Reflections on the Election bis

Donald Trump
The President-elect of the United States

The tone of my first reflections on the 2016 general election, written before voting began, was hopelessly smug and made unwarranted assumptions. I assumed that the data we had at the time were true and that it was pretty likely, though hardly certain, that Hillary Clinton would win the presidential election and that the Democratic Party would retake control of the Senate. To quote a former governor of Texas dispatched early in the primary season, “Oops.”

Readers have emailed to ask my reaction today. I have to say the morning has felt surreal: Steve Inskeep on NPR was discussing President-elect Trump’s invitation to the White House to meet with President Obama in the same reassuring tones I hear every morning. The weather, while not as fine as yesterday, is nice enough for an early November day. I got on with the routines of the morning. And yet going back almost a year, I have been writing with alarm about—here goes—the President-elect, noting the apparent connection between the Trump movement and the Leave campaign in the UK, criticizing his simplistic “winners and losers” way of looking at international trade and other issues, noting his unfortunate association with the so-called “birthers,” encouraging American readers to take the threat posed by Mr. Trump’s rhetoric seriously while reassuring foreign readers that even in a Trump administration the mechanisms of our constitutional system would constrain the executive, and calling out the anti-Semitic tropes in one of his more recent speeches, which, whether intentionally or not, clearly resonated with the most unsavory part of his base of support. So, you ask, how’s my morning going?

Here are some thoughts for what they are worth:

  1. When an election is over, the right thing to do is to give the winner a chance with a clean slate. Those who opposed Mr. Trump need to be grownups, particularly because he gave an appropriate, conciliatory victory speech last night.
  2. It’s too early to draw real lessons, I think. One thing I think we can say is that even if the FBI/Wikileaks fiasco played some role in the outcome, which is by no means clear, it would be a mistake for the Democratic Party to focus on that fact rather than on the reasons the party’s message didn’t resonate in large sections of the population.
  3. We need to reach out and listen to Trump supporters. I realized today that I’m not sure I know any. Isn’t that odd? It’s not healthy for the country to be as segregated politically as it is. Of course, Trump supporters need to listen to us, too. I am in the middle of Arlie Hochschild’s new book, Strangers in Their Own Land, which is her recounting of her deep dive into the world of rural Louisianans. It’s a good read, but it’s no substitute for actually reaching out on a personal level. Surely there must be some folks on my block, in my office, in my synagogue, or wherever who voted for Trump, and it would be good to hear what they have to say. It’s more difficult to see how to make this kind of contacts outside of one’s own communities. I suppose that’s what the Internet is for, in theory.
  4. The Democrats, and reasonable Republicans, in Congress should do what can be done to limit the damage to global climate change initiatives, and to prioritize this issue over nearly all other domestic legislative issues. I think we are likely to see an outright repeal of the Affordable Care Act and other unwelcome legislation, but those sorts of laws can come and go in a way the planet’s climate can’t.
  5. If I had to make a guess about one of the real drivers of yesterday’s outcome, I would guess that Middle America really, really does not like identity politics. “What?” I hear you ask. As I try to think through the mindset of Trump voters based on what I’ve read about turnout, demographics, etc., it seems to me that the country’s basic demographic majority, or a least its basic majority until now, is white, non-Hispanic, Christians (including nominal or “cultural” Christians), and it seems to me that for many of them, it feels deeply wrong to see the law and societal pressures used to benefit discrete minorities that operate politically as classic pressure groups, while at the same time being told, or at least hearing a message, that it is wrong for them to organize along the same racial or religious lines to advocate for themselves. I don’t have any fancy social science to support this, but it seems to me to draw together several strands: the strong dislike of so-called “political correctness,” the appeal of Trump to overtly racist and anti-Semitic groups, and the basic tension that must arise when a formerly dominant majority is not so dominant anymore. I am not saying that I think all or most Trump supporters are racists. I am saying that labeling their desire to organize as an interest group of their own as racist is part of what drove them to Trump in the first place. I don’t think the Democratic Party has an answer to this challenge yet. At least I don’t, except perhaps to suggest that everyone—members of discrete, traditionally disadvantaged minorities, white Protestants from Kansas—take a little more time to try to see through the eyes of the other.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

16 thoughts on “Reflections on the Election bis

  1. All good stuff. But don’t let the news media off the hook. If you were smug and made unwarranted assumptions, it was at least partly because you couldn’t escape their propaganda.

    1. Thanks, Sparky. I don’t think the data journalism was propaganda—I think it was either methodologically flawed (e.g., the Huffington Post’s percentages versus 538’s percentages) or else based on bad data.

      In the prior post I raised what I think is the more serious criticism of the press: it treated the election as entertainment. Since one party now will hold all the reins of government, it will be particularly important for journalists to take their role in our system more seriously for the next four years. Enough punditry. More news, please.

      1. Now that the Republicans are in power, Journalism will rediscover the great merit of “Speaking Truth to Power.” However, with all the revelations of the incestuous relationships between the media and the DNC, it is hard for me to see how they will regain public trust without being scrupulously unbiased.

        And I do not think them capable of that.

          1. It’s the “truth as you see it” part that’s the problem. The “truth as you see it” is not necessarily the truth. Unconscious, systemic bias is still bias. A significant segment of the major media in this country needs to work much harder on identifying and accounting for its systemic biases.

          2. ““Unbiased” does not mean “a pox on both your houses.” It means telling the truth as you see it.”

            I think this is wrong. “Unbiased” means that news articles present facts in an organized, unweighted fashion. People want to understand what’s going on. They do not care a rat’s behind about what the reporter thinks. The reporter is just some schlemiel with no more qualifications than that guy at the end of the bar.

            This is, of course, limited to news articles. In commentary, anything goes.

    1. It was just my own private joke. You probably know this, but for readers who don’t: bis isn’t often used in US legal materials, but it’s commonly used abroad. For example, the recast of the Brussels I regulation is sometimes called Brussels I bis. This was my way of saying that this post was a do-over of my pre-election post.

      A quick search shows that your maxim was used in the closing arguments in the Kvočka case before the International Criminal Tribunal for the former Yugoslavia, which goes to show that there’s always an opportunity for a good Latin maxim.

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