, peaceful transfer of power between Presidents of opposite parties.

It should be no surprise that Donald Trump, having predicted that the 2016 election would be “rigged” weeks before it even took place, would repeat his claim this year, especially when the results were more or less reversed.

But by this time, I had expected that Republican leaders on Capitol Hill, exhausted by the 24/7 tide of insults, bullying, untruths and chaos that they have had to endure the past four years, would edge away from Trump’s desperate effort to hold onto the Presidency at all costs by refusing to concede to Joe Biden.

Shame on me. After their craven capitulation to him during the impeachment proceedings this past winter, I should have known better. And I should have known, contrary to their assurances then that it was up to the American people, not their lawmakers, to remove the President from office, that in the crunch they would accept no such outcome.

In acquiescing to Trump by refusing to publicly accept the collective decision of the electorate, they countenanced with a straight face the notion that nationwide results that stymied an expected “blue wave” against GOP congressmen, senators and local officials had then magically been jiggered to work against the president.

It was disheartening, especially in the Senate, to see officeholders historically jealous of their privilege and power act with a supine subservience unmatched by counterparts in the decadent Roman Empire.

It was astonishing to witness politicians who once couldn’t wait to rush to a TV camera or microphone walk now with heads bent firmly down, deaf even to shouted questions from reporters wanting their reaction to the latest Presidential outrage.

It was infuriating to hear Senate Majority Leader Mitch McConnell state, in the absence of any credible evidence, that President Trump was “100 percent within his legal rights” to pursue his multi-state lawsuits over spurious voter fraud.

But it was downright nauseating to hear him claim, with a straight face: “Let’s not have any lectures, no lectures about how the president should immediately, cheerfully accept preliminary election results from the same characters who just spent four years refusing to accept the validity of the last election.”

Let it be stated, as it appears that the GOP leader on Capitol Hill has suffered a conveniently catastrophic memory loss, that Hillary Clinton called to congratulate Trump the night of the 2016 election and formally conceded before her supporters the next morning.

And it is disgraceful, whatever his motives, that McConnell allows Trump to continue to launch baseless accusations that undermine the legitimacy of the republic for which Adams and the other signers of the Declaration of Independence pledged “their lives, their fortunes and their sacred honor.”

Trump supporters must now reckon with the fact that he is more than simply a crybaby, a sore loser, or an aging, petulant poseur who must be humored for just a little while longer.

Something else is suggested by these events of the past 48 hours: McConnell’s spineless Senate speech, Secretary of State Mike Pompeo’s smug assurance of a transition to a second Trump term, Bill Barr’s authorization of investigations into chimerical massive voter fraud, and especially the removal or resignations in protest of Defense Secretary Mark Esper and the heads of three other agencies at the National Security Agency and the Pentagon.

Trump supporters, do you realize that the President is orchestrating an accelerating coup attempt? Do you understand that he is mobilizing the “artifice, imposture, hypocrisy, and superstition” that Adams assailed? Do you recognize what this means for the survival of the republic you profess to love?

Quote of the Day (Judge Learned Hand, on Courts, Partisanship, and the ‘Spirit of Moderation’)

“This much I think I do know: that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens—real and not the factitious product of propaganda—which recognizes their common fate and their common aspirations—in a word, which has faith in the sacredness of the individual."—American Judge Learned Hand (1872-1961), “The Contribution of an Independent Judiciary to Civilization” (1942), reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand (1952)

Judge Learned Hand, a federal district and appellate judge for more than fifty years, wrote this from a lifetime of experience, but especially with the 1930s in mind, when the Supreme Court’s conservative majority ruled against one New Deal piece of legislation after another, provoking Franklin Roosevelt’s furious “court-packing” attempt in 1937.

It is certainly true, as both Republicans and Democrats have said at one time or another, that “elections have consequences.” But we now face the greatest threat to the politicization of the courts—and a threat to their independence—since the New Deal.

Of the three branches of the federal government, the Founding Fathers devoted the least attention to the judiciary in the Constitution. It has evolved in ways the framers could never have conceived—notably, in the amount of time that justices, enjoying longer life spans and (as Stuart Taylor Jr. and Benjamin Wittes argued in a 2006 Atlantic Monthly article) law clerks who save them the grind of drafting opinions, now serve on the Supreme Court.

For at least three decades, Senate confirmation hearings have been partisan battles. Until the last couple of years, however, the slenderest sense of restraint—the mutual courtesy among Senators, Presidents’ political antenna for recording and responding appropriately to disturbances in both Capitol Hill and the electorate—has existed.

In a media and political environment riven by the propaganda feared by Hand, that fig leaf has now been swept away. Democrats left themselves open to charges of smearing a nominee by not raising accusations of sexual assault against Brett Kavanaugh until late in the confirmation process.

Worse, Mitch McConnell has successfully rushed the nomination of Amy Coney Barrett to the Supreme Court, in brazen violation of his own rationale four years before for blocking the nomination of Merrick Garland: i.e., that the Senate should not fill a court vacancy in an election year before a new President is inaugurated.

With his smashmouth maneuvering and bizarre sense of priorities (lightning speed on the confirmation, dawdling on COVID-19 relief), the Senate Majority Leader has shown a mastery of parliamentary procedure but a disregard for organizational civility—making him an ideal legislative henchman for a President similarly disinclined towards respecting norms.

McConnell may have placated a party base desiring a dominant right-wing majority on the Supreme Court for decades, but it may be a Pyrrhic victory. Even as Barrett starts her service, he has laid on the back of this respected jurist misgivings about her allegiance to Trump that will cling to her as long as the President stays in office, and apprehension about her background and partisanship that will remain for as long as she remains a justice.

More important, the hypocrisy of McConnell and President Trump has been rank enough to precipitate a grave upping of the ante. Joe Biden now faces enormous pressure from his party base to undo the damage caused by McConnell’s shameless maneuvering by resorting to FDR’s proposal of increasing the court’s size. Even if the Democratic Presidential nominee decides not to seize this expedient, he will have to figure how to proceed if elected in dealing with a court heavily tilted against any of his initiatives.

With both the legislative and executive branches determined to, as Judge Hand put it, “press a partisan advantage to its bitter end,” it may be left to the judiciary to behave responsibly.

In the past, Chief Justices such as John Marshall and Charles Evans Hughes realized exactly how far they could go without endangering the Supreme Court’s reputation for impartiality. There are occasional, flickering signs that John Roberts wishes to operate in the same way.

But these are thin reeds for current observers of the court to grasp. Despite the longtime belief that the Constitution exhibited a farsighted skepticism about imperfect legislators, Presidents and judges in the new nation, the Barrett imbroglio shows that the Founding Fathers may in fact have been too trusting in this group’s ability to rise above petty partisan advantage. What hope for the genius of the system to prevail when its main actors lack wisdom, courage, and these days, even Hand’s understanding and respect for the other side?

Quote of the Day (Henry Clay, Telling Off a Boring Congressman)

“It seems you are resolved to speak until your audience arrives.”—Henry Clay, responding to a fellow member of Congress, speaking interminably in debate, who had just told him, “You, sir, speak for the present generation, but I speak for posterity,” quoted in Samuel A. Bent, comp., Familiar Short Sayings of Great Men (1887).

It pains me to write this, because I don’t think much of the man, but I was inspired to use this quote while listening to a portion of an address given by Senator Mitch McConnell on his great predecessor from Kentucky, Henry Clay (1777-1852). McConnell couldn’t, in his wildest dreams, match Clay for intellect, charm, and most of all, the willingness (let alone ability) to forge compromises on the nation’s most divisive issues.

But let’s give the Senate Minority Leader credit where it’s due—he knows a good example of rapier wit when he hears one, not to mention one of the most consequential politicians never to reach the White House. (Clay was, however, the hero of a man who did become President: Abraham Lincoln.)

(In the image here, Clay is addressing the U.S. Senate around 1850, toward the end of his career, with the other two members of the “Great Triumvirate” also here—Daniel Webster, seated to his left, and John C. Calhoun, seated to the left of the Speaker’s chair. The image, now in the Library of Congress, was drawn in 1855 by Peter F. Rothermel and engraved by Robert Whitechurch.)