Wednesday, 16 December 2015 10:54

What Needs to Be Done and How It Can Be Done

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What Needs to Be Done and How It Can Be Done

M. Lester O'Shea

M. Lester O'Shea is a former chairman of the San Francisco Republican Party, and the author of two books, Tampering with the Machinery (McGraw-Hill), and A Cure Worse Than the Disease (McGraw-Hill).

While elections for Congress and for state offices are important, nothing is more crucial to the future of the United States than who occupies the White House, not primarily because of the president's executive authority but because of his key role in the selection of America's ultimate authority, which can override anything done by the rest of government, federal, state, or local.

This ultimate authority is known as the United States Supreme Court, but so expansive have its powers become that the term "supreme junta" might be more accurate.

This body of nine was not the ultimate authority, its decisions permeating every facet of American life, until relatively recently. Sweeping changes decreed by the federal judiciary on the basis of new interpretations of provisions in the Constitution in place for over a hundred years that no one had ever interpreted as having such meaning would have been unthinkable.

Thus the 19th Amendment, giving women the vote, was enacted through the cumbersome constitutionally-prescribed process of amendment, because it had crossed no one's mind then that distinctions in law based on sex violated the 14th Amendment's provision for "equal protection of the laws."

Today, of course, it is seriously argued by ostensibly rational people with legal training that courts should hold that sex distinctions, such that Jim may marry Mary, but Sally may not, violate the Equal Protection Clause, and some courts have actually done so. If such an imaginative interpretation of the 1868 Amendment had been acceptable in 1920, women's suffrage could have been created overnight by a court decision.

But in 1920 such a decision would have been completely beyond the bounds of respectability and acceptability. By the 1950s, however, there was more acceptance of an aggressively expanded judicial role, as the intellectual and academic worlds had become more leftist and liberals had learned to look to the courts to promote egalitarianism. Beginning with the "Warren Court," the court embarked successfully ("Impeach Earl Warren" efforts got nowhere) on a far-reaching program of reordering American life.

Initial efforts, striking down governmentally mandated racial segregation in particular, had constitutional justification. But, emboldened by success and with a reliable cheering section in the academic world, in the law schools in particular, and in the intellectual community and the media generally, the Court transformed matters in one area after another, eliminating laws restricting abortion, ordering school busing, making welfare a "property right," hamstringing and for a while totally banning capital punishment, invalidating vagrancy laws and the poll tax, providing criminal suspects and defendants with extensive new rights, and throwing other roadblocks in the way of law enforcement, eliminating the common practice of basing one house of a state legislature on geography rather than population (as in the case of the United States Senate) , extending speech and other rights to schoolchildren, forbidding prayer at school events, allowing public universities to engage in racial discrimination against whites and Asians, and concocting the absurd concept of "disparate impact" to construe the 1964 Civil Rights Act as forbidding consistently applied standards in employment.

What the Court was doing was not acting as a court at all but rather imposing its members' personal views of what constituted enlightened policy on the country, merely going through the motions of legal analysis. Judges convinced of their enlightenment and moral superiority can be absolutely shameless in what they do. Judge Bork is said to have commented that when he reached the highest levels of the judiciary he felt somewhat like an astronomer who reached the heights of his profession only to discover that what was actually being practiced there was not astronomy but astrology.

The constitutions of a number of states provide for direct democracy in the form of ballot initiatives, but the Supreme Court can invalidate their results, as in the case of Colorado's Proposal 2, which amended the state constitution by providing that no government entities in the state could enact ordinances forbidding discrimination against homosexuals. The tool, in Romer v. Evans, 1996, was the ever-handy Equal Protection Clause. But, as Justice Scalia said in his dissent:

The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage . . . it must have recourse to a more general and hence more difficult level of political decision making than others. The world has never heard of such a principle.

Again:

The only denial of equal treatment [the Court's opinion] contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say . . . one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.

Along that line, in 2012 the Sixth Circuit Court of Appeals, by a 8-7 en banc vote, held that Michigan's state constitutional amendment forbidding race and sex discrimination by state entities, adopted by a 58 percent to 42 percent margin in 2006, violated the Equal Protection Clause. All the judges in the majority had been nominated by Carter, Clinton, or Obama.

The present Supreme Court is much sounder than the courts that accomplished most of the overturning of the established order of things summarized above, and there is probably a 5-4 majority in favor of most sensible positions. The majority is a shaky one. Chief Justice Roberts went bad in the Obamacare decision, and Justice Kennedy's logic tends to get shaky when homosexuals or murderers are involved. Still, there are generally enough votes to produce decisions consistent with the meaning of the Constitution and the laws.

But all it would take would be the replacement of one of the conservative justices with a fervent leveler and all bets would be off: for there is really nothing that someone who would pronounce insertion of anti-discrimination provisions in a state constitution violative of the Equal Protection Clause is not capable of.

Consider the "disparate impact" absurdity - that reasonable standards, consistently applied in a color-blind manner, are presumed invalid if a disproportionate number of one racial group (as a practical matter this means blacks and Hispanics) fail to meet them. This was enacted into law in the 1991 Civil Rights Act (which President Bush first said he would not sign because it was a "quota bill" and then signed into law anyway), dealing only with employment.

No court has ever concluded that "disparate impact" applied anywhere except in the employment context. But that has not stopped federal officials from attempting to intimidate entities in other areas, from education to banking, suggesting that practices that do not produce equal success rates by race and sex may be illegal and get them in trouble with the government. The Department of Education has warned universities along that line. The Holder Justice Department apparently succeeded in getting the city of St. Paul to abandon a lawsuit in which the city was contending that "disparate impact" was not applicable, for fear that the correctness of that position would be confirmed if the suit went to the present Supreme Court. It also has succeeded in extracting hundreds of millions from banks based on the argument that their lending practices, without any evidence of racial discrimination, nevertheless were objectionable based on "disparate impact." Federally regulated banks do not want trouble with the feds and prefer settling to litigating. With the Supreme Court's balance tilted, one could count on the application of "disparate impact" across the board.

Also quite likely would be a complete ban on the death penalty; further expansion of criminal defendants' rights; not only the invalidation of repeals of race and sex preferences but very possibly their being made mandatory to prevent adverse disparate impact; the countenancing of sweeping increases in executive-branch powers; and nationwide "same-sex marriage," of course called "marriage equality." Public displays of religion, including the presence of chaplains in Congress and in the armed services, would likely face further curtailment. And a new case would overrule Boy Scouts of America v. Dale and require the Scouts to accept active homosexuals as members and Scoutmasters.

And those are just issues that have already come before the courts. Who can tell what striking new insights into what the Constitution means a majority of fervent egalitarians would have? They might discover, for example, that state right-to-work laws either somehow violate the Equal Protection Clause or are precluded by the same freedom of contract invoked by the Court in the 1923 Adkins v. Children's Hospital case.

The only way to avoid a parade of horribles is to elect a president who will nominate for judicial vacancies people who will be real judges rather than social revolutionaries pretending to be judges: which, as a practical matter at this point, means a Republican. But how is this to be done?

The winning Reagan coalition had three parts. One consisted of those concerned about national security, anxious to stop, and optimistically to turn back, forces in the world hostile to America and its interests; primarily, at the time, Communism. ("Mr. Gorbachev, tear down this wall!") The second was those who wanted frugal, limited government ("Government is the problem, not the solution!"). The third was the social-issues conservatives, who wanted an orderly society governed by traditional religious and social values and principles and without government favoritism based on race or sex. Reagan's firmness, as California governor, in dealing with riotous leftist students at the University of California aroused tremendous enthusiasm.

Analysts have pointed out a number of tactical mistakes in the 2012 Romney campaign, from allowing his early portrayal, in a massive advertising campaign, as a money-hungry profiteer with blood on his hands to go unanswered, to failing to effectively reach voters prior to the election and to get out the vote on election day, to making unfortunate statements. Romney's bland personality and permanently fixed smile were not assets either.

But the fundamental problem was that Romney was a Johnny One Note, his campaign completely focused on economic and financial matters. Richard Viguerie called his a "content-free campaign." He had nothing to arouse enthusiasm in two out of the three parts of the Reagan coalition.

Complaining about the economy is an iffy strategy, particularly if you are not articulate enough to convincingly tie its disappointing performance to specific failings of the incumbent (as Romney completely missed a great opportunity to do at the start of the third debate). Simply not being the incumbent, by itself, is not enough. Things were pretty bad in 1936, but voters did not blame Franklin Roosevelt; they still were blaming Herbert Hoover for the depression that had begun during his administration, and Alf Landon got only 8 electoral votes, carrying only Maine and Vermont. The current recession had set in well before the 2008 election (helping to doom McCain), and exit polls in 2012 showed voters blaming George W. Bush more than Obama for the sluggish economy.

Also, economies tend to be resilient enough to right themselves fairly quickly, deflating the issue.

Apart from complaining about the economy, the Romney campaign focused on the second of the three parts of the Reagan coalition: the believers in limited, economical government, the Taxed Enough Already voters. These solid, self-supporting citizens indeed are against expensive and intrusive government and want to keep their hard-earned dollars rather than lose them to boondoggles and wealth redistribution. Unfortunately they are largely offset by those who like the idea of a big and well-funded and generous government because they look to it rather than a booming private economy to put money in their pockets.

Certainly Republicans need to emphasize to those who are paying the bills how they are being taken advantage of for the benefit of the Democrats' favored constituencies. Democrats must not be allowed to get away with buying votes while those who are paying for the purchase fail to notice what is going on. Even 47 percent leaves 53 percent on the other side.

But generalized talk about excessive government spending strikes relatively few sparks; specific outrages need to be publicized: for example, that the Head Start program, costing $8 billion a year and a total of $180 billion since it began, has once again been shown by a study to have no lasting benefit to the children involved at all. Of course, it moves billions of taxpayer money through those in the industry, but, as with "green energy" projects, and so many of jobs in the old Soviet Union, without producing anything of value.

But to win - and for their victory to be really meaningful in terms of what Americans believe in - Republicans need to get beyond dollars and cents and fiscal and monetary policy and appeal to voters on the basis of ideology and principle. The idea that if 47 percent of the population are receiving some form of government benefit they are necessarily lost to the Republican candidate reflects an appallingly shallow view of the voters: that is, that all they care about is what is in it for them financially.

Does not the old saying, "Patriotism is the last refuge of the scoundrel," recognize the power of lofty ideals to sway people? Was not the theme of the book What's the Matter with Kansas? show consistently Kansans voted against their own financial interests?

Can one imagine Abraham Lincoln saying, "Studies show that 47 percent of the voters are in some way benefitting financially from the institution of slavery, so I cannot hope for their votes"? Were the Abolitionists, or the volunteers who went to the South in the 1960s to support Negro voting rights, inspired by the prospect of financial gain? Did Patrick Henry say, "Give me reduced taxes or give me death"?

As to the relative strengths of a fairness issue and the generic Republican economy-focused campaign, consider the 2006 election in Michigan. The state economy was feeble and unemployment high, reflecting poorly on the incumbent governor, Jennifer Granholm. The Republican candidate for governor was Dick DeVos, a successful businessman, who was in a position to, and did, fund his campaign with $35 million of his own money. Mr. DeVos focused his campaign entirely on the economy (and at one point - plus ca change! - was accused of outsourcing jobs to China).

At the same election, there was an initiative on the ballot, Proposal 2, which proposed to prohibit the State of Michigan and its entities, including universities and cities, from practicing race and sex discrimination: that is, the "affirmative action" that favors women, Negroes, and certain other racial minorities. To much of the Michigan establishment, including major corporations, the unions, the academic world, the newspapers, and the churches, the idea of interfering with government discrimination against whites, Asians, and males was abhorrent, and DeVos joined his Democratic opponent in supporting the well-funded campaign against Proposal 2.

DeVos lost to Granholm, 56 percent to 42 percent, while Prop. 2 passed in a landslide, 58 percent to 42 percent.

Opposition to labor union excesses, particularly in public employment, is another issue where Republicans have the popular wind at their backs, as demonstrated by recent decisive setbacks for unions in Wisconsin and Michigan (in the latter case including passage of a right-to-work law after the Nov. 2012 defeat of a union effort to write union rights into the state constitution), both states handily carried by Obama in both 2008 and 2012.

Probably in most states, including the "swing states," there is a majority opposed to changing the definition of marriage to make persons of the same sex eligible for it. In Maine, Minnesota, Maryland, and Washington, the four liberal states where in November 2012 voters approved "marriage equality" (after the proponents outspent the opponents by something like a 4-to-1 margin), opposition to it received more votes than Romney; in Maryland 48 percent vs. Romney's 36 percent.

Other non-economic issues that come to mind where the conservative point of view represents the majority point of view include lawsuit abuse (there is a reason the plaintiffs' bar is one of the largest financial supporters of the Democratic Party), the runaway welfare and disability system (recall Reagan's denunciation of "welfare queens"), gun control (meaning making the possession of guns by law-abiding people more difficult), immigration, environmental extremism including climate alarmism, abortion, and capital punishment.

All of these represent opportunities for Republicans to energize their voters in a presidential election.

Avoiding issues that can generate enthusiasm and votes for you lest you antagonize people who would never vote for you in the first place is not good politics. There are many Americans, a majority in many places in addition to Arizona, who find the present out-of-control immigration situation intolerable. A recent Pew poll in fact showed a national majority having the view that illegal immigrants should return to their countries of origin. Those with that view are very likely a majority of those who vote in Republican primaries. Mitt Romney made a nod in their direction by referring approvingly to "self-deportation," but then ignored the issue in the general election campaign, while Democrats used his "self-deportation" comment against him among Hispanic voters.

Not that that made much difference in the Hispanic vote; it is hard to see how anyone could seriously believe that there were a significant number of Hispanics ready to vote for Romney who were dissuaded by his not being sufficiently welcoming to illegal immigrants. While economic self-interest is not everything, it can be expected to prevail if not trumped by ideals or emotion; so the idea of a Republican's garnering a large percentage of the Hispanic vote is as much a will-o'-the-wisp as that of getting a large share of the black vote. Both groups are disproportionately lower-income and thus, disproportionately, naturally attracted to the generous Democrats. (Make 11 million predominantly low-skilled illegal immigrants citizens with the vote and count on at least 6 million more Democratic votes.)

Not only that, Democrats enthusiastically support providing them with preferential treatment. And the Republicans couldn't outbid the Democrats with affirmative action and open borders if they tried (necessarily throwing their principles out the window in the process), because they wouldn't be trusted. They would also be throwing away two issues potentially powerful with other Americans.

Making an issue of something even if only a minority agree with you on it is good politics if it gains you votes among them while those on the other side would never have voted for you anyway.

Barring presently unforeseen developments, victory will have to be based on domestic issues, since there are no foreign issues in sight analogous to those that activated the first part of the Reagan coalition.

Republicans generally made no secret of their antipathy toward Communism and conviction that its expansionist efforts should be resolutely opposed. Democrats, on the other hand, were accused, to a large extent correctly, as being "soft on Communism." They were to some extent influenced by actual Communists among them, but more significant was the fact that leftists couldn't help having a certain amount of sympathy for a system that had substantially abolished private property and private profit and made people equal - although, as in Churchill's saying, "equality in misery" as opposed to "inequality in prosperity." Leading Democrats saw good things in the Soviet system, an example being John Galbraith's statement, a few years before Communism's collapse, that the Soviet system worked because, unlike ours, it made full use of its manpower. He meant that there was no unemployment because everyone had a job doing something. (His comment was inexcusable in an economist, because without free markets and profits there was no assurance that what people were doing produced anything that actually met human needs and desires; much of the manpower was busy producing nothing of any value.) Liberals were horrified at Reagan's use of the term "evil empire."

Democrats were also much more likely than Republicans to believe that revolutionaries such as Mao Tse-Tung or Fidel Castro or those in El Salvador and Nicaragua were merely reformers seeking social justice rather than Communists.

At any rate, Communism's aggressiveness kept it very much in the news, and specifics as to what should be done about it made for Republican-Democratic issues, with those in favor of a robust approach to Communism tending to support Republican candidates.

The disappearance of Soviet Communism as a looming threat eliminated that issue. But what about the current principal international threat to American well-being, Islamic fanaticism? This is what caused 3,000 American deaths in the Sept. 11, 2001, atrocities and perhaps another 7,000 in subsequent warfare of various types.

At first blush, one would think that it would be the liberal Democratic Party that would be attracting support by advocating a hard line against Moslem fanatics. After all, they systematically oppress girls and women; they condemn and kill homosexuals; they particularly hate Jews. The Moslems also enthusiastically employ capital punishment, as is clear from a January 21, 2013 New York Times article, "Iran Resorts To Hangings In Public To Cut Crime." Not only were these particular hangings, in a Teheran park, for robbery rather than murder (shades of 18th-century England!), according to the article, "every year hundreds of convicts are hanged in Iran."

But Islamic fanatics also hate Americans. This resonates, perhaps unconsciously, with the view so many liberals imbibed with their mothers' milk or from their professors' lectures, of America as a malign force in the world, chronically on the wrong side: in Guatemala, Iran, Vietnam, Nicaragua, El Salvador, Chile, etc. Hard feelings toward America's enemies do not come naturally to them. Furthermore, the Arabs are dark-skinned, and ingrained in American liberals since the days of the civil-rights crusade is a sense of "Black good; white bad." The antagonism toward Israel of leftists in the United States and Western Europe has less to do with the Israelis' being Jewish than with their being white.

So vigor toward Islamic fanaticism did not become a Democratic issue but, rather, a Republican one - but only briefly. Republicans, after initial and decisive military action, led the long and costly and inevitably futile efforts to create liberal democracies in Iraq and Afghanistan - because of cultural and other characteristics of the populations. The resulting debacles not only discredited the idea of vigorously projecting American power in the world, but also made it impossible for Republicans to use confronting Islamic fanaticism as a Republican issue.

Once upon a time, forceful and direct action against fanatical Islam was feasible. When Gen. Gordon was killed in Khartoum by the forces of the Mahdi, Great Britain sent a punitive expedition up the Nile, destroyed the Mahdi's forces at the battle of Omdurman in 1898, and then took over, pacified, and governed what was called the Anglo-Egyptian Sudan for the better part of a century.

But this approach was feasible only because the British were ready to use force ruthlessly against insurgents; and they and the natives believed that they were there to stay. Everyone wants to be on the right side of those who are going to be around long-term rather than those who will soon be gone.

Americans had similar attitudes at that time. When Spain ceded the Philippines to us, we did not hold elections, but crushed Aguinaldo's independence-seeking rebels ruthlessly.

But that was then, and our view of other countries' right to self-government is altogether different. In addition, it is widely believed (by Republicans and Democrats alike) that all people are very much like Americans, or Swedes, or Swiss (Wrong!); that the despotic regimes standard in backward countries are just a matter of bad luck; and that with free elections, the people's inherent yearning for liberal democracy will produce happy, stable countries with individual liberties and the rule of law.

Realistically, the best that can be hoped for in the Arab world is tolerable governments that will minimize the harm that Islamic fanatics can do. But "Help relatively tolerable despots retain power to avoid something worse" is not a stirring slogan. And while all hard-headed commentary on the situation (e.g., Andrew C. McCarthy's) was on the Republican side, leading Republican politicians were perfectly happy with Obama's pulling the rug out from under Mubarak and overthrowing Gaddafi, so they could hardly even make an issue of the killing of four Americans in Benghazi as a result of our crusade for democracy in Libya.

So unless something unforeseen happens in the meantime, the 2016 election will have to be won on domestic issues. Washington's words to the Constitutional Convention in 1787, "Let us raise a standard to which the wise and honest can repair," are particularly relevant to Republicans, since their base consists largely of law-abiding, self-supporting and self-reliant citizens, while to a large extent the present Democratic Party is a coalition of those looking to government to give advantages, financial or otherwise, at others' expense. Republicans cannot outbid Democrats for those votes. They need to make it clear that they stand for sound policies that resonate with their base rather than be mute (or, worse, try to be more like their opponents) lest they offend those who will not vote for them anyway. *

Read 1708 times Last modified on Wednesday, 16 December 2015 16:54
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