CHIEF JUSTICE ROBERTS, “NO MÁS”

CHIEF JUSTICE ROBERTS, “NO MÁS”

By:

LeRoy Goldman

July 1, 2019

Who would have ever thunk that Chief Justice Roberts would forever sully his reputation and the reputation of the Supreme Court by channeling Roberto Duran? In his second fight with Sugar Ray Leonard for the Welterweight Championship in 1980, Duran refused to answer the bell for the ninth round by turning to the referee and saying, “No más”. And that's precisely what Chief Justice Roberts did in his majority opinion last week respecting the two political gerrymandering cases upon which the Court ruled, Rucho v. Common Cause and Lamone v. Benisek. Duran never escaped his self imposed, ignominious surrender. Neither will Roberts.

In both cases the plaintiffs allege that gerrymandering violated the First Amendment of the Constitution, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Paragraph 2 of Article I of the Constitution.

This 5-4 decision is breathtakingly bold and breathtakingly flawed. We can all hope, and I expect, that it will not stand the test of time. It's bold and flawed in that it unequivocally rules that the claim of unconstitutional political gerrymandering is one that is not justiciable, not within the legitimate purview of the Federal Courts to adjudicate. That draconian conclusion flies in the face of numerous Supreme Court rulings on redressing impermissible political gerrymandering dating back to the landmark Court ruling in Baker v. Carr in 1962.

Baker v. Carr was the landmark case in which the Court established the principle that redistricting was in fact a justiciable issue thus enabling the Federal courts to hear and decide such cases. It was in Baker that the Court established the principle of One Man, One Vote. The majority opinion was written by Justice Brennan, and the vote was 6-2, with Chief Justice Earl Warren in the majority. Two years later the decision was expanded and reinforced by the Court's ruling in Reynolds v. Sims. After he left the Court Earl Warren called the decisions in Baker v. Carr and Reynolds v. Sims the most important during his 16 year tenure on the Court, and that's no small potatoes in the face of Warren's 9-0 opinion in the 1954 Brown v. Board of Education case that struck down the 58 year old Court doctrine of Separate But Equal in public education, and sounded the death knell for segregation.

And there's more. The Court's ruling here, whether intended or not, strikes at and narrows the scope of the Court's most important decision contained in Marbury v. Madison in 1803 in which Chief Justice John Marshall brilliantly established the Supreme Court as the preeminent arbiter and interpreter of the United States Constitution. In so doing Marshall established the enduring principle of judicial review, which he underscored in his opinion by stating, “that a law repugnant to the constitution is void, and the courts, as well as other departments, are bound by that instrument”.

Roberts' majority opinion could have been more easily understood, though not accepted, had it been a ruling on only Rucho v. Common Cause, the North Carolina case. That's because the gerrymandering in the Tar Heel state is one in which the Republicans have gone way too far. Prior to their taking control of the Governors Mansion and both chambers of the state legislature in 2010 the North Carolina congressional delegation was divided 7-6 in favor of the Democrats. After the GOP sweep and the 2010 census the resulting balance favored the GOP 10-3.

Thus a ruling by the five conservative justices only on Rucho could have been understood as a blatant act of partisan favoritism to the GOP by the Court’s Conservative majority. However, the other case, Lamone v. Benisek, is an example of political gerrymandering run amok in precisely the opposite direction. That case out of Maryland is one in which the Democrats redrew the congressional district lines in order purge Republican members of Congress.

What we've got here is bipartisan egregiousness that the Court now condones by fleeing the field of battle. In so doing it offers up canards by stating that the problem can be addressed by Congress or State Courts.

Congress has proven that not only will it not beneficially address this problem, It has also proven that it is the prime mover in worsening the problem of political gerrymandering. To believe, as Chief Justice Roberts opines, that an epiphany will cause it to reverse course is delusional.

While it may be possible for state courts to ameliorate the deleterious effects of political gerrymandering, the fact of the matter is that by definition such a remedy relies upon and awaits actions in fifty states. It's reasonable to assume many of those actions will be in conflict with one another. Stop and think for a moment about how the Federal court system operates. Most cases taken up by the Supreme Court are ones that are intended to resolve conflicting opinions by the Federal Appeals Courts so that there is uniformity among the several states and in the nation. Resolving the worsening problem of political gerrymandering is a matter that requires a national set of rules that will fairly and uniformly govern the election of members of Congress from all states.

Roberts' notion of waiting for 50 different flowers to bloom or not in the various state capitols amounts to inappropriate and offensive buck passing, and he knows it.

I understand that this ringing condemnation of Chief Justice Roberts' ruling pulls no punches, and offers no comfort or excuse for its failure stand and deliver. But one need not rely on my assessment of its fatal flaws in order to reach such a conclusion. Here are the central tenets of the dissent in Rucho and Lamone from Justice Kagan. In the aggregate they demolish Roberts' holding.

Justice Kagan states in part:

“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights. In so doing the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government. And checking them is not beyond the power of the courts. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

The 'power' James Madison wrote, 'is in the people over the Government, and not in the Government over the people.' Free and fair and periodic elections are the key to that vision.'

Partisan gerrymandering of the kind before us not only subverts democracy (as if that weren't bad enough). It violates individual constitutional rights as well. That practice implicates the Fourteenth Amendment's Equal Protection Clause. And partisan gerrymandering implicates the First Amendment too.

So the only way to understand the Majority's opinion is as follows: In the face of grievous harm to democratic governance...the majority declines to provide any remedy. For the first time in this Nation's history the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.

First and foremost, the majority says, it cannot find a neutral baseline from which to measure injury. And second the majority argues that even after establishing a baseline, a court would have no way to answer 'the determinative question: How much is too much?'

But in throwing up its hands, the majority misses something under its nose: What it says can't be done has been done. Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims. And that standard does what the majority says is impossible. It takes as its baseline a State's own criteria of fairness, apart from partisan gain. And by requiring plaintiffs to make difficult showings relating to purpose and effects, the standard invalidates the most extreme, but only the most extreme, partisan gerrymanders.

This Court should have cheered, not overturned, that restoration of the people's power to vote.

The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.

The majority's most perplexing 'solution' is to look to state courts. But what do those courts know that this Court does not? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn't we?

Of all the times to abandon the Court's duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court's role in that system is to defend its foundations. None is more important than free and fair elections.”

Justice Kagan's dissent makes clear thankfully that Roberts' ruling is fatally flawed. That It will not stand is clear. How long it will take for it to fall is not.

Regardless of that there is more to be said on political gerrymandering's twin, racial gerrymandering. Racial gerrymandering and its constitutionality was not part of the Court's decision last week in the Rucho and Lamone cases. But make no mistake about the relevance of racial gerrymandering to both the problems gerrymandering pose to free and fair elections and the corrosive way it interacts with political gerrymandering.

The hard fact of the matter is that political gerrymandering and racial gerrymandering are two sides of the same coin. Stuffing the gerrymandering genie back into the bottle necessarily requires dealing with both of its forms—political and racial.

The genesis of racial gerrymandering, government ordered creation of so called Majority-Minority congressional districts, grew out of the 1982 amendments to the 1965 Voting Rights Act. Those amendments say that if racially polarized voting exists and if a Majority-Minority district can be drawn, then it MUST be drawn. A Majority-Minority district is one that must have a large majority of minorities within its borders. These minorities are almost always Blacks or Hispanics. And it is the case that overwhelming numbers of Blacks and a large majority of Hispanics vote Democratic.

Thus the ever increasing number of Majority-Minority congressional districts are represented by Black or Hispanic Democrats. Today there are well over 100 such House districts, and that has been a treasure trove for minorities and for Democrats.

But not all of the news has been beneficial to the Democrats. Thanks to the Court's decisions in Baker v. Carr in 1962 and Reynolds v. Sims in 1964, wherein the principle of One Man, One Vote was established, it's necessary for all congressional districts to have essentially the same number of persons. And there's the rub.

If Blacks and Hispanics are required to be packed in very large numbers into Majority-Minority districts, the result is that there are far fewer of them for the rest of the state's congressional districts. That means all of the rest of the state's districts have a larger proportion of white voters, and that has proven to be a bonanza for the GOP. That excess of white voters is what enables the Republicans to gerrymander to their advantage. And that is the essential nexus that explains how the Democrats are the principal beneficiaries of racial gerrymandering and the Republicans are the principal beneficiaries of political gerrymandering. On balance the nexus between these two odious forms of gerrymandering has resulted in the creation of more Republican seats than Democratic seats.

Thus the only way to get at the deleterious effects of gerrymandering is to assault it in both of its corrosive forms. Rucho and Lamone attempted and failed to convince the Court that political gerrymandering was unconstitutional. Righting that wrong will have to await another day in Court. But how do we reform racial gerrymandering?

The answer is by recognizing that, like its kissing cousin, political gerrymandering, it too is unconstitutional! The Achilles heel of both forms of gerrymandering is that they both unconstitutionally cut across the bow of the First and Fourteenth Amendments to the Constitution.

In fact the Court came within a single vote of finding racial gerrymandering unconstitutional almost twenty years ago. The matter was before the High Court In a series of three cases decided between 1993 and 2001. Those cases were brought by Robinson Everett then a Duke University Law Professor and formerly the Chief Judge of Court of Military Appeals. Everett was a liberal Democrat with close connections to the African-American community in Durham, North Carolina. Everett deeply opposed racial discrimination against blacks, but he just as deeply opposed race-conscious policies that were designed to benefit one race over another. He believed that North Carolina's two Majority-Minority congressional districts were unconstitutional racial gerrymanders.

Judge Everett won in the first two cases, but lost the third and decisive case 5-4 when then Justice Sandra Day O'Connor switched her vote. It was a particularly bitter pill for Everett to swallow given the fact that in one of the previous cases Justice O'Connor had stated, “A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographic and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid.”

That outcome was two decades ago. Since then times have changed, and changed for the better. The American people have twice elected an African-American President of the United States. And he did not need a contrived district made up of overwhelmingly minority voters in order to win and win handily.

Moreover the notion that minority members of Congress like John Lewis, Elijah Cummings, James Clyburn, Marcia Fudge, Henry Cuellar, Jose Serrano, or Linda Sanchez can only win if they are placed in a congressional district with an overwhelming number of Blacks or Hispanics is patently absurd.

The composition of the Supreme Court is different today than it was twenty years ago. Another case challenging the constitutionality of the Majority-Minority districts may very well succeed. Were that to happen think about its consequences.

Since all Congressional districts must have essentially the same number of people, a Court ruling that found Majority-Minority districts unconstitutional would necessarily require that most of the minorities in those many districts would have to be placed in other districts. To a large extent those districts will be ones that the GOP has gerrymandered to its advantage. And then the overage of individuals in those districts will of necessity have to be moved to districts lacking sufficient numbers, the diminished former Majority-Minority districts. The net result is that all such affected districts become less gerrymandered and both the Republicans and the Democrats pay the price of the long overdue reform. How nice is that!

In 2007 in Parents Involved in Community Schools v. Seattle School District No. 1 Justice Roberts stated, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Chief Justice Roberts has unnecessarily dug himself and the Court into a deep hole in Rucho and Lamone. He needs to stop shoveling, take his own advice from 2007, and use it to end racial gerrymandering. Then we will see the entire row of gerrymandering dominoes begin to fall.

LeRoy Goldman

July 1, 2019

THE DYNAMICS OF THE 2020 ELECTION

By:

LeRoy Goldman

May 8, 2019 

 THE DYNAMICS OF THE 2020 ELECTION

When I spoke to you in early August of 2016 just before the presidential election you will remember that I did not paint a rosy picture. In fact I began that talk by asking you to raise your hand if you did not like having to make a choice between Donald Trump and Hillary Clinton. Virtually every hand in the room went up, including mine. We instinctively understood that in 2016 the political system and the two political parties had let America down. Most of us believed that no matter who won the election the nation would continue to go in the wrong direction. Without doubt that has been the case.

I wish I could stand here tonight and tell you that I'm confident that 2020 will yield a better result. I can't. So fasten your seat belt. And since what's coming this evening is ominous, let's start with a bit of humor.

A little boy goes to his dad and asks, “What's politics?” The dad says, “Well son, let me try to explain it this way: I'm the breadwinner of the family, so let's call me capitalism. Your mother, she's the administrator of the money, so let's call her the government. We're here to take care of your needs, so let's call you the people. The nanny, we'll consider her the working class. And your baby brother, we'll call him the future. Now think about that and see if that makes sense.”

The little boy goes off to bed thinking about what dad had said. Later that night, he hears his baby brother crying, so he gets up to check on him. He finds that the baby has soiled his diaper. The little boy goes to his parent's room and finds his mother sound asleep. Not wanting to wake her, he goes to the nanny's room. Finding the door locked, he peeks in the keyhole, and sees his father in bed with the nanny. He gives up and goes back to bed.

The next morning the little boy says to his father, “Dad, I think I understand the concept of politics now. The father says, “Good son, tell me in your own words what you think politics is all about.” The little boy replies, “Well, while capitalism is screwing the working class, the government is sound asleep, the people are being ignored, and the future is in deep shit.”

Beyond the humor, the hard fact of the matter is that this nation is in deep trouble—much worse trouble than most think. The reality is that what's at stake is whether or not this nation's unique experiment in self governance, individual freedom, and respect for and adherence to the rule of law will survive.

The real question isn't whether President Trump is unfit, a criminal, or both, or whether the Republican Party has imploded. And it's not a question of whether the twenty or so Democrats now seeking the White House can imagine a reality that is not rooted in slavish adherence to reverse racism, or whether the Democratic Party will follow the GOP into oblivion.

No, the question that counts is the one we refuse to face, will we be the citizens of this nation who are responsible for America's demise. That's where we're headed. It's a time no less dangerous than what we faced during The Revolutionary War and the Civil War!

And unlike our forebears in 1776 and 1861, the peril we face is not clearly evident. If it were more plainly visible, we would be far more likely to comprehend the danger staring us in the face.

Over that past quarter century we have become a nation divided. And the fingerprints all over this crime scene are bipartisan. They include those of Bill and Hillary Clinton, George W. Bush, Barack Obama, Donald Trump, and the likes of Newt Gingrich, Harry Reid, Tom DeLay, Nancy Pelosi, Mitch McConnell, Chuck Shumer, and Mark Meadows.

Most of us know that a nation divided cannot stand. Our divisions are now so deeply rooted that what we do is to spend time blaming each other for the mess we're in. The blame game never works. What it does do is to reinforce hatred and division. So now instead of Republicans and Democrats at both ends of Pennsylvania Avenue working together, they have learned it's simpler to hate one another and falsely accuse one another. That's why the Federal Government is paralyzed. And the print and electronic media are their accomplices. Just like the elected officials in Washington they too have segregated themselves into two waring armies more interested in reasoning backward from their predetermined conclusions rather than reporting the news regardless of whose ox it gores.

And we the people have taken the bait. Red Americans sit transfixed in front of Fox News in order to get their daily “Trump The Savior” fix, just as Blue Americans sit transfixed in front of CNN or MSNBC in order to get their daily “Trump The Degenerate” fix.

You don't have to take my word for the pervasiveness of this fatal national malaise. Earlier this Spring the Pew Research Center published another of its well researched studies that shines a bright light on how Americans view the future, specifically America in 2050. It ain't a pretty picture!

Most of those interviewed by Pew see a nation thirty years from now with a fractured political system, an endangered environment, and a weaker economy. On the economy Americans believe the national debt will have continued to explode, that the divide between the rich and the poor will have widened, and that the prospect for good jobs will have been dimmed by automation.

By a 2:1 majority Americans believe that the nation's standard of living will decline over the next three decades. A plurality of those interviewed believe that children will be worse off in 2050 than they are today.

It didn't used to be this way. There was a time when the Congress and the White House worked. They even knew how to work together. Working together is what the Founding Fathers intended to be the result of the Constitution they so carefully crafted. They intended that Federal power be shared and disbursed among the three co-equal branches of the Government. They intended that it be difficult, but not impossible, to pass new legislation. They intended the supremacy of the Rule of Law. They intended that the process of amending the Constitution be difficult, but not impossible. They intended that the President and the members of Congress would actually understand and observe their respective oaths of office which require them to preserve, protect, and defend the Constitution.

Come back with me now almost a half century to the Senate of 1973. I worked in the Senate then. I saw first hand how it functioned. Understanding how it worked then illuminates clearly why it doesn't work today.

Back then the Democrats had a big majority, 58-42. But it was not sufficiently large enough to shut off a filibuster. But guess what? We didn't have any filibusters. Instead the Majority Leader, Mike Mansfield, would schedule legislation by getting the Senate to adopt what was called a Unanimous Consent Agreement, a UCA. How did Mansfield get unanimous consent?

First of all the Republicans knew the day would come when they would have the majority and be running the Senate. And they knew, if they used the filibusterer to hamstring Mansfield and the Democrats, that the day would surely come when the Democrats would return the favor.

The second reason had to do with the diverse ideological make up of both parties back then. Of the 58 Democrats about a third of them were conservatives, mostly from the deep South, Senators like John Stennis of Mississippi, Sam Ervin of North Carolina, and Russell Long of Louisiana. Similarly about a third of the 42 Republicans were Liberals, Senators like Jack Javits of New York, Chuck Percy of Illinois, and Mark Hatfield of Oregon.

In order for either party to act in concert it had to first accommodate differing ideas from within its own caucus.

Today all of that is a forgotten relic of history. Today virtually every Democrat is Liberal, and virtually every Republican is a Conservative. They don't trust one another. Many of then hate one another. Most of them view compromise as surrender.

The 2020 election likely will not change that reality.

THE HOUSE OF REPRESENTATIVES

One of the few things House members agree upon is calling themselves, The People's House. Nothing could be further from the truth because we the people don't pick them. The reverse is the case. House members pick their voters so that most all of them are guaranteed reelection. It's called gerrymandering and it comes in two different forms, racial and political gerrymandering. Both forms achieve the same end. Members configure their district lines so that only one party has a chance to win in that district.

North Carolina is one of the most gerrymandered states in the nation. And Mark Meadows' district here in the mountains is the most gerrymandered district of them all. Our state is evenly divided between Democrats and Republicans. In 2016 Trump carried the state with just over 50% of the vote. At the same time Roy Cooper, a Democrat, was elected Governor by less than 1% of the vote. Yet in every one of our 13 House districts the incumbent won with 57% to 69% of the vote. That's gerrymandering Ladies and Gentlemen.

The GOP recaptured the House in 1994 for the first time in 40 years—40 years! Led by Newt Gingrich and his Contract With America, the GOP capitalized on voter fury directed at Hillary and Bill Clinton's failed effort to enact Health Care Reform. For the past quarter century the Republicans have maintained control of the House except for the elections of 2006, 2008, and last year when suburban voters vented their anger at President Trump, his persona, and his policies.

It's, of course way too early to predict how the House will go in 2020, but there's some handwriting on the wall that's worth looking at. Voter turnout in 2018 was the highest in a century at just over 49%. And it was highest in competitive races most of which were in the suburbs. Typically these districts are won by Republicans who tend to be conservative on economic issues but moderate on issues like reproductive rights and healthcare. These are the suburban voters, especially women voters, who voted Democratic in 2018 as a protest against President Trump and his policies. That's what flipped the House to the Democrats last year.

The truth is that the Republicans didn't lose the House in 2018. Trump lost it for them! How stupid is that?

If, in order to continue to feed red meat to his Base voters, the President continues this counterproductive drumbeat, put your money on the Democrats retaining the House of Representatives next year.

THE SENATE

There's no gerrymandering in Senate elections, but, like the House elections, they're rigged too. The rigging mechanism is money—prodigious amounts of campaign contribution money. In fact all senators spend more time each day of their six-year term raising money than they spend doing anything else. Think about that!

Before you get all hot and bothered about how wonderful any one senator seems, or how despicable another appears, take a deep breath and remember what they both have in common. They've both sold their votes and maybe their souls to the lobbyists who bankroll them while both of them attempt to convince you that they represent you. They're banking on the expectation that you're too dumb to figure out that you're being played for a sucker. Regrettably, too frequently they're right. Those most likely to be hoodwinked in this way are the zealots in both political parties who take as truth whatever comes out of the mouths of the senators they idolize.

If anti-Trump fervor enabled the Democrats to win the House in 2018, how come the Republicans still control the Senate? The answer comes down to coincidental luck. When all the votes were counted in 2018 the GOP gained two senate seats. Thus there are now 53 Republicans and 47 Democrats. The GOP maintained its majority in the Senate because of the 35 seats up for election last year only 9 were held by the Republicans. 26 were held by Democrats, making them far more vulnerable to losses. Democrats lost 4 of their seats, while the Republicans lost 2 of theirs.

However, what goes around, comes around. And next year the Senate tables turn. The Republicans will have to defend 22 seats, while the Democrats only have to defend 12 seats. That's advantage Democrats.

In virtually every senate election cycle most of the seats are safe for one party or the other. We pretty much know who will win those seats before the first vote is cast. The explanation is straightforward. Incumbents usually have a huge edge in name recognition and in campaign cash. Frequently they face an opponent who is weak, not well known, and/or cash strapped 2020 will be no exception. A significant number of incumbent Republican and Democratic senators will be safe and coast to reelection.

The balance will hang in the remaining states where the election will be competitive. My guess is that at the present time there are about 11 of these toss-up states. They are the ones to watch, and they are: Maine, New Hampshire, North Carolina, Tennessee, Georgia, Alabama, Iowa, Kansas, New Mexico, Colorado and Arizona. At the present time the GOP controls eight of these eleven Senate seats. Thus, the GOP is at greater risk. We can talk about any of the toss-up states during the Q&A, if you wish.

The Democrats can take control of the Senate by winning a net of three seats if they also control the White House, or by winning four seats if they don't. But what you can be sure of is that once all the votes are tabulated neither party will have the 60 votes necessary to shut down filibusters. And you know what that means—MORE GRIDLOCK.

THE PRESIDENCY

Before we try to look ahead to next year's presidential election let's look back at how Donald Trump won in 2016. No one expected him to win, not even Trump or his Campaign. 2020 will be different. If Trump is the nominee of the Republican Party, as seems certain, he will be running to win.

The key that unlocks the door to the White House is winning at least 270 Electoral Votes. Just winning the popular vote ain't good enough. Hillary Clinton and Al Gore did that in 2016 and 2000 to no avail.

In most states we know the winner of its electoral votes before the first vote is cast. Most states are routinely solidly Democratic, like California, or solidly Republican, like Texas. Thus it all comes down to who can win in the relatively few Swing States. In 2016 there were 8 Swing States: Florida, North Carolina, Virginia, New Hampshire, Ohio, Iowa, Colorado, and Nevada.

Trump carried four of them, Florida, North Carolina, Ohio, and Iowa, not enough to put him

over the top. But he also won three states that normally are solidly in the Democratic column, the Rust Belt states of Pennsylvania, Michigan, and Wisconsin. He won them by the narrowest of margins, by 75,000 votes out of a total in those three states of over 13 million votes. That's a margin of victory of about one-half of one percent!

In 2020 I believe the number of Swing states will be different. First of all Pennsylvania, Michigan, and Wisconsin can no longer be considered reliably Democratic. They are now in play. However, I believe that Virginia and Nevada no longer deserve Swing State status. They have become reliably Democratic. Finally, I believe Arizona, thanks to its changing demographics and Trump's bitter attacks on Senator John McCain, will put the Grand Canyon State in play next year.

Now you don't have to be a political junkie like me to know that after a quarter century of growing political polarization and gridlock that the only effective way out of the mess is for the two political parties to return to the formula that has sustained this nation for most of its history—trust, cooperation, and compromise. It's glaringly obvious that that is the only way forward when the nation is so closely and bitterly divided.

All of us are old enough to remember that the American people commonly relied upon divided government with a President of one party and a Congress controlled by the opposing party in order to force the kind of compromises that made sense and stood the test of time. It was so during the Administrations of Presidents Eisenhower, Nixon, Ford, Reagan, and George H.W. Bush.

Trump's opportunity to be an effective president, even a great president, would have required him to deliver an Inaugural Address that would have called for national reconciliation, and for him to have worked with the Democrats on the Hill to enact such a genuinely bipartisan plan. However, his polarizing inaugural did just the opposite, and, therefore, his Presidency was stillborn on January 20^th 2017.

Since taking office, he's proven that he's unfit to govern. He doesn't understand how to manipulate the levers of power in Washington, and that's essential for any leader who believes as Trump presumably does that those levers must be used to change profoundly Washington's direction. He does not understand or accept the constitutional constraints that necessarily limit the action of any president of the United States. He believes the prime directive of all those in the Executive Branch is loyalty to him personally.

His conduct in office has made a mockery of the oath he took more than two years ago that requires him, “to the best of his ability to preserve, protect, and defend the Constitution of the United States”.

No tweet storm can disguise that brutally disgusting reality. And so it would seem he's a sure loser in 2020. Perhaps, but maybe not. He has a pathway to a second term. His fate will be determined by the Democrats vying for the nomination, and whether or not they surrender their party to those among them whose dark side is no less corrosive than Trump's.

The question for the Democrats is whether from the twenty or so seeking the nomination they can nominate someone who does not kowtow to the Gods of reverse racism and gender discrimination that animate so many of the extremists in their Party. These extremists call themselves Progressives. Nothing could be further from the truth. They are modern day Jacobins who believe in and practice vigilante justice, not the rule of law.

This intraparty struggle will be ferocious and threatens to tear the party apart. If that happens, Trump will be the beneficiary.

Is there no way to reverse this fatal cycle of polarization? Happily, there is, and the way forward is found in a brilliant book by Philip Howard, The Rule of Nobody. In less than 200 pages Howard describes America's descent into a bureaucratic state without the capacity to make necessary choices and implement them. Howard goes on to chart a course correction out of this barrenness.

I'll give you a capsule summary of one of the many examples Howard gives us of government ineptitude, the inability to pull a tree out of a creek. In 2011 a storm toppled a tree into a creek in Franklin Township New Jersey that caused serious flooding. The effort to pull the tree from the water was blocked by the fact the creek was a “class C-1 creek” that required formal approval prior to any alteration to its natural condition. The flooding continued for twelve days and the town spent $12,000 dollars in an effort to get a permit to pull the tree out of the creek.

The problem in Franklin Township, in the puzzle palaces that line the Potomac River in Washington, and throughout America is that government officials don't have the authority to make decisions. Howard insists that it's imperative that government officials be given the authority that is commensurate with their responsibilities.

Doing that, Howard argues, requires rethinking how laws and their regulations are enacted. We've come to believe that the principal purpose of law is to tell people how to do things properly. Howard says that's wrong. He says the purpose of law is to prohibit actions that are improper. The difference between the two concepts is enormous. That's because the latter notion will free citizens and bureaucrats to make decisions like pulling a tree out of a creek, or not taking thirty years to fail to figure out how to build the I-26 Connector in Asheville.

Howard challenges us to think of law as,” a giant corral” that protects us from antisocial behavior and arbitrary state power. However, Howard argues that within the corral's fences, “people are free to pursue their goals in their way”. In other words the purpose of law is to say what you can't; do, not what you can do.

Now stop for a moment and think about whether Howard is on to something or not. If, like me, you think he is, then ask yourself whether his ideas would likely be embraced by Liberal/Democrats, while being rejected by Conservative/Republicans-or vice versa.

Of course not! The beauty of Howard's formulation is that it will appear reasonable across the political spectrum—because it is reasonable! And that creates the conditions that will make compromise and consensus possible again. It's the antithesis of the paralysis of polarization that today strangles this nation.

The remaining question is whether someone, anyone, seeking the presidency in 2020 will champion this simple, yet breathtaking concept. If so, that someone will get my vote and a whole lot more. 

LeRoy Goldman can be reached at: 

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