I haven’t written anything political for a while, for two reasons. I read a lot of political opinion and analysis, and I think that in 2018, no one I’m reading is actually helping to make things better. And these are mostly very good writers who make their living writing about politics. If we are going to get out of our national funk, it won’t be because of any political writer. Second, we don’t know how things are going to go. If we are living through a weird aberration that is going to come to an end, then I should be writing one kind of piece; but if we are living through the end of traditional American political life, then I should be writing something quite different.
But I can’t let the Supreme Court’s decision in Trump v. Hawaii, the case upholding the Trump administration’s Muslim travel ban, go by without comment. There’s no question in my mind that the Trump policy is un-American, morally bankrupt, and self-defeating. But I’ve also previously given reasons for thinking that it’s constitutional. If we are living in a world where Trump and his supporters are trounced at the polls and the Republican Party steps back from its decade plus of norm-breaking radicalism, then Hawaii seems sound. But if we are living in Trump’s world, then Hawaii reads like the next Korematsu.
So which is it? I would like to be an optimist. But it is difficult now to see how we can get back to what was best about American politics: a big-tent two-party system where there was not much ideological difference between the two parties; where there was a good deal of compromising and logrolling; and where there was a basic elite consensus about America’s national interest and thus about foreign policy and, to a lesser extent, domestic policy.
Let’s also consider the impending retirement of Justice Kennedy and Senator McConnell’s shameless plan to confirm President Trump’s nominee—whoever he or she may be—before the midterm elections. In light of how the Republican majority in the Senate treated President Obama’s nomination of Judge Garland, I think that any procedural move the Democrats can use to delay the nomination until after the election has to be fair game. That said, when evaluating a nominee, and assuming the Democrats will be unable to stop the confirmation schedule, I think it is a mistake to treat, for example, abortion rights as a litmus test. If there is a litmus test, it should have to do with the structural constitution—federalism and the separation of powers—rather than Warren-era civil rights precedents. Easy for me to say, of course, given that my views on such issues are decidedly moderate.