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The defining tussles of the US presidential election
Written by Alex Massie
24 September 2020
If you thought this American presidential election could not yet become more febrile, more absurd, and more consequential than it is, then it’s time to think again. The death of Ruth Bader Ginsburg at the age of 87 and long past the time when she should have retired from her position as a Supreme Court justice is one thing; Donald Trump’s intimation he might not be inclined to accept the election result, another.
This latter issue might be thought a fresh piece of performative art from a president whose chief attribute – we are fishing in a small pool here – is his ability to drive his opponents to distraction. But, as ever with Trump, it is difficult to know if he is being serious or if, as so often, his words should be treated as whimsy. Nevertheless, Trump was asked by Fox News if he would accept the election result (a question, we might note, that is predicated upon the idea that Joe Biden will win the presidency) and he replied: “No. I have to see. Look you – I have to see. No, I’m not going to just say ‘yes’. I’m not going to say ‘no’. And I didn’t last time, either.” Make of that what you will.
Ginsburg’s death is a dramatic, late-season plot twist too. By rights, she should have retired during Barack Obama’s first term, thereby ensuring the appointment of another tolerably liberal justice. Vanity and ego are powerful things, however, and now American liberals face the prospect of a conservative jurist replacing Ginsburg and tilting the court’s balance away from the liberal majority it has, on the whole, enjoyed – or endured – for more than half a century.
There is, of course, a blatant double standard being employed here. When the conservative Antonin Scalia died in March 2016, rather further from that year’s election than we are from this latest presidential tussle, Republicans in the Senate decreed that the next justice should be appointed by the new president, not Obama. There was, after all, a chance that the president might be a Republican one. Now, however, the GOP demands that custom be followed after all: a sitting president must be permitted a vote on his nominee even if he has only weeks left to serve himself.
Grotesque, of course, and naked politics for sure. Yet, viewed from a conservative perspective, there is a certain sense to it and even Republicans who do not love Donald Trump can argue that the prize of a conservative Supreme Court is such that it can survive a certain degree of hypocrisy. That is one way of measuring the fact that the Supreme Court is now too important in American politics; too many matters that should be settled, or at least argued by, the legislative branch of government, are now determined by the court.
In response, American liberals talk of adopting extreme measures themselves. These include ending the routine use – and abuse – of the filibuster that makes a super-majority necessary to pass legislation through the Senate, granting statehood to (reliably Democratic) Puerto Rico and the District of Columbia and, if necessary expanding – which is to say, packing – the Supreme Court to 11 or even 13 justices, the better to preserve its liberal majority.
Individually, there may be plausible arguments for each of these measures; collectively, they could easily be considered a means by which liberals would redraw the political map so as to entrench their own advantage. Beneath talk of “democracy” and “justice” this would be a power-play to match Republican obstructionism, double standards, and cynicism with Democratic muscle. As such, it is tempting indeed.
And yet it would also, I suspect, be dangerous. In the first place, Joe Biden’s campaign for the presidency is based in large parts upon returning some sense of normalcy to American politics. Donald Trump has cheerfully trashed many of the things customarily associated with the presidency. Rules – and norms – are for little people, not the Donald. Biden’s campaign is an argument that those norms, however frustrating and limiting they might be, actually matter.
From which it follows that a promise to play the Republican party at its own game counterfeits the underlying argument for Biden’s presidency. In one sense, this is plainly disagreeable for Democrats: why should they observe the customary pleasantries of American politics at a time when Republicans are cheerfully happy to ignore them? Why should they be expected to be the bigger, better man?
The answer to that is straightforward: because someone has to be. Failing that, an arms race ensues in which both parties compete to see who can most thoroughly tear up the conventions that have, however uneasily or imperfectly, established the ground rules for American politics. Remove those, and who knows what might follow?
That is, in part, one of the conservative arguments for a Biden presidency. It will advance a liberal agenda, certainly, but this is of less immediate importance than the promise of a return to conventional politics. Absent that, a form of anarchy beckons, for without agreed rules or norms, politics falls apart.
There is an underrated risk of that happening in the United States now. It is not just the Supreme Court whose legitimacy is contested; Congress is in the dock too. Democratic nominees have won a majority of the presidential vote in six of the past seven presidential elections, yet the nature of the electoral college – which gives disproportionate power to sparsely-populated rural states relative to densely-inhabited coastal ones – hands the GOP a significant advantage in presidential elections and an often decisive one in elections to the Senate. Wyoming and California, after all, have the same number of senators.
Hence this acute difficulty: the American system is that of a constitutional republic, not a parliamentary democracy. Yet over recent decades a great sorting has taken place and the Democratic and Republican parties are each more homogenous than was the case in previous iterations. American politics, therefore, has replaced coalitions with teams without updating or reforming its governmental institutions to take account of that. A system built to require bipartisanship is stymied by a parliamentary style of politics in which the winner takes all and the loser gets nothing.
That is, in some respects, the gravest ongoing crisis in American politics and it is one that cannot be fixed save by significant institutional reform or, alternatively, re-appreciating that, in a country as large and diverse as the United States, sweeping, immediate, and wholesale change is neither possible nor even necessarily desirable. Nobody is excited by incrementalism but, in the main, that is what the system demands.
Biden, who retains a significant if not yet impregnable advantage in the opinion polls, will have to decide if he is a reformer or a re-maker. The pressure from his party, goaded as Democrats are by GOP intransigence, will encourage Biden to remake the institutions of American democracy even if his own instincts lie more in reforming them. But, if elected, the tension between these positions, these inclinations, will be one of the defining tussles of a Biden presidency.
About Beyond the Street and Alex Massie
We are all guilty of being too inwardly focused sometimes, especially as we navigate these changed times. It is all too easy to be caught up in the problems close to home, and for overarching trends to pass us by.
To remedy that short-sightedness, Charlotte Street Partners has enlisted the ingenuity and talent of the writer and commentator Alex Massie. As our new correspondent at large, Alex will look at the bigger picture for us each week. We have challenged him to come up with something a bit different: broad, lateral thinking, thematic insights and a more global perspective.
Alex is a freelance journalist and commentator based in Edinburgh. Not only is he Scotland editor of The Spectator, but he also writes a political column for The Times and The Sunday Times. He features regularly on the BBC as a political commentator and has written in the past for The Telegraph, Politico, The Washington Post, the Los Angeles Times, The New York Times, the New Statesman, The Observer, and TIME magazine, among others. He was also the Washington correspondent for The Scotsman and assistant editor of Scotland on Sunday.
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