The-Ave.US

This article is a liberal op-ed.

These are my own ideas, and this is a first draft, so it’s bound to be incomplete and may contain some errors. I can edit my postings on this blog, and frequently do, so the contents of my essays can (and often do) evolve over time.

This essay assumes Biden wins, Democrats win the Senate, and they expand the Supreme Court, if necessary, to prevent a conservative-packed court from obstructing their legislative agenda.

Outlaw Republican anti-voting practices. Securing our elections should be a top priority. The aim isn’t to give Democrats an unfair advantage in elections, but to put an end to Republican gaming of elections. Their voter suppression tactics are a key target, but not the only target. Legislating at the federal level isn’t about federal intrusion into state and local elections; Congress has the right to regulate how elections for federal offices are conducted. There should be mandatory and enforceable national standards for voter registration, voter IDs, numbers and locations of polling places, voting equipment, early voting, and mail voting, with federal grant money to states to implement these measures. Election Day should be moved to the first Sunday in November and made a national holiday. Congress should require the Postal Service to prioritize election mail, provide free postage on ballots, and provide dedicated funding to the USPS for handling election mail.

Enact a new Voting Rights Act. A key objective is restoring the protections gutted by the Supreme Court, not necessarily in the same way; the results, not the means, should be the legislative goal. The terms of the now-expired 1981 consent decree should be enacted as a federal statute.

Pass the House version of Covid-19 relief. There’s no chance the Covid-19 crisis will be over and the economy will recover by January 2021. Biden will inherit a country still in crisis. The initial Covid-19 relief bill passed in March 2020 staved off a much worse economic disaster, but those still unemployed, small businesses, state and local governments, and schools need more help. The House bill is the best template we have for the nation’s continuing emergency relief needs, but the situation is fluid, and the bill should be tweaked as needed to deal with the evolving situation.

Repeal the Bush and Trump tax cuts for the rich. Republicans rant about deficits. Let’s hold them to their word and do something about the burgeoning deficits. Economists argue over the importance and effect of deficits, but I’m in the camp that believes they can’t do any good and could do harm, so let’s do what we can to reduce deficits. Here’s where I break with progressives and other Democrats who would like to repeal the Republican tax cuts and spend the money on a wish list of new programs; I think the money should go to deficit reduction.

Pass immigration reform. Clean up ICE’s practices. Enact a detainee bill of rights. Ban family separations. Provide due process to asylum seekers, and clarify and rationalize standards for granting asylum. Enact a more rational system of immigration quotas, lower immigration barriers, and liberalize immigration (we need the workers). Grant citizenship to DACAs, with exceptions for serious crimes. Provide a path to citizenship for law-abiding illegals. Provide automatic citizenship to immigrants who honorably serve in our military forces. I’m not against providing a means and process to revoke naturalized citizenship for those who commit serious crimes. Put to rest native-born citizenship arguments.

Enact comprehensive police reform. America has over 18,000 law enforcement agencies. With police management so fragmented, it’s impossible to effectuate needed reforms on a local, agency-by-agency, piecemeal basis. We need national standards and regulation of police practices. There should be national-level standards of training and best practices, federal databases of police use of deadly force and police misconduct, and a federal mandate that states license police officers. End the militarization of police.

Enact a federal abortion rights law. With federal courts now packed with conservative judges, we must stop relying on the judiciary to protect abortion rights, and enact those rights into federal law.

Pass gun legislation. Even the most rightwing judges on the Supreme Court haven’t said gun rights are limitless. I support broader gun rights than the strictest readings of the Second Amendment, and I’m not profoundly uncomfortable with the Heller interpretation that the Second Amendment confers an individual right to keep and bear arms. But it should be a regulated right. That’s just common sense; even free speech has limits. I’m not for confiscating firearms; there are legitimate uses for firearms, people who live in rural areas have a legitimate need for self-protection, and it’s not possible to disarm 330 million Americans in any case. That horse is out of the barn. But there’s no reason for civilians to possess weapons of war, so I support reinstating the assault weapon ban. Congress should appropriate money for a mandatory buyback that makes the owners of these weapons financially whole, but requires turning these weapons in. If AR-15s and AK-47s retail for an average of $1,200 each, and we assume 20 million such guns are in circulation, then a full buyback would cost $24 billion, but I think that’s money well spent. Banning bump stocks is a no-brainer; even Trump supports that.

Crack down on private militias. This doesn’t require new legislation, as the militias could be broken up with existing (but long disused) laws, but it would be prudent to update and strengthen those laws. Biden should appoint an attorney general who will give major priority to the growing threat of vigilante and militia violence, and use all available legal tools to disband the militias.

Grant statehood to D.C. and Puerto Rico. People living in D.C. and Puerto Rico are U.S. citizens, and there’s no logical reason to deny them representation in Congress or the benefits of statehood. The barriers are purely political and partisan, and Republicans have gamed the political system so much that Democrats owe them no deference, especially at the expense of these citizens.

Restore balance to the Supreme Court. University of Washington political scientist Scott Lemieux argued here that

“American political elites have generally supported the strong form of judicial review that emerged in the late 19th century because the Supreme Court generally tracked with the constitutional views of the dominant political coalition. A Supreme Court representing an entrenched, unpopular minority faction that refuses to allow the popular majorities from the other party to effectively govern would be neither democratically legitimate nor politically stable.”

It’s a reasonable argument, and an eminently practical one. Throughout American history, the Supreme Court has oscillated in and out of sync with popular sentiment, and that’s not a bad thing in and of itself; as Karl Marx said, “the masses are asses,” although I would put it, “The masses can be asses at times,” because the citizenry isn’t always wrong. It isn’t always right, either. But Americans are fundamentally decent people with a sense of fair play, and the majority of us, call it “the herd” if you wish, are more often right than wrong.

Taking us as the fallible human beings we are, the Supreme Court can, and should be able to, act as a check not only on the bad impulses of politicians, but also on the bad impulses of citizens. That’s the whole purpose of having rule of law. But the courts can’t wander so far out of sync with the majority sentiment that our judicial system becomes illegitimate in popular perception. In the past, federal judges at all levels have been sensitive to this, and generally knew when to step back. Judges are political creatures, too. It’s a cliche among political scientists that “Supreme Court justices can read election returns.”

In the past, the two parties cooperated to keep the judiciary balanced through a system of encouraging presidents to nominate judges of high reputation with impeccable credentials, not too ideologically extreme, and rejecting nominees who didn’t meet those criteria. Comity and deference have been essential parts of this process. Now, all of that has been abandoned by Republicans in their drive for judicial power, to a degree that — at least in the minds of a growing number of Democrats — threatens judicial tyranny. There may be some divergence between reality and perception — after all, judges are capable of being more fair-minded than the politicians who appoint them — but a reactionary judiciary that obstructs social progress isn’t healthy for society in the long run.

In the old days, the system of comity and deference would have kept Republicans from resorting to Machiavellian tactics to stuff the Supreme Court with a ruling reactionary majority in a country where true conservatives are about a third of the population. (Public support for Roe v. Wade is around 70%). They would have looked at the fact Trump lost the popular vote, and the last House elections went overwhelmingly Democratic. But today’s Republicans don’t seem to care about any of that, only naked power — not power legitimately won in elections, but power seized by gaming the system. Worse, they openly talk now about using judicial power to intervene in election outcomes.

This leaves Democrats with no choice but to counter with hardball tactics of their own. Their two basic choices are to strip power from the federal judiciary, or wrest back control of the federal judiciary, starting with the Supreme Court. A popular idea in Democratic circles right now is to expand the Court to 13 or 15 seats, which would give a newly elected President Biden 4 or 6 seats to fill immediately, with the backing of a Democratic-controlled Senate which would turn a deaf ear to Republican objections to any of his nominees.

The better course here is for Republicans to back off. Trump won’t, but McConnell might, if the winds blow against his present course. Don’t expect any Republican senators to do what’s right, fair, honorable, or best for the country; this will turn on political calculations (see FiveThirtyEight article here). But weighing consequences could, and probably will, figure into their calculations. The best and perhaps only way to get a sufficient number of them to resist voting on a nominee (I don’t believe any of them will vote against the nominee) is by threatening to retaliate, and then retaliating if they don’t. The worst thing Democrats can do is bluff, which they’ve sometimes done in the past, but I don’t think they’re bluffing this time; the Democratic base is extremely angry over this.

Prosecute Trump administration crimes. Many Democrats fervently believe Trump’s administration is full of criminals and rife with criminal behavior, starting with Trump himself. They should not get a free pass. But prosecution decisions must be made by career prosecutors, not political appointees (the Barr model), based on impartial review of evidence, not politically motivated, with charges and penalties appropriate for and proportional to the crimes that were committed. On that basis, I agree with holding Trump, other members of his administration, and their subordinates and functionaries, accountable for any crimes they’ve committed that can be proved beyond a reasonable doubt in a court of law. This is necessary in order to deter criminality by future administrations (including Democratic ones).

Return to The-Ave.US Home Page