The Constitution, impeachment and Bright Line Watch
As hinted last week, it's time for an update from Bright Line Watch. I strongly encourage everyone to pay attention to their updates on the state of democracy in America. I'll do so with an eye on this past week's impeachment hearings from the Judiciary Committee.
First, the preliminaries, which need to be restated for reasons that I do not fully understand. Nevertheless, since I am regularly asked, even by the same people, I will restate them. Right now, the odds of Trump being impeached-- meaning, the odds of the House passing "articles of impeachment"-- are quite high. Trump will not be convicted by the Senate, and he will not be removed from office. That requires a supermajority in the Senate, and there won't even be a majority to convict. The probability of acquittal in the Senate is precisely 1. It is the most certain thing in the history of politics. It is not even something to be described probabilistically. It is an absolute, mathematical certainty-- an anomaly in a universe beset by uncertainty. Somehow, amid the chaos of randomness and stochastic equations, a certain outcome has emerged-- the certainty that no matter what happens, Donald Trump will be acquitted by the Senate. No president in history-- no political figure in world history-- has ever faced less danger, at least as far as impeachment goes.
And let's clarify this. Mike Pence is irrelevant here. One of the questions I regularly have to field is this: Why are Republicans so averse to replacing Trump with Mike Pence? Simple. Convicting Trump doesn't replace Trump with Mike Pence. It replaces Trump with whomever the Democrats nominate next year because it guarantees Pence's loss in 2020. Convicting Trump doesn't take him off the scene. He would still be the only name that anyone ever mentions. The political universe really does revolve around Donald Trump, and convicting him wouldn't change that. All it would do is mean that the political universe would revolve around the one president in history convicted and removed from office by the Senate.
That's why the probability of acquittal is 1. Not approximately 1. 1.
With that in mind, let's turn to the latest wave of Bright Line Watch's study of American democracy. And, here's your usual caveat that I'm in the "expert" sample, so obviously, their sampling procedure sucks, but I'm only one person.
Anywho, a basic reminder of where I stand on this stuff. American democracy is in a lot of trouble, and I am far less sanguine about democracy than most of my colleagues in political science. On any one dimension of democracy, I usually see things similarly to how my colleagues do, with some exceptions based on research specialization. However, I weigh the dimensions differently. In particular, I place a great deal of weight on checks-and-balances, and our capacity to recognize facts as facts. American democracy has broken down almost completely along those two dimensions. I consider them indispensable. And in fact, consider some of the other conditions that Bright Line Watch examines, such as equal voting rights. When I answer that one, I acknowledge that we do not have equal voting rights. Based on what, though? The biggest infringements on equal voting rights that we have in the US come from structural factors like the Senate. Give me a choice between the Senate with a "common understanding of facts," or full, equal voting rights, but a total breakdown of facts, and guess which combination I'll take? That's right. I'm goin' with facts + the Senate. It isn't a hard choice. So, while the common, intuitive answer would be to place equal voting rights as the most central feature of democracy, that's just not how I weigh things. I consider the diminution of facts and the breakdown of checks-and-balances to be far more devastating to American democracy than my colleagues. Without facts, we have nothing, and an unchecked executive is about as dangerous as anything can ever be to democracy. That's why I think we're in such bad shape.
With that out of the way, the cool thing about Bright Line Watch is that with every new wave and every new report, they show something different. Here's what I find cool about the new study. "Cool," in the intellectually informative way. The new study breaks down assessments of how small-d democratic or undemocratic various actions and tactics are by Trump supporters and opponents. There's absolutely nothing surprising in what you see. Essentially, "democracy" gets redefined around convenience.
And, well, we can see this on display. We did, on Wednesday.
OK, let's take a moment here. An impeachment is not an assessment of whether or not the president acted "democratically." It is an assessment of whether or not the president committed "bribery," or other "high crimes and misdemeanors." However, as the testimony on Wednesday demonstrated, the history behind the "high crimes and misdemeanors" language in the Constitution was, to at least some conventioners, related to misuse of the office of the presidency to secure reelection through corrupt means, involving foreign powers.
So here's how a good faith debate would go. Impeachment for noncriminal actions would create a bad precedent. To avoid that, the bar should be criminality, in the context of vague constitutional language. This gets you into the mess of a distinction between "original intent" and "strict construction," but that's a topic for another post (although really, I ranted enough about how all "theories" of constitutional interpretation are rationalizations back on The Unmutual anyway).
Take Trump's name out of it, and that's a serious, legitimate argument! Now, could you secure a criminal conviction for Trump on what you have, regarding Ukraine, right now? That's less clear than a general abuse-of-power claim, so a higher bar for impeachment argument would be a way to get at this. This approaches Jonathan Turley's argument, but not quite. He went elsewhere, and... never mind.
The point is, you could have a legitimate debate, in the abstract, if you wanted to claim that you needed the kind of evidence that would secure a conviction on criminal charges for impeachment. Brush away anything that, philosophically, counts as abuse of power, improper behavior, etc., and simply assert that the bar is so high-- or rather, so low-- that really bad behavior simply doesn't meet the impeachment standard.
The Intelligence Committee hearings were hearings nominally about fact. See my previous comments about the degradation of fact.
The first Judiciary Committee hearings were supposed to be hearings about the principles of impeachment. And given the history of the "high crimes and misdemeanors" phrase, that is the history of a concept of democracy. So, as divided as Congress was on "fact," so were they on supposed principles of impeachment.
Please don't tell me you were surprised. Bright Line Watch's latest wave found, of course, sharp divides between Trump supporters and Trump opponents on whether or not the executive should have unchecked power. Duh! Sharp divides on voting rights, equal weight to votes across states (remember the electoral college?)* and other stuff.
Of course! If it benefits my side, it's democratic, and if it hurts my side, it sucks.
Right now, though, it's the Democrats who are telling themselves that they have "principles." Here's the key thing about principles, though. What do you do when they work against you?
Here's a fun, little trick. Every time one side has a majority by public opinion polling, that side points to the polls, and says, "my side must win or it's undemocratic!" Whine, whine, whine! The bigger their majority, the more certain they are to tout the polls, to whine if they lose, to search for some nefarious villain to blame, and so forth. But, are you always in the majority? You'll try to tell yourself you are, because that's how human psychological biases work, but you aren't. I work, of course, in academia. Home of self-righteous, woke lefties and the culture warrior politics of people looking for somebody about whom to do one of those obnoxious call-out tweets.
[Facepalm.]
Anyway, as a general rule, if you read a political science professor's blog-- even a snarky, contrarian blog like mine!-- you probably at least lean left. At the very least, you're not likely to be a right-wing culture warrior, yelling racist epithets at immigrants and obsessing over who's in the next bathroom stall, or whatever. Dude, just tap your foot like we all know you want to!**
See, this is called "equal opportunity" snark.
Where was I? Oh, yeah. Woke lefties. Remember 1996? Maybe not. I'm gettin' old. I remember it. You see, back in 1996, when Larry Craig was widening his stance and tappin' his foot to "The Macarena"*** in airport bathroom stalls around the country, the idea of gay marriage was so outre, so offensive to mainstream culture, that to be accused of supporting it was a horrible, terrible slur. To accuse someone of supporting gay marriage was like accusing someone of having once worn blackface. Sure, there were places around the country where people secretly approved of it, but you just didn't admit it publicly. In political science, our main survey, the NES, didn't even bother to ask about it until a few years later. No point. It was too unpopular.
So, to inoculate himself against the accusation that he might support gay marriage, Bill Clinton signed DOMA in 1996, to help himself get reelected. It was wildly popular.
You think you believe in going with the will of the majority? So, DOMA? How far do you want to take this?
Yeah, that's what I thought. It's all fine and good to point to public opinion, until you're in the minority.
My point? Belief in democracy is, for most people, conditional anyway. In the latest wave of Bright Line Watch's survey, we see this in interesting relief, just as we did last week. Facts? What are those? Checks-and-balances? Those are gone. There's my side and your side, and principles are evaluated on the basis of whose side they benefit at the time.
Yeah, that's Miles's law again. Where you stand depends upon where you sit.
Post-script on DOMA: Does anyone remember how the Democratic Party finally reversed on gay marriage and rejected DOMA? The answer is... [drum roll]... Joe Biden. In 2008, Obama was still being weaselly. Dick Cheney had come around to support gay marriage (gay daughter), but Obama? Nope. But, then Biden gave an interview, had a Biden moment in which he just blurted out his support for gay marriage, and that trapped Obama. So, if you want to know how the Democratic Party finally rejected DOMA and supported gay marriage, Biden did it. With a Biden moment. Anyway, there's that.
*Bright Line Watch breaks the Senate/electoral college out from more general violations of equal voting rights, but for me, the Senate is the 800 pound gorilla in the room, as far as vote weighting.
**Kids, go read about Larry Craig.
***I'm very, very sorry for that reference. I promise to listen to a lot of John Coltrane today in penance. Maybe some Miles Davis. Maybe a Hail Mary Halvorson or two.
First, the preliminaries, which need to be restated for reasons that I do not fully understand. Nevertheless, since I am regularly asked, even by the same people, I will restate them. Right now, the odds of Trump being impeached-- meaning, the odds of the House passing "articles of impeachment"-- are quite high. Trump will not be convicted by the Senate, and he will not be removed from office. That requires a supermajority in the Senate, and there won't even be a majority to convict. The probability of acquittal in the Senate is precisely 1. It is the most certain thing in the history of politics. It is not even something to be described probabilistically. It is an absolute, mathematical certainty-- an anomaly in a universe beset by uncertainty. Somehow, amid the chaos of randomness and stochastic equations, a certain outcome has emerged-- the certainty that no matter what happens, Donald Trump will be acquitted by the Senate. No president in history-- no political figure in world history-- has ever faced less danger, at least as far as impeachment goes.
And let's clarify this. Mike Pence is irrelevant here. One of the questions I regularly have to field is this: Why are Republicans so averse to replacing Trump with Mike Pence? Simple. Convicting Trump doesn't replace Trump with Mike Pence. It replaces Trump with whomever the Democrats nominate next year because it guarantees Pence's loss in 2020. Convicting Trump doesn't take him off the scene. He would still be the only name that anyone ever mentions. The political universe really does revolve around Donald Trump, and convicting him wouldn't change that. All it would do is mean that the political universe would revolve around the one president in history convicted and removed from office by the Senate.
That's why the probability of acquittal is 1. Not approximately 1. 1.
With that in mind, let's turn to the latest wave of Bright Line Watch's study of American democracy. And, here's your usual caveat that I'm in the "expert" sample, so obviously, their sampling procedure sucks, but I'm only one person.
Anywho, a basic reminder of where I stand on this stuff. American democracy is in a lot of trouble, and I am far less sanguine about democracy than most of my colleagues in political science. On any one dimension of democracy, I usually see things similarly to how my colleagues do, with some exceptions based on research specialization. However, I weigh the dimensions differently. In particular, I place a great deal of weight on checks-and-balances, and our capacity to recognize facts as facts. American democracy has broken down almost completely along those two dimensions. I consider them indispensable. And in fact, consider some of the other conditions that Bright Line Watch examines, such as equal voting rights. When I answer that one, I acknowledge that we do not have equal voting rights. Based on what, though? The biggest infringements on equal voting rights that we have in the US come from structural factors like the Senate. Give me a choice between the Senate with a "common understanding of facts," or full, equal voting rights, but a total breakdown of facts, and guess which combination I'll take? That's right. I'm goin' with facts + the Senate. It isn't a hard choice. So, while the common, intuitive answer would be to place equal voting rights as the most central feature of democracy, that's just not how I weigh things. I consider the diminution of facts and the breakdown of checks-and-balances to be far more devastating to American democracy than my colleagues. Without facts, we have nothing, and an unchecked executive is about as dangerous as anything can ever be to democracy. That's why I think we're in such bad shape.
With that out of the way, the cool thing about Bright Line Watch is that with every new wave and every new report, they show something different. Here's what I find cool about the new study. "Cool," in the intellectually informative way. The new study breaks down assessments of how small-d democratic or undemocratic various actions and tactics are by Trump supporters and opponents. There's absolutely nothing surprising in what you see. Essentially, "democracy" gets redefined around convenience.
And, well, we can see this on display. We did, on Wednesday.
OK, let's take a moment here. An impeachment is not an assessment of whether or not the president acted "democratically." It is an assessment of whether or not the president committed "bribery," or other "high crimes and misdemeanors." However, as the testimony on Wednesday demonstrated, the history behind the "high crimes and misdemeanors" language in the Constitution was, to at least some conventioners, related to misuse of the office of the presidency to secure reelection through corrupt means, involving foreign powers.
So here's how a good faith debate would go. Impeachment for noncriminal actions would create a bad precedent. To avoid that, the bar should be criminality, in the context of vague constitutional language. This gets you into the mess of a distinction between "original intent" and "strict construction," but that's a topic for another post (although really, I ranted enough about how all "theories" of constitutional interpretation are rationalizations back on The Unmutual anyway).
Take Trump's name out of it, and that's a serious, legitimate argument! Now, could you secure a criminal conviction for Trump on what you have, regarding Ukraine, right now? That's less clear than a general abuse-of-power claim, so a higher bar for impeachment argument would be a way to get at this. This approaches Jonathan Turley's argument, but not quite. He went elsewhere, and... never mind.
The point is, you could have a legitimate debate, in the abstract, if you wanted to claim that you needed the kind of evidence that would secure a conviction on criminal charges for impeachment. Brush away anything that, philosophically, counts as abuse of power, improper behavior, etc., and simply assert that the bar is so high-- or rather, so low-- that really bad behavior simply doesn't meet the impeachment standard.
The Intelligence Committee hearings were hearings nominally about fact. See my previous comments about the degradation of fact.
The first Judiciary Committee hearings were supposed to be hearings about the principles of impeachment. And given the history of the "high crimes and misdemeanors" phrase, that is the history of a concept of democracy. So, as divided as Congress was on "fact," so were they on supposed principles of impeachment.
Please don't tell me you were surprised. Bright Line Watch's latest wave found, of course, sharp divides between Trump supporters and Trump opponents on whether or not the executive should have unchecked power. Duh! Sharp divides on voting rights, equal weight to votes across states (remember the electoral college?)* and other stuff.
Of course! If it benefits my side, it's democratic, and if it hurts my side, it sucks.
Right now, though, it's the Democrats who are telling themselves that they have "principles." Here's the key thing about principles, though. What do you do when they work against you?
Here's a fun, little trick. Every time one side has a majority by public opinion polling, that side points to the polls, and says, "my side must win or it's undemocratic!" Whine, whine, whine! The bigger their majority, the more certain they are to tout the polls, to whine if they lose, to search for some nefarious villain to blame, and so forth. But, are you always in the majority? You'll try to tell yourself you are, because that's how human psychological biases work, but you aren't. I work, of course, in academia. Home of self-righteous, woke lefties and the culture warrior politics of people looking for somebody about whom to do one of those obnoxious call-out tweets.
[Facepalm.]
Anyway, as a general rule, if you read a political science professor's blog-- even a snarky, contrarian blog like mine!-- you probably at least lean left. At the very least, you're not likely to be a right-wing culture warrior, yelling racist epithets at immigrants and obsessing over who's in the next bathroom stall, or whatever. Dude, just tap your foot like we all know you want to!**
See, this is called "equal opportunity" snark.
Where was I? Oh, yeah. Woke lefties. Remember 1996? Maybe not. I'm gettin' old. I remember it. You see, back in 1996, when Larry Craig was widening his stance and tappin' his foot to "The Macarena"*** in airport bathroom stalls around the country, the idea of gay marriage was so outre, so offensive to mainstream culture, that to be accused of supporting it was a horrible, terrible slur. To accuse someone of supporting gay marriage was like accusing someone of having once worn blackface. Sure, there were places around the country where people secretly approved of it, but you just didn't admit it publicly. In political science, our main survey, the NES, didn't even bother to ask about it until a few years later. No point. It was too unpopular.
So, to inoculate himself against the accusation that he might support gay marriage, Bill Clinton signed DOMA in 1996, to help himself get reelected. It was wildly popular.
You think you believe in going with the will of the majority? So, DOMA? How far do you want to take this?
Yeah, that's what I thought. It's all fine and good to point to public opinion, until you're in the minority.
My point? Belief in democracy is, for most people, conditional anyway. In the latest wave of Bright Line Watch's survey, we see this in interesting relief, just as we did last week. Facts? What are those? Checks-and-balances? Those are gone. There's my side and your side, and principles are evaluated on the basis of whose side they benefit at the time.
Yeah, that's Miles's law again. Where you stand depends upon where you sit.
Post-script on DOMA: Does anyone remember how the Democratic Party finally reversed on gay marriage and rejected DOMA? The answer is... [drum roll]... Joe Biden. In 2008, Obama was still being weaselly. Dick Cheney had come around to support gay marriage (gay daughter), but Obama? Nope. But, then Biden gave an interview, had a Biden moment in which he just blurted out his support for gay marriage, and that trapped Obama. So, if you want to know how the Democratic Party finally rejected DOMA and supported gay marriage, Biden did it. With a Biden moment. Anyway, there's that.
*Bright Line Watch breaks the Senate/electoral college out from more general violations of equal voting rights, but for me, the Senate is the 800 pound gorilla in the room, as far as vote weighting.
**Kids, go read about Larry Craig.
***I'm very, very sorry for that reference. I promise to listen to a lot of John Coltrane today in penance. Maybe some Miles Davis. Maybe a Hail Mary Halvorson or two.
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