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Democrats Embrace Two (More) Bad Ideas

Proposals for reparations and court packing are simplistic and potentially toxic.
March 11, 2019
Democrats Embrace Two (More) Bad Ideas
(Photo by Aaron P. Bernstein/Getty Images)

Megan McArdle defines a “Washington Issue,” as “a policy proposal with negligible impact on any real problem that nonetheless gains currency because it can be explained to voters in less than a minute.” Even better if it can fit on a hat or a rally chant.

So we get the wall, the Green New Deal, universal health care, wealth taxes, and pledges to break up the big tech companies.

But the term “Washington Issue” does not fully capture the profoundly unserious nature of our current politics in which politicians rush to embrace ideas without (1) any realistic prospect of success and (2) without any remotely plausible idea of how the proposal would work in reality.

The defense typically offered is that the proposals should be taken seriously but not literally, because they are “aspirational,” a notion that covers a multitude of political sins. Proponents insist that they be judged by the loftiness of their intentions, not the sordid details of reality; the gesture is what counts, not the details.

Of course, the appeal of simplistic if impractical campaign themes is obvious. Donald Trump, after all, sits in the Oval Office (at least on occasion).

What’s less clear is the Democrats’ attraction to (or inability to resist) ideas that are both simplistic and politically toxic. Let’s consider just two: reparations and court packing.

Polling on reparations has been definitive: more than three-quarters of Americans oppose the idea of paying reparations to the descendants of slaves. According to a 2015 CNN-Kaiser Family Foundation poll, reparations are favored by a majority of African American voters, but the idea is opposed by nearly nine out of 10 white voters.  (With all due respect, David Brooks’ recent endorsement is unlikely to change that dynamic much.)

And yet several Democratic presidential candidates, including Elizabeth Warren, Julian Castro, and Kamala Harris have signaled support for the idea, leading the Washington Post’s James Hohmann to wonder whether support for reparations would become a new litmus test of wokeness for the Democratic field.

As Hohmann noted, the idea is not only unpopular, it is also remarkably vague:

It means very different things to different people, and the devil is in the details. Many think of direct cash payments to African Americans when they hear the word. Others think more broadly of investments that are specifically made by the government to lift communities of color. What one person calls reparations someone else might just describe as strengthening the social safety net.

This vagueness reflects what a hot mess the issue could be. As George Will noted last week, reparations are fraught with political, cultural, and administrative problems. In effect, separation would put racial identity/victimist politics on steroids. Who gets to claim compensable victim status? The historic wrongs committed against African Americans are undoubtedly unique, but as the debate heats up, the inevitable question will be: Who else? The Irish? Jews? Native Americans? Asian Americans? And the question becomes even more tortured from that point on. As Will wrote:

If, however, you doubt that American discord can become much worse, try launching a scramble among racial and ethnic constituencies to assign varying degrees of guilt to others for varying degrees of injuries. Should reparations be means-tested, making affluent African Americans ineligible? To avoid using moral micrometers to measure guilt and injuries, should lump sums (taken from whom? by what mechanism?) be awarded to groups? Does it matter that 3.1 million African Americans identify themselves as of mixed race? Or that in the 2010 Census, 1.8 million people self-identified as both white and black? Who would administer reparations? And at what cost to social harmony?

The ads write themselves.

If anything, the idea of court packing may be even worse.

By any measure, packing the Supreme Court with an influx of new members through legislation is an attack on a bedrock “norm.” Back in 2017, when the idea was merely a gleam in the eye of a handful of academics, Ilya Somin warned that “the norm against court-packing [is] justified by more than just tradition. Court-packing is a menace to the role of judicial review as a check on the power of political majorities.”

But now some Democrats are on board with the notion, which seems more than a little off-message (if not hypocritical). For the last two years they have expressed legitimate concerns over Trump’s attacks on political, legal, and constitutional norms, and the issue could be especially powerful in 2020.

But, as Ralph Waldo Emerson once observed, “a foolish consistency is the hobgoblin of little minds.”

At an event at Yale last week, former attorney general Eric Holder was quoted as saying that “given the unfairness, unprecedented obstruction, and disregard of historical precedent by Mitch McConnell and Senate Republicans, when Democrats retake the majority they should consider expanding the Supreme Court to restore adherence to previously accepted norms for judicial nominations.”

Among presidential candidates, South Bend Mayor Pete Buttigieg has also pushed the idea of pumping up the court’s size. “It’s no more a departure from norms than what the Republicans did to get the judiciary to the place it is today,” Buttigieg argues.

As Plato once remarked after an especially trying day in the Agora: Oof.

You can see where this is going; but it’s also worthwhile remembering where the idea came from.

The last Democrat to actively push for packing the court was Franklin D. Roosevelt; and his failure was one of his presidency’s most dramatic defeats.  

After the Supreme Court issued a series of rulings against New Deal legislation, FDR and his team were outraged. His attorney general at the time, Homer Cummings, warned Roosevelt that the justices “mean to destroy us. . . . We will have to find a way to get rid of the present membership of the Supreme Court.”

So on February 5, 1937, fresh off re-election, Roosevelt unveiled his plan to add a new Supreme Court justice any time a sitting justice turned 70 years and 6 months old (up to a maximum of 6 new justices).

He had reason to be cocky. After the 1936 election, Democrats controlled the senate 76-16 and the House 338-88. But despite that overwhelming partisan edge, FDR’s plan died an ignominious death. (Democrats suffered catastrophic losses in the 1938 election, after the court-packing controversy and a weakening economy soured public opinion on the New Deal.)

Roosevelt had tested the limits of partisanship and found that he badly underestimated the strength of norms surrounding the constitution and the courts. It’s also notable that his idea was killed not by Republicans, but by his fellow Democrats.

In March 1937, Senator Burton Wheeler (D-Montana) warned against the precedent that FDR’s plan would create.  

Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.

More than 80 years later, Democrats should re-read Wheeler’s advice and once again scrap a truly awful idea.

Charlie Sykes

Charlie Sykes is a founder and editor-at-large of The Bulwark and the author of How the Right Lost Its Mind. He is also the host of The Bulwark Podcast and an MSNBC contributor.