[EL] When Politics Becomes Existential

Sun Feb 26 18:21:09 PST 2017

Determining which norms are most important, and which violations most egregious, is necessarily a matter of judgment. I do not wish to speak for Prof. Pildes, but treating such judgments as objective fact, closed to discussion, seems a good example of the "existential politics" he identifies. It may even be its root cause.

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From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of Smith, Brad <BSmith at law.capital.edu>
Sent: Sunday, February 26, 2017 9:03:19 PM
To: Douglas Carver
Cc: Election Law Listserv
Subject: Re: [EL] When Politics Becomes Existential

You do realize, Doug, that some people might see it differently, that not everyone is much persuaded by Ornstein and Mann, and that these are opinions, not facts that you offer, and that some people might consider you to be the one guilty of "false equivalency?" Or don't you?

I think that addressing this problem--which I think many of us do see as a problem--involves getting past exactly the attitude you display, of trying to decide who is most to blame and then insisting that everyone see it your way. That is not the recipe for addressing the problem.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Douglas Carver [dhmcarver at gmail.com]
Sent: Sunday, February 26, 2017 8:51 PM
To: Smith, Brad
Cc: Pildes, Rick; Election Law Listserv
Subject: Re: [EL] When Politics Becomes Existential

1) The piece was discussing transgressions in 2016 -- so going "back several years" is irrelevant in the context.

2) Mann & Ornstein demolished the fallacy that the destruction of norms has been "perpetrated by both sides".

3) One would hope that a listserve populated by people who are dedicated to the rule of law would be far more concerned with what McConnell did with the Garland nomination than with either of the examples used (and this is aside from the fact that the Ginsburg comment was hardly in the same class as Comey's actions -- and that interpreting the actions of Comey and the FBI as due to a perceived existential threat posed by Hillary Clinton is somewhat of a long stretch.)

You cannot discuss a problem unless you also are willing to discuss the parameters of a problem. Ignoring the most extreme example, and then falling into the false equivalence fallacy, will not get the Republic any closer to solving its problems, and will rather lead us away from solutions.

On Sun, Feb 26, 2017 at 3:27 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
Well, you could add a whole host of instances dating back several years, perpetrated by both sides. Given the space that one has to write an op-ed, however, you're essentially saying that no op-ed can be anything but "woefully insufficient."

I think, instead, that it best to consider Silberman's point and take the examples he gives for the points they make, rather than worry about making sure that the writer uses the examples you think are most important. "Whataboutism" actually doesn't add a lot here--it just prevents a discussion of the problem.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317<tel:(614)%20236-6317>

http://law.capital.edu/faculty/bios/bsmith.aspx<https://linkprotect.cudasvc.com/url?a=http://law.capital.edu/faculty/bios/bsmith.aspx&c=E,1,Trx-TZR7re0g2L1QblLDCZrMgAbauOdOYJ5W_6NR9kT__BrQ1rOP3GmujugxL39b_MbIebqYLVi7HpaI8ZqIqCm80gq9vF60JJ74ZXc484tVTG2FOnoU&typo=1>

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Douglas Carver [dhmcarver at gmail.com<mailto:dhmcarver at gmail.com>]
Sent: Sunday, February 26, 2017 4:50 PM
To: Pildes, Rick
Cc: Election Law Listserv
Subject: Re: [EL] When Politics Becomes Existential

Any analysis of this phenomenon as it played out in 2016 that does not include the blocking of the Garland nomination is woefully insufficient (apologies if it is mentioned in the WSJ piece -- I cannot get behind the WSJ firewall). I think Mann & Ornstein demonstrated pretty conclusively that this kind of "one from column A, one from column B" approach is part of the problem.

Douglas Carver
Albuquerque, NM

On Sunday, February 26, 2017, Pildes, Rick <pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu>> wrote:
When Politics Becomes Existential<https://linkprotect.cudasvc.com/url?a=https://electionlawblog.org/%3fp%3d91331&c=E,1,ffhJcRQVVARAeJVu6iAsueawU1o6mzEXmM65FZTymIeLLziT6UCtdm2HA7PWGhhaPOWP9Yf9-dDQT4SSyFtoMwrALMi85Axy5L2pakIqBWZPZWA,&typo=1>
Posted on February 26, 2017 11:29 am<https://linkprotect.cudasvc.com/url?a=https://electionlawblog.org/%3fp%3d91331&c=E,1,EHVmilQWMkfQSaPJZM9UWZGnM3_aHDRuXV4ShFGAZKgzXYbzVjYUPnaobk_iLMLyxjC5QFmN_BKPCOtY2cBv7XgLa3H1fwk5Dz90QfEpZJC1kdG9RL1BgQ,,&typo=1> by Richard Pildes<https://linkprotect.cudasvc.com/url?a=https://electionlawblog.org/%3fauthor%3d7&c=E,1,ZlrmRS1UfDAbWNYMZ4Ys7sqqlTEjCpgVrDIENPtjbfLLoFTFlpAnUQZ8bq4z8aGAMa_e25u7jofzldzalAgtNopyD4kTyAk29YnJTayeApCnBXoBgN0_PPZL&typo=1>
Judge Laurence H. Silberman has been a respected conservative judge for more than 30 years on the D.C. Circuit and has extensive executive branch experience as well.  Alarmed by the erosion of long-standing institutional practices and norms concerning the appropriate behavior of governmental actors, he took to the WSJ op-ed<https://www.wsj.com/articles/a-notorious-2016-for-ginsburg-and-comey-1487978570> pages and a recent speech to express concern about the way our most important legal institutions are starting to be deformed by today’s political environment and to “bend in the political winds.”
Although Judge Silberman does not use these terms, I would say what he is describing is the way in which we have entered an age of existential politics.  When politics is perceived to be existential (by one side or the other or both), the very identity of the country, or even possibly its existence in a recognizable form, is perceived to be at stake.  Politics is no longer a matter of ordinary disagreement about values and policy.  Losing an election is no longer a disappointing result that can be lived with in the knowledge that there will be other elections and other battles. The stakes are perceived to be much too high for that.  The outcome of elections are no longer seen to be potentially reversible in the next election.  This election is “our last chance” to keep our country as we know it.  Or the outcome of this election will destroy our country as we know it.
Once politics is widely perceived as existential, actions previously thought out of bounds become easy to justify.  Given the ends perceived to be at stake, many previously unacceptable means are justified.  Existing laws might still be complied with, but healthy democracies depend as well on a thick infrastructure of conventions, well-developed traditions, and norms that are at least as important as the formal legal architecture of government.  Yet if “this much is at stake,”  the pressure and temptation to override those conventions, traditions, and norms becomes overwhelming.
This is the framework within which I understand the two specific examples that  Judge Silberman raised.  First was Justice Ginsburg’s public comments about Donald Trump’s candidacy, which Silberman calls “as openly political as any justice has been in my memory — perhaps ever.”  Although Justice Ginsburg later apologized for crossing this line, the temptation no doubt came from her perception that Donald Trump posed a unique, even existential, threat to American democracy.  The second was the FBI’s performance throughout the Clinton email investigation.  Part of the reason James Comey appears to have made his 11th hour announcement of a re-opened investigation was to preempt leaks from lower level FBI officials — who no doubt believed those potential leaks justified given their perception of the unique threat Hillary Clinton posed to American democracy.
Existential politics does not just tempt individual public actors to override the constraints that traditionally bound their roles.  It also threatens to undermine the perceived integrity of the institutions in which these actors operate.  Indeed, Judge Silberman believes “[James Comey’s] performance was so inappropriate for an FBI director that I doubt the bureau will ever completely recover.”
If many people, on either side or both, continue to believe that American politics today is indeed a matter of existential stakes, we can expect to see more of the corrosion of the long-standing conventions, institutional self-understandings, and norms that have, till now, governed American institutional practices.
Judge Silberman concludes:
As I ponder the damage done in 2016 to both institutions, the Supreme Court and the Justice Department, I worry that it will be irreversible—that in the future, Supreme Court justices will be induced by aggressive reporters to make injudicious remarks, and that attorneys general (and deputies) will have difficulty limiting the FBI to its investigative role.

--
Dilexi iustitiam et odivi iniquitatem, propterea morior in exilio.

(I have loved justice and hated iniquity, therefore I die in exile.)

    -- the last words of Saint Pope Gregory VII (d. 1085)

--
Dilexi iustitiam et odivi iniquitatem, propterea morior in exilio.

(I have loved justice and hated iniquity, therefore I die in exile.)

    -- the last words of Saint Pope Gregory VII (d. 1085)
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