And as much as I don’t like it, that means voting for Joe Biden. Mind you, this is from someone who had Biden at the bottom of his depth chart in the primary. I’m not saying he’ll be good–we’re not getting Medicare for All, though we might get some kind of Green New Deal and some other good policies. But parts of the left, construed somewhat broadly, have downplayed what Biden would mean for the courts and the rule of law in the U.S.–and if those go, then we have no hope of ever truly enacting good policies (boldface mine):
Last night, ahead of the nomination of Kamala Harris, the first woman of color on a major party ticket, the Democrats tackled four issues that are of critical importance to young voters in the upcoming election: gun reform, climate change, immigration, and women’s rights. On paper, it’s nearly impossible to talk seriously about any one of those issues without acknowledging the critical role the courts have to play, much less all of them….
There is no gun regulation or weapons ban that survives the Republican Supreme Court. None. To talk about an assault weapons ban, as Democrats did last night, without talking about the five pro-gun absolutists currently patrolling the Supreme Court is to talk about flying without acknowledging the limitations imposed by gravity. There is no climate legislation that survives what can be called the most “pro-business” Supreme Court in American history. None. And while we’re here, it’s worth mentioning that there’s no federal program that addresses police brutality, no expansion of health care, and no voting rights protection that survives this court either. I’m not making this up: The five conservatives on the Supreme Court have struck down legislation regarding each of these issues, or refused to defend this kind of legislation when lower courts have struck down the laws, over and over again.
It’s not just the Supreme Court either: on the federal circuit courts, we’ve reached the point where Bush 43 appointees look, in relative terms, like moderates*. You also can add environmental regulation, worker protection, and so many other issues. Biden’s nominees might not be great, especially on economic issues. They probably won’t decide great case law, but they probably wouldn’t stand in the way of Democratic legislation either (and this time, we’ll have to protest Biden too).
But this election isn’t just about who decides the law, it also about a president who has no respect whatsoever for the rule of law. A small, and in the grand scheme of things, unimportant example: Leonard Cohen’s estate, who controls the use of the song “Hallelujah”**, explicitly told the Trump and the RNC that they couldn’t use the song at the convention, and they went ahead and did it anyway (this also has happened to Neil Young repeatedly. Like I said, a small example, but it’s part of a larger pattern (boldface mine):
Mr. Trump’s aides said he enjoyed the frustration and anger he caused by holding a political event on the South Lawn of the White House, shattering conventional norms and raising questions about ethics law violations. He relished the fact that no one could do anything to stop him, said the aides, who spoke anonymously to discuss internal conversations.
I think everyone, if you didn’t know this already, has learned during the last four years that the peaceful, non-violent submission of power and will to law by those who have power is, to a considerable extent, dependent on those who possess it.
Unfortunately, Trump’s disdain for the rule of law is contagious, and, if we do face (more) political repression, much of it, if U.S. history is any guide, will occur at the local and state levels, though it will be following Trump’s ideology. Consider the Portsmouth, Virginia police (boldface mine):
How can anyone accurately describe what is happening in Portsmouth, Virginia, for example, without lapsing into the language of the foreign correspondent? The security forces are threatening to detain their political opponents.
In June, protesters beheaded a few Confederate statues in Portsmouth and tore down another, which landed on and injured a demonstrator. Several months later, Portsmouth police, taking advantage of Virginia’s magistrate system, which bypasses elected prosecutors in these decisions, charged various local civil rights leaders, public defenders, and the president pro tempore of the Virginia Senate, Louise Lucas, with felony charges of conspiracy to injure a monument.
Lucas had left the scene hours before any of the statues were harmed. The charges seemed timed to interrupt a Virginia Senate special session to debate new police reform legislation. The local prosecutor was bypassed, perhaps on account of her reformist tendencies. The police named her a possible witness, in what appeared to be an attempt to remove her from the process entirely.
All of this, especially when you take into account the attempt to sideline the prosecutor, is very ham-fisted and obvious. Here it is, again, in foreign correspondent voice: The security forces are cracking down on the opposition. On behalf of the people whose interests they truly represent, the police were persecuting people like Lucas, whose only claim to authority is that they were “elected” by “citizens.”
…The Virginian-Pilot’s Ana Ley and Gary A. Harki reported that “elected officials, activists and historians” have identified a “clear pattern” in which Portsmouth’s “majority-Black population pushes its government to repair strained police relations, spend more tax dollars on children and pass countless other measures to make Portsmouth more equitable,” only for that majority to find its representatives hounded out of power by the police.
For ousted police Chief Tonya Chapman—the first Black woman to lead a municipal police department in Virginia—it was unspecified “concerns with leadership of the department.” For then-Councilman Mark Whitaker, it was a federal forgery investigation spurred by then-Sheriff Bill Watson, one of Whitaker’s fiercest political foes. For former Mayor Kenny Wright, it was a bizarre low-speed car chase over an expired inspection sticker.
…Ideally, this is the behavior of a department that is fearful of its inevitable extinction. But it also looks quite a lot like a department that expects to get away with arresting a state legislator along with a large number of its local opponents. Arresting defense attorneys is not a particularly subtle display of power.
As some asshole with a blog noted:
The inability to control local and state [level] internal security forces means there is an unelected and unaccountable branch of government, with a near monopoly on violence. It has its own ideology, and because it does not have to respond to voters–that is, their fellow citizens–they are free to pursue their own ideology, even at the expense of those they govern.
It sucks that a better candidate didn’t win, but both the law and its rule matter. Without it, nothing even has a chance to change. To do that, we need Democrats in the Senate and the White House. Their judges might not be good, but Trump’s judges–and his complete disrespect for the rule of law–will be far worse for the left.
*Obama, true to form, didn’t flood the federal judiciary when he had the chance.
**The whole question of should art posthumously belong to an artist’s estate is a separate question, but it is the law.