Magazine | December 19, 2016, Issue

Litigating Politics

Demonstrating against the president-elect in Philadelphia, November 19, 2016 (Mark Makela/Getty)
The Democrats deploy a cynical weapon

The Democrats suffer from two tactical deficiencies. The first is that when they win, they act like they’ll never lose again; the second is that when they lose, they act like they’ll never win again. The Democrats have just lost a big one — the presidency — but both tendencies are of immediate interest.

One of the less rewarding chores assigned to conservative polemicists — a job that ought to be done by fair-minded political reporters of all persuasions — is cataloguing the endless array of double standards, ordinary hypocrisy, and heads-I-win/tails-you-lose conundrums cultivated by Democratic political operatives and their allies in the news media. This year produced a bumper crop of the stuff, much of it involving Democrats’ demand that Donald J. Trump more or less preemptively concede his loss of the presidential election to Hillary Rodham Clinton. Failure to do so — to even suggest that he might through litigation or other legal means contest the results of the election — constituted an assault upon the legitimacy of the U.S. government itself, Clinton and her allies insisted. This was tantamount to an act of war, they said, and possibly a prelude to treason: They were sure that a losing Trump would take to Twitter to inspire a coup attempt.

The progressives of course proceeded to commit every crime on their pre-cog indictment of Trump: violent protests complete with assaults, arson, racism, and extremist rhetoric of sundry daffy sorts — an anti-bullying advocate was even arrested for assaulting an elderly man at an anti-Trump protest in New York; litigation based on the flimsiest pretexts, or no pretext at all; the “normalization” of these tactics through the efforts of such purportedly respectable mainstream Democratic figures as Paul Krugman of the New York Times, who channeled Trump himself with his argument that we should investigate wild-eyed electoral-fraud conspiracy theories that have no evidence to support them simply because “it’s out there.” (Who put it out there, Professor Krugman?)

The culminating tactic is to demand a recount.

When the Democrats won a majority in the Senate and began acting in the belief that they’d never lose it, they weakened the filibuster, a traditional protection of minority rights in our less democratic legislative house. Now, they are desperately clinging to what is left of it. Acting on a belief that the Mandate of Heaven would pass uninterrupted from Barack Obama to Hillary Rodham Clinton — a barely competent party hack they insisted was the most qualified candidate ever to seek the position of commander-in-chief, George Washington and Dwight Eisenhower notwithstanding — they waged a full-on assault on the democratic legislative process itself, seeking to consolidate power in the person of a president who would rule, like Charles de Gaulle in his later dictatorial phase, by executive fiat, from its recently blocked overtime rules to making an end run around Congress on network security. They are naked judicial activists when it comes to courts where their fellow partisans predominate and absolutely deferential to precedent when the precedent was written by their fellow partisans.

But if they have mixed views on judicial precedent, they seem to pay no attention at all to political precedent.

What is happening between the election of Donald Trump and his scheduled inauguration is, to borrow the progressive phrase of the moment, not normal. Progressive fantasists imagine some sort of “Twelve Angry Men” debate within the Electoral College, at the end of which all the right-thinking (which is to say, left-thinking) electors band together and bravely confer the presidency upon Hillary Rodham Clinton. In reality that is unlikely to happen. The law here is relatively straightforward, and even if a “faithless elector” coup were attempted, it almost certainly would not withstand the inevitable legal challenge, since many state laws simply void such votes. Other states add civil and criminal penalties to the mix.

But overturning the election results is not the point of all this. The point is to cost Republicans time and energy, to raise money for Democrats, to cultivate the terror and anxiety that are the Democrats’ most effective fundraising tools, and to begin undermining the Trump administration before it has taken office. Just as the phony indictments of Republican political figures such as Tom DeLay, Kay Bailey Hutchison, and Rick Perry were never intended to produce convictions, and just as the ludicrous fraud case brought by various Democratic state attorneys general against ExxonMobil wasn’t intended to rectify the injustices of any actual fraud, the Democrats’ recount effort isn’t intended to achieve anything more than the use of process as punishment.

It is not difficult to imagine how Democrats would react if the tables were turned. After Barack Obama won the presidency, Republicans held a publicly announced meeting the subject of which was — shocking as this may seem — how to beat the president politically. Conservative radio host Rush Limbaugh, arguing that Obama intended to do things that would be bad for the country, said he hoped Obama failed. This was ordinary politics, elected officials and activists of one party working to defeat and outmaneuver elected officials and activists of the other party — democracy, in short.

But the Democratic party does not approve of that sort of democracy. Republicans were accused not only of political obstruction but of lack of patriotism, sedition, and treason. Democratic pundit Chris Matthews said that Republican attempts to frustrate President Obama’s outreach to the terrorist regime in Tehran were “seditious.” More than 165,000 people signed a petition calling for congressional Republicans to be charged with treason for fighting the president on what was, after all, a legal as well as a political question. Serious discussion was given to charging Republican leaders with crimes under the Logan Act, which forbids the conduct of freelance foreign policy.

If Trump had lost and there were bloody riots in Provo, there would be calls to have the DOJ designate the Republican party a terrorist organization.

When Trump was complaining about rigged elections and suggesting he might not accept the results, a CNN analyst called this “unprecedented” (it wasn’t) and lamented that Trump was attacking “the legitimacy of the electoral process.” The New York Times fretted (on its news pages, not in an opinion piece) that Trump had “cast doubt on American democracy.” Mrs. Clinton claimed that Trump was “threatening our democracy” and called his statement “horrifying.” That position held true until about 15 minutes after Pennsylvania was called for Trump. Now the Left, acting in a truly cowardly fashion through the campaign of Green-party candidate Jill Stein, is seeking recounts in Pennsylvania, Michigan, and Wisconsin — states in which there is neither evidence of election-tampering nor any serious and credible accusation of it. (As of this writing, only Wisconsin has committed to conduct a recount.)

Mrs. Clinton’s campaign is, in the habitual Clintonian fashion, attempting to play it both ways. Her general counsel, Marc Elias, says that the campaign does not expect the recounts to change the outcome but will remain a legal party to litigation supporting them.

The Clinton campaign here is being half-honest: This isn’t about changing the election. It is about using the electoral system as a weapon of bare-knuckles politics, just as the Democrats have done with everything from the Senate-confirmation process to the National Labor Relations Board. Lyndon Johnson, the “master of the Senate,” never imagined that Republicans would evolve a more effective and disciplined legislative caucus than that of the Democrats, and that they would deploy it as well as they have both in power and in opposition. When Senator Ted Kennedy launched the modern era of Senate judicial politics with his infamous “Robert Bork’s America” speech, he did not imagine that Republicans one day would be able to stop a Democratic Supreme Court nomination simply by refusing to hear it and running out the clock on a lame-duck president. When Barack Obama turned up the presidential nose at Congress and declared his pen and his phone a super-legislature, he gave scant consideration to the fact that his successor would also be endowed with a pen and a phone.

The Democrats should pay some heed to the good news: They will, almost certainly, win the presidency again someday. They should also consider that Republicans have gotten awfully good at wielding the political weapons forged by Democrats, from the judicial ambush to the reconciliation bill. The Democrats should really think twice about whether they want to make post-election legal fights an ordinary part of U.S. presidential politics — not least because, unlike Republicans, they’ve never actually won one.

In This Issue



Books, Arts & Manners


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