The Crisis in American Politics

By Robbin Laird

The United States in the midst of a Cold Civil War.

Deep splits in the country over social values are threatening the ability of the polity to function.

Politics really is about an ability to shape and operate in a public space; yet the public space is under assault from the fragmentation fueled by values-based debates and the use of the social media to create enhanced tribal solidarity and divisions within the social and political system.

The polity is ultimately about the ability to debate issues and to compromise to ensure that the life of the nation continues, thrives and adapts.

It is not about pushing as many divisive social issues as possible into the public spotlight and then using politics as a means for repressing those social values which you do not like.

The Kavanaugh hearings are a key turning point with regard to the future of American politics.

Two opinion pieces, one from the London Times and the second from the Wall Street Journal argue the case for the US facing a turning point.

In an article by Gerald Baker published on September 26, 2018 in the London Times,  the author forcefully made the point that the way the opposition has conducted itself simply contributes to further deterioration of American politics.

Let’s be clear: it’s not possible to know who’s telling the truth about these alleged incidents. Dr Ford may or may not be convincing in today’s hearing. But in an awful sense, none of this — his alleged guilt or innocence, her real injury or putative dishonesty — matters. This isn’t ultimately about the character of a nominated judge, still less about the jurisprudential principles America’s highest court should follow.

It’s about politics. Mr Kavanaugh is the standard-bearer of the conservative movement. Dr Ford is the instrument of liberal resistance. Republicans want to lock in a conservative majority on the court for perhaps the next 25 years. Democrats think that, by derailing this nomination, they can put off filling the seat until after the congressional elections in November when they might have a majority in the Senate.

This ugly fight offers another useful clue to the dysfunction of modern American, and much of western, politics.

The Supreme Court has become the de facto law-making body across whole swathes of American life. The burning issues — gun control, race relations, access to health care, abortion, gay rights, regulation of the internet, environmental protection — are settled now by court decisions. No one in America got to vote on whether gay marriage should be lawful across the entire country.

The court is a powerful example of the way in which decision-making has been removed from the people and handed to remote, unelected, unaccountable individuals. The growing power of judges, international and supranational institutions, corporations, the media, is fuelling the rising sense of powerlessness among Americans and in much of the world, the so-called populist backlash. Don’t expect it to recede any time soon.

And in an article by Daniel Henninger published on September 26, 2018 in The Wall Street Journal, the author argued that there was a real  potential for the Kavanaugh standard to permeate future debates and policy making and to undercut the functioning of an effective democracy.

It is an inescapable irony that the Kavanaugh Standard—“I believe”—is being established inside the context of a nomination to the highest U.S. court. This new standard for court nominees (and surely others in and outside politics) would be that judgment can be rendered in the absence of substantive argument or any legal standard relating to corroboration, cross-examination or presumption of innocence.

In fact, the Kavanaugh Standard would have less intellectual content than liberalism’s previous judicial gold standard—agreement with the Supreme Court’s decision in Roe v. Wade. The new, operative standard, assuming two Republican senators abandon Judge Kavanaugh, will come down to a leap of faith.

 For a political cynic, like Chuck Schumer or Dianne Feinstein, all these considerations are pointless and irrelevant. Just win, baby. A bloodless political actor such as Sen. Schumer would say: Look, if there’s a problem of some sort with compromised legal standards, we can make adjustments later. They won’t do that. 

If Democrats regain control of Congress and the presidency, this is how they will govern—with belief alone sufficient as justification for imposing policy….

Looking at what has happened recently to university professors accused and then abandoned by their schools and colleagues for alleged racial offenses, or at the spectrum of proof in #MeToo incidents, it is clear that the political and academic left are contesting centuries-old standards of evidence. 

Liberal jurisprudence and its arguments with conservatives, for example over Fourth Amendment search cases, is being displaced by a Democratic left—there is no other way to describe it—that prefers rough justice.

Leading Democrats have constantly criticized President Trump for what they see as his bullying tactics and populist behavior.  If this is their response, they are hardly setting a higher standard.  One is then left simply with asserted beliefs and prejudice unexamined as the basis for one’s political position.

We are a long way from what liberal democracy was all about. As John Stuart Mill argued in On Liberty, that without public debate about the basis of one’s opinions there is nome other than prejudice operating.

The rise of identity politics is a significant threat to liberal democracy, for the basis of one’s opinions is simply those associated with one’s self defined identity.  It is not necessary to examine your beliefs; you simply assert them and assume their validity.

We are at a turning point in American politics; but it is clear that the Kavanaugh standard will only ramp up the heat on the internal civil war going on in the United States with significant detriment to the nation and its future.