Random Thoughts on the Election

Those outraged by Trump’s election should take a few deep breaths and chill out.

By all accounts, the election went smoothly without complaints of voter intimidation or other irregularities. Clearly Trump won the election fair and square. The shock and deep disappointment many feel in response to Trump’s election is understandable, but protests (particularly violent ones) that deny the legitimacy of the result (e.g., “Trump is not my president”) are not. As one (very liberal) columnist astutely observed, “not my president” is equivalent to saying “not my Constitution” or “not my country.” There was near universal, and entirely legitimate, outrage over Trump’s pre-election refusal to commit unequivocally to accepting the result. Undoubtedly if Clinton had prevailed and the Trump supporters were now the ones protesting, hostile editorials and other condemnations would be raining down on them from all directions.

Both Hillary Clinton and President Obama were gracious in accepting the election result, wishing Trump success, and urging Americans to keep an open mind. Trump’s opponents, bitter as they may be, should follow this example. Political pundits as well as other Trump critics in the media and elsewhere likewise should indulge in at least a modicum of open-mindedness. Their dire predictions for his presidency may eventually come to pass but they are premature now.

The election was a big win for the democratic process and a setback for special interests.

Whether or not they agree with the result, good government advocates of all political stripes should applaud one remarkable feature of this year’s presidential election: special interests did not dominate. There has been  widespread public policy concern in recent years over the outsized role in elections played by fat cat donors, super PACs, corporations and labor unions, and the armies of political operatives they finance. These powerful forces were fully deployed by Trump’s primary opponents and by the Clinton campaign during the general election. However, Trump’s disorganized, underfunded, and essentially seat-of-the-pants operation somehow prevailed at each stage. Can other candidates make this perhaps chaotic but more democratic model work again in the future or will elections revert back to business as usual?

The media’s cluelessness over the election outcome results more from superficiality and groupthink than liberal bias.

There is plenty of political bias (liberal and conservative) in the media. However, liberal bias cannot explain the media’s election analysis and prediction meltdown; both those on the left and the right overwhelmingly predicted a Clinton win. I’d suggest that a more likely cause is the shallowness and downright laziness that seems to characterize most media coverage today. Media outlets do far too little original fact-gathering and analysis. They rely much too heavily on what is fed to them by partisan sources, thereby serving as uncritical echo chambers for partisan spinmeisters rather than subjecting their spin to scrutiny. This creates a media culture of insularity and groupthink. These shortcomings are actually more serious than political bias. One can find conservative media outlets to counter liberal bias and vice-versa. However, there is no alternative source to rely on for the original reporting and critical analysis that the media often neglect to provide.

Complaints about the electoral college are futile and misplaced.

Clinton’s lead over Trump in the popular vote has triggered complaints that the electoral college is undemocratic and renewed demands for its abolition. However, the nation’s founders were not overly concerned about popular election of federal officials. Until adoption of a constitutional amendment in 1913, U.S. senators were elected by state legislators rather than by popular vote. The electoral college itself was a compromise, with the main alternative being not popular election but election of the president by Congress. One reason for this is that the founders regarded state governments, not the federal government, as the primary sources of domestic policymaking, and therefore, the entities needing to be most responsive to the citizens at large.

This original model has been turned on its head in relatively recent times, with the federal government supplanting the states as the primary source of domestic policymaking. However, the federal government of today may be approaching the breaking point. It operates literally countless programs, many of dubious effectiveness, which are supported by a hopelessly complex tax system heavily influenced by myriad special interests as well as massive deficit spending. Much social policy is dictated from Washington through regulations and conditions attached to federal spending programs. There is a widespread perception that Washington works, if at all, only for the one-percenters. One reason for the polarized federal electorate and consequent stalemate in Congress is that citizens in different regions of the country have starkly different policy views. Given these considerations, shifting more political power from the federal government back to the states and closer to the people, as originally envisioned by the Constitution, may be a better approach than quixotic efforts to abolish the electoral college.

It’s possible that Washington gridlock may ease at least a little in the coming years (for better or worse).

Republicans will now hold the presidency and both house of Congress. Their control of Congress will likely continue for the next four years. A combination of demographics and gerrymandering gives them a firm grip on the House majority, and the math for the 2018 elections (25 Democratic seats at risk versus only eight for the GOP) heavily favors them to retain their Senate majority and probably add to it. Thus, Republicans are positioned to break through the gridlock that has defined Washington in recent years. Whether they actually do much and whether their accomplishments turn out to be good or bad remains to be seen. (Perhaps the public will be yearning for a return to gridlock four years from now.) What can be said for certain is that Republicans will now own the challenges facing the nation and will no longer be able to get by as the “party of no” using a strategy based on obstructionism.

The interpersonal dynamics should be particularly interesting. It’s unclear what policies Trump will pursue or how he will attempt to govern. He seems more likely to be a pragmatist than an ideologue. Certainly he doesn’t fit the conservative mold of his supposed congressional allies. A wild card in the congressional dynamics is Chuck Schumer, who will replace Harry Reid as Senate Democratic leader. Reid was (and continues to be) a hyper-partisan, bomb-throwing political hack with no apparent interest in public policy. While also highly partisan, Schumer is considerably more policy-oriented than Reid and much more likely to be a positive force for deal-making. In particular, the combination of Speaker Paul Ryan in the House and Minority Leader Schumer in the Senate offers at least a grain of hope for thoughtful, bipartisan approaches to policymaking.

The most predictable election result is its major impact on the federal judiciary.

Whatever its other consequences, Trump’s election avoided a dramatic and long-lasting shift to the left in the ideological balance of the Supreme Court. On the eve of the presidential election, Hillary Clinton was poised to use her “bunch of litmus tests” to give liberals a decisive fifth vote on the Supreme Court and solidify liberal control of the Court for years or decades to come if additional vacancies arose during her presidency. She also would have continued the sharp leftward trend of the federal courts of appeals after eight years of Obama appointments. Trump’s surprise win completely reversed this scenario. Through his election and their retention of the Senate majority, Republicans should have full control of judicial appointments for the coming four years. They should use this manna from heaven wisely and not overreach. For starters, Republicans should avoid:

• nominees whose main qualification is being a Trump crony (e.g., Giuliani, Christie);
• nominees who have strong partisan backgrounds (e.g., Senators Cruz, Lee, and Sessions);
• extremists who are outside the legal mainstream or overtly strident and divisive (e.g., most of those already mentioned); and
• litmus tests of any kind. Selecting judges on the basis of how they will rule in a specific case or on a specific issue is inimical to judicial independence regardless of whether the outcome sought is liberal or conservative.

On the positive side, Republicans should ensure that their judicial appointees meet the highest standards of integrity and intellectual ability. They should also select appointees who adhere to jurisprudential principles ensuring that they will interpret and apply the law as set forth in the Constitution and statutes rather than bending the law to reflect their policy preferences. For example, their nominees should

• reject the concept of the Constitution as a “living” malleable document whose meaning changes with the times to accommodate contemporary social and cultural mores;
• accept that creating new constitutional rights should be left to the amendment process rather than judicial fiat;
• commit to interpreting statutes according to their text, as best it can be determined by applying standard rules of statutory construction; and
• avoid giving undue deference to legal interpretations by the executive branch. They should follow Chief Justice Marshall’s admonition in Marbury v. Madison and reaffirmed in many decisions thereafter: “It is emphatically the province and duty of the judicial department to say what the law is.”

Perhaps most importantly, nominees should approach judging with modesty, recognizing that their goal should be to function as dispassionate legal experts rather than philosopher kings/queens who readily bring to bear their personal sense of fairness, morality and justice in deciding cases. While those who focus only on obtaining conservative legal outcomes might disagree, I’d submit that the gold standard in assessing nominees should be Chief Justice John Roberts.

Future voter coalitions probably will move beyond race.

Trump’s election is widely portrayed as the revenge of white working class, non-college educated voters. One pundit described it as a “whitelash” against the Obama presidency and the nation’s changing demographics. Obviously voters are motivated by any number of factors. However, I’d suggest that Trump’s election more likely represents primarily a largely race-neutral backlash against the “establishment” and its “elites” (both Democratic and Republican) who are widely seen as not serving the needs of ordinary citizens. Moreover, I strongly suspect that in the long run working class citizens without college degrees both white and those of color will come to realize that their common concerns and interests far outweigh their differences.

A coalition along these lines is now being held back by the fog of racial discord that obscures everything else. Racial disparities in many societal outcomes are real and in urgent need of attention. However, the article of faith among many that such disparities result exclusively or even primarily from pervasive racism in America diverts attention from the underlying problems. Unfortunately, a wide range of influential sources benefit from promoting racial discord. Their ranks include ideologically-driven pundits, writers, academics, and interest groups along with some cynical race-baiting demagogues. Democrats feed the flames of racial division by pushing identity politics. The media, who thrive on conflict and bad news, also contribute. For example, they tend to re-enforce the false narrative advanced by Black Lives Matter of systematic, deliberate police efforts to oppress and even murder African-Americans.

If this all-about-race mentality could be overcome, it would be apparent that the root problems affecting both white and minority working class Americans are fundamentally similar although often different in degree of severity. Such mutual problems include: not enough well-paying blue collar jobs; lack of education and skills needed to obtain the good jobs that our global, high-tech economy offers; a breakdown in traditional family structure; the scourge of drugs; and unsafe neighborhoods. Their outlooks are also similar and feature a sense that America is not working for them, and, ultimately, the kind of feeling of desperation that fueled Trump’s election.

Republican working class voters already recognize that the establishment forces of their party do not serve their interests. They see Trump, for all his faults, as someone who speaks to their concerns. (Whether he can deliver positive results is, of course, another matter.) The Democratic establishment and its elites also are under fire. Saunders supporters demonstrated similar disenchantment with them during the primaries. Working class minorities who still provide a reliable voting block for Democrats have yet to reach this point of dissatisfaction. However, I suspect it’s only a matter of time until they do. The Democratic establishment seemingly has little to offer them beyond (1) more of the same tired programs and policies that have yet to turn things around (and may even be counterproductive), (2) battles over cultural issues having little relevance to their daily lives, and (3) a lot of largely empty race-pandering rhetoric.

If working class whites and minorities do eventually unite, they would form a dominant voting block for whichever party embraces them and seriously attempts to address their issues This coalition would be even stronger if joined by younger Sanders-type voters who may be starting to see that they and their families will suffer the consequences of today’s financially unsustainable federal entitlement programs, which neither party’s establishment shows much interest in reforming.