How to prepare for the Kavanaugh midterms

People with the group Herndon Reston Indivisible hold up letters spelling

People with the group Herndon Reston Indivisible hold up letters spelling "VOTE THEM OUT" during a protest of the confirmation of Brett Kavanaugh to the Supreme Court, Saturday, Oct. 6, 2018, outside of the White House in Washington. (AP Photo/Jacquelyn Martin)

Matthew Dowd, a former Bush pollster and a genuinely gentle soul, wrote last night that we should put the Brett Kavanaugh debacle behind us, that we should forego “our tribal allegiances,” that we should “quiet out minds and hearts, pull back from the distractions of the external noise and clamor,” and reflect on the “shared values” that unite us. It was a plaintive plea for civility.

That’s very nice, in theory. But Trump Republicans would love nothing more than to see their opponents surrender the field in the spirit of civility. Trump Republicans, infused by their feral instinct for raw power, don’t care about playing nice. Civility is for suckers who don’t want to win. Civility has the texture of melting butter; in Mitch McConnell’s words, Trump Republicans would simply “plow right through.”

Speaking of McConnell, the Senate “Majority” Leader of what’s really a minority share of the American electorate, he said with pride yesterday that “we stood up to the mob.” He was referring, of course, to the aggrieved American citizens who last week dared flex their First Amendment rights to protest a credibly accused sexual assaulter. What a shame that McConnell didn’t stand up to Vladimir Putin’s hacking mob, whose unprecedented assault on democracy – on Trump’s behalf – was documented by the intelligence community prior to the ’16 election. McConnell was too cowardly and calculating to confront that un-American mob. After being briefed by the CIA, and asked to sign a bipartisan statement sounding the alarm, he adamantly refused, telling the CIA: “You’re trying to screw the Republican nominee.” Today he and the rest of his party’s surrender brethren are more upset about First Amendment protesters than having a Russian stooge in the White House. Winning trumps everything, even American values.

My point, lest it be less than obvious, is that everyone outside the Trumpian bubble has plenty of good reason to be incensed by the Kavanaugh episode and our crisis of legitimacy – starting with the empirical fact that when the new conservative Supreme Court rules against abortion rights, rules in favor of voter suppression, rules for corporations against workers, rules against affirmative action, rules against gun curbs, and rules against health care reform, it will do so with four of the five majority justices having been named by Republican presidents who gained office after losing the popular vote.

Wrap your aching head around that. We are now deep in the era of minority rule.

I’ve long written that the Electoral College is an un-democratic farce, that it’s nuts to elect a loser when all other democracies across the world award their top office to the winner. Kavanaugh was nominated by a president who lost the race by nearly three million votes. This new court will be the most conservative in generations, despite the fact that Democratic presidential candidates have won the most votes in six of the last seven elections.

But that’s just for starters. The senators who put Kavanaugh on the high court represent merely 44 percent of the population; the senators who rightly viewed his ascent as a disgrace represent 56 percent. If we aggregate all the elections that determined the current Senate, we discover that the Democratic candidates outdrew their Republicans opponents by 15 million votes nationwide. And yet, thanks to one of the Founders’ most ill-conceived compromises, each state gets two senators regardless of its population. The state of Wyoming gets two, despite the fact that its total citizenry is roughly one-third the size of Philadelphia’s.

The wounds inflicted by Kavanaugh’s minority-rule promotion will fester indefinitely. Any high court case with Democratic or progressive plaintiffs will be a minefield; their lawyers – citing his Judiciary Committee rant against “the Left,” and his dark warning that what goes around comes around – will demand that he recuse himself in every case with political overtones (starting with campaign finance). If he casts the pivotal vote in rulings that hurt the groups he denounced as a left-wing cabal, those lawyers will demand that the rulings be vacated for lack of impartiality. And that doesn’t include any cases that touch on the Mueller probe and the relationship between Trump and Russia; Senate Republicans, on behalf of their 44 percent of the population, didn’t care that Kavanaugh is on record defending presidents against special counsel intrusions.

But those likely clashes will occur over the far horizon. What we have now, looming ever closer, is a midterm election. If there is to be any fundamental corrective to the scandal of minority rule – to the serial Trumpian excesses, to the judicial coup we’ve just witnessed – incensed Americans will need to overwhelm the ballot box. I wrote repeatedly in 2016 that we faced a national civic emergency. Today it is far worse. So we can stay home on election day, embrace passive civility, and further embed the tyranny of the minority – or we can act as patriots and instill accountability. The future is in our hands.

I was a guest for an hour today on WBUR’s “On Point.” (WBUR is Boston’s NPR outlet.) Audio will be archived here soon.

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