September 19, 2020


by Hal Gershowitz

Comments Below

We’re just about there, this moment in the 233-year-old American experiment at which the nation shifts, or doesn’t, from the world’s longest enduring liberal democracy to the rigid embrace of age-old authoritarianism – a quick sashay from vibrant republican (small “r” intentional) governance to reactionary, if not authoritarian, rule.

America lost a treasure with the passing of U.S. Supreme Court Justice, Ruth Bader Ginsburg, a heroine in America’s pantheon of greats…talk about someone fighting above their weight.

President Trump and Senate Majority Leader Mitch McConnell rushed announcements within hours of her death that they plan to push through Ginsburg’s replacement before the next President takes office. It is remarkably telling and remarkably concerning.

First, let’s establish that it has been the position of the leadership of both political parties (including, of course, McConnell himself) that a Supreme Court vacancy that occurs in the final months of one Administration should not be filled until the new Administration is elected and in place.

McConnell, referring to President Obama’s nomination of Merrick Garland, said in 2016, “it was just too close to the election,” That was eleven months before an election. Even Senate Judiciary Committee Chairman, Republican Lindsay Graham, agreed. Listen to him, during the 2016 Presidential primaries, “I will tell you this: If an opening comes (on the Supreme Court) in the last year of President Trump’s term, we will wait to the next election.”

Ah, yes, but that was then, and this is now. Why the unseemly rush? Here’s why. Trump and McConnell and Graham do not think Trump is likely to win. If they were reasonably confident of victory next month, they would, well, do what they said they would do.

The people are a few weeks away from voting for the next President of The United States. Supreme Court appointments have always been a high priority for voters in America. After all, Supreme Court Justices can affect America long after any particular President has come and gone. While there is nothing in the constitution that precludes a President from making a Supreme Court appointment at the end of his or her term, it makes sense to accord deference to the next Administration, and in effect, the American electorate.

Ruth Bader Ginsburg’s influence on American life has been seismic, especially regarding how we perceive the role and the rights of women in America. Few today, disagree with the equal-rights-for-women principles for which she argued and won before the Court — few other than those who, deep down inside, still harbor the notion that women are best kept barefoot and pregnant.

Trump, just hours after Justice Ginsburg passed away, rushed to tweet that Republicans must fill the seat without delay. “We were put in this position of power and the importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation without delay.” (sic)

Presidential opponent, Joe Biden, had a somewhat different take, “Let me be clear that the voters should pick the President and the President should pick the justice for the Senate to consider. This was the position the Republican Senate took in 2016 when there were almost ten months to go before the election. That’s the position the United States Senate must take today when the election is only 46 days off.”  

Ruth Bader Ginsburg, herself, also weighed in just before her death. “My most fervent wish is that I will not be replaced until a new president is installed,” she told her granddaughter during her last moments. Why, one might ask, would that be Justice Ginsburg’s dying wish? She was not terribly partisan. Her best friend was Republican conservative Anton Scalia. That was her wish, I believe, because she knew American democracy was at stake. She seemed to be hanging on by her fingernails, holding out until a new President might be elected.

For those who wonder whether America is drifting toward authoritarianism, wonder no more. 

We are. When we are led, or misled, by a President who will try to ram through a Supreme Court nomination in the very waning days before an election —

or, who requires that vital public-health guidance to the people during a deadly pandemic be cleansed for political correctness —

or, who defines truth as being whatever he says, even when what he says is demonstrably and breathtakingly false —

or, when he slanders former public servants and war heroes because they oppose or disagree with him —

or, when in Orwellian fashion, he defines news that is not laudatory as fake news —

or, when he describes critical news media or political opponents and their political parties as “the enemy of the people” —

or, when he lies about the virus ravaging the nation and tells the people that everything is under control, and to go about their business as though there’s no danger when he fully understands the deadly threat —

or, who says, and probably believes, that he knows more about our enemies than the military leaders who lead our armed services —

or, who uses brute force to clear peaceful demonstrators so that he can strut through a public park and pose with a bible for a photo-op before a historic church —

or, who stages political rallies for the sole purpose of slandering political opponents and opposing parties —

or, who uses the White House, the National Gallery of Art, the Washington Monument, and other government property to stage garish expressions of self-aggrandizement worthy of a Heidi Riefenstahl extravaganza of another era and another place.

The V-Dem or Varieties of Democracy Project, coordinated in The United States by the Kellogg Institute for International Studies at Notre Dame University’s Keough School of Global Affairs, studies the health of democracies around the world. Its team includes a dozen researchers at eleven universities in the United States, Europe, and Latin America, and 31 regional managers and consults with over 2000 experts throughout the world. It finds that the United States is undergoing “substantial autocratization” — defined as the loss of democratic traits that has accelerated precipitously under President Trump. This is particularly alarming in light of what the group’s historical data shows:  only 1 in 5 democracies that start down this path are able to reverse the damage before succumbing to full-blown autocracy.

 “Executive branch respect for the Constitution is now at the lowest level since 1865,” said Michael Coppedge, a Notre Dame political scientist and one of the project’s chief investigators.

Brendan Nyhan, Professor of Government at Dartmouth College and co-director of Bright Line Watch, a group that routinely surveys hundreds of political scientists, and issues periodic assessments of the health of democracy in the United States, notes that democracy is in trouble when a President warns, “The only way we’re going to lose this election is if the election is rigged.”

“Democracy depends on both sides accepting the results of free and fair elections and willingly turning over power to the other side if they lose. “We’ve never had a president attack our electoral system in this way,” Professor Nyhan says.

Staffan Lindberg, a political scientist at the University of Gothenburg in Stockholm, Sweden, who also works on the V-Dem Project refers to presidential attacks on the pillars of democracy as “dictator drift,” and says it’s a common feature of authoritarian leaders around the world.

“That’s Erdogan in Turkey,” Lindberg said. “That’s Lukashenko in Belarus. That’s Orban in Hungary. That’s a slew of African dictators.”

Is it time to panic in America? No. It is time to be concerned. Yes, be very concerned.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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  1. Steve Prover says:

    I would be very hard pressed to identify anything with which I might disagree in this cogent brilliantly composed observation of the current stare of our government.
    Other habitual contributors will, I imagine, find this excellent commentary just another opportunity to voice their not so unique partisan positions. We may be at a critical point in devolution of this democracy. Should we join together to defeat this psychopathic demagogue? Absolutely.! Will we? Not a chance. Yes Yes I know. After decrying partisanship I have made my partisan position quite clear. Here we are. Two groups of super partisans riveted to our respective Tribal beliefs. Are we not better than this?

  2. susan duman says:

    There was no time to waste in writing this essay. You are so sharp, so clear.
    Thank you

  3. Michael says:

    Of all the columns I have read at this site this may be the most disappointing columns I have read.

    I get it, you hate, loathe, detest (and whatever other words you want to use) Trump.

    But your column overlooks a very, very important point. To wit, the likelihood of the Senate going Democratic in November. If that occurs that will have a profound impact even if Trump is elected. And given Ginsburg’s votes, there are millions of people who will want a Justice that is more conservative. The best chance is now.

    One final note. You failed to mention Trump’s respectful and measured comments when he learned of her death.

    • Reply to Michael: I, a former center-right Republican oppose President Trump. To Oppose is one of the rights we have in America. “Hate, Loathe and Detest” are your words, not mine.

  4. sprover says:

    Michael: How are you so certain what Trump said upon learning of RBG’s death…? All I heard was a statement written by someone else which he read.

  5. Steve Hardy says:

    This debate about whether a president should appoint a US Supreme Court judge close to a presidential election is purely political. Of course, the Republicans objected when the shoe was on the other foot. The Constitution specifies that the President appoints and the Senate confirms.
    It doesn’t specify whether there is an election a year, a month, or even a day away. A more interesting debate and worthy of discussion would be after an election but before a swearing-in. Would it be the President-elect or the current President?

  6. Roberta Conner says:

    Hal – I must say I have never read so much nonsense in any one of your essays before.

    Authoritarianism? Are you kidding? Conservatives like Trump seek maximum freedoms for American citizens – freedom of speech, the right to bear arms, freedom of religion, freedom from the burden of taxes and regulations. He has proven this belief over and over again by his very actions.

    It is the left wing socialist occupants of the present democrat party that seek to control our citizens with amazingly bogus arguments – aided by a criminally-complicit media – intended to curtail our freedoms as individuals.

    I wholeheartedly agree with Michael. Your choice of words and specific examples do NOT indicate a simple opposition to Trump. There is a fervent pitch in your voice that does smack of loathing and derision – regardless of what this American patriot has done – and continues to do – for his country.

  7. sprover says:

    Reply to Ms. Conner: Hearing voices while reading can be a serious sign of mental deterioration.

  8. sprover says:

    Reply to Michael: I understand you are displeased with this extraordinary essay… Instead of attacking the author while purporting to read his mind can you identify any lack of veracity in each of his observations/statements?
    I am doubtful.

  9. ELIEZAR BENJAMEIN aka Leonard Sherman says:

    Hal my respose to your essays has disappeared in the past few weeks are youj just erasing them or what Leonard ???

  10. Frank Berman says:

    There is irony affecting Joe Biden in the sad event of Justice Ginsberg passing. Supreme Court confirmations used to be about competence and integrity. Remember, Scalia was confirmed 98-0, Then Bork was next and Biden as chair of the Judiciary Committee led a vicious attack that had nothing to do with competence or integrity. It was sheer power politics and confirmations became essentially political after that hearing when Biden “borked” Bork; and “borked” became a verb under Biden’s leadership.
    Now, Biden and the Democrats do not like the power politics of today that they initiated. And, his insertion of power politics in confirmations may cost him the right to appoint a liberal justice.
    I mourn Ginsberg; but Trump and the GOP will appoint an excellent justice with integrity and competence and the SC will likely be conservative for a long time–just what Biden sought to prevent many years ago. And it will be due to power politics that he used so effectively those many years ago. He has no right to complain.
    Add to that Democrat Harry Reid getting rid of the 60 vote filibuster on judicial appointments and creating a new precedent in power politics. So, Biden and the democrats have no right to complain about Trump appointing.

  11. Mike says:

    To sprover

    Watch the video of Trump getting off the plane and being informed of RBG’s death. He was genuinely surprised and measured in his response. It was on several stations so I very sure of what I saw and heard. Melanie Trump followed that up with a respectful Tweet and his Press Secretary offered respectful comments.

    The issue I have with the Hate Trump crowd is the same problem I had with the hate Obama crowd. We are talking about the office of the President – not the person as President. And the hatred manifest towards the person impairs an individual’s ability to objectively assess a person’s actions. Confirmation bias will always impact how person’s actions are interpreted.

    And as I mentioned in my original response, the real issue driving this is the possibility that the Republicans will lose control of the Senate. If you want a Gorsuch type Justice, you want them to move now. If you want a Sotamayor Justice, you want the appointment delayed.

    So Hal, it is not that complicated and all the hyperbole militating for or against the appointment boils down to what type of Justice do you want on the Court.

    Personally, I hope Trump nominates a brilliant female who is more of a Constitutionlist than RBG. And then they can have the vote in December when lame duck Senators can vote their conscience without fear of election results. Respectfully, I know that some – perhaps many of the readers will hope for a different outcome.

    Given the importance of this judicial appointment for the next ten to twenty years, I hope the Republicans succeed. Like I said, many of you will see it differently. That’s life folks.

  12. Mike says:

    I welcome the opportunity to Sprover’s challenge regarding the veracity of the the content. For starters, I would suggest that you go back and reread the column.

    Most of Hal’s comments regarding the President deal with personal attributes versus his policies. I, and many other supporters of Trump, have gone on record about our disappointment in aspects of his personal conduct. That said, I think some of his policies have been positive.

    Criticizing John McCain was crass and in poor taste. Do I wish the Covid crisis would have been handled differently? Absolutely! And sitting for Woodward interview was just plain stupid!

    But when Hal points out the flaws in Trump downplaying the magnitude of the Covid crisis, he overlooks the fact that he had plenty of company. Or did he miss things like Nancy Pelosi encouraging tourists to come to China Town in SF, or Bill DeBlasio and Cuomo encouraging folks and to conduct business as usual in mid to late February and early March. Or perhaps Hal missed Joe Biden criticizing Trump’s travel ban from China as being xenophobic and an overreaction. For me, most of not all of our political leaders messed up in assessing the magnitude of the crisis – with the possible exception of Govs Newslme and Islee.

    Citing Trump’s reference to fake news is also pretty weak given the magnitude of news that in fact proven to be false. For example, Trump’s supposed comments about the dead in our military cemeteries was by all accounts false. Rep Schiff’s “incontrovertible” evidence of Russian Collusion, never got produced. And it is clear that much of the Russian Collusion story was made up and the entire Mueller investigation was based on a fraudulent report that was attested to by the FBI in filing for FISA warrant.

    While I am not happy about Trump’s personal attributes, I believe his policies have been much better than Obama’s or the policies we would have seen under Hillary.

    As a business owner, and as a member of various organizations of Presidents and CEO’s, I laugh when people cite Trump’s use of Executive Orders. They completely ignore how Obama used Executive Orders to advance cause could not get passed as laws.

    On foreign policy, most respected business advisors believe that someone had to stand up t the theft of intellectual property by China. Would I have handled the tariff issue differently? Probably, but Trump’s actions got the ball rolling. And while several Presidents talked about moving the embassy to Jerusalem, Trump actually did it – which is why, some believe he was also able to negotiate the recent Middle East Deal.

    While I respect Hal’s writings, I think he does a disservice when he fails to assess both sides of the issues. For example, in one of his prior articles, Hal cited the passage of the tax act as being bad legislation. I noted that I believed Hal overlooked some important points. First, the main purpose of the Tax Act was the repatriation of foreign earnings – which was in excess of one trillion dollars. Second, the Tax Act was not a tax cut for a lot of high income earners in Blue States because of the SALT limitations.

    With respect to this column, I think he has overlooked considering whether people would prefer Justices like Kavanaugh, Gorsuch, Roberts and Thomas, or Justices like Kagan, Sotomayor and Breyer. If they want the former group they want Trump to Act; if they want the latter group, they want to wait and see if the Senate flips. Not that complicated.

    And Hal, one final thought. Given your past being a part of the Republican Party, have you read a Cliff Notes version of the Democratic Platform. If so, do you think this country would be better off with this Platform. Just curious

  13. James Fisher says:

    I commend Mike for expressing the same thoughts I have had about Hal’s “anti-Trump” essays. He is normally so balanced and presents both sides of a position in a way that I usually have my eyes opened and feel I have been genuinely enlightened.

    I never get that sense when Hal writes about Trump. Any accomplishment seems trivial and any personality defects are magnified proportionally to prevailing herd or media mentality.

    Thank you Mike for expressing some widely-held views so eloquently.

  14. qua says:

    When I read of the passing of Justice Ginsburg I immediately
    reached out to my source in the WHITE HOUSE imploring them
    not to rush an appointment but to fly the flag at half mast and
    pay tribute to a fine lady who served her country proudly,

    I feared exactly what is taking place the political backlash of
    such a move. As expected over $100 million has been raised by
    the DNC with over a million donors.

    Sadly they have opened a Hornet’s nest.

  15. Eddie Whitehead says:

    I implore all of the rabid Trumpets, please, please, please do not drink the purple Kool Aid – the taste maybe sweet but the after taste is oh so potent.

  16. Frank and Toby Berman says:

    I refer you to the WSJ of today. An editorial echos my previous comment directly. And, it goes on to trace the tactics that Democrat senators have used to defeat gop nominees since Bork. Regardless of party we should all condemn the wholesale trashing of good people which has been done repeatedly from Bork to Kavanaugh. After all everyone who comes that far are high quality people.

  17. Chris Haedt says:

    Pretty Simple for me…we are voting in November for less government by the people or more government for the people. If Biden gets elected it will be the beginnings of a Democratic controlled country which leads to Socialism. I don’t like either candidate but I definitely prefer less government by the people for my children and grandchildren.

  18. Michael Gong says:

    I do hate, loathe and detest Donald Trump. Also deplore and abhor. Do I make myself clear?

  19. sheila says:

    This interview with Senator Sheldon Whitehouse of Rhode Island is the best explanation I’ve heard of what is going on with the Republicans re the SCOTUS vote.

    Roberta Conner, James Fisher, and especially, Mike and others, is this what you call freedom? Is this what you want for our country? Think about prior comments of of the Trump officials we trust who have been fired for speaking the truth about Trump: General Mattis, Dan Coates and others (both Trump appointees) – who have condemned Trump as unstable and dangerous to our democracy.
    Far from moving toward socialism, Biden will pull our country from the brink of autocracy — back to a semblance of normalcy.

    In this interview, Senator Whitehouse explains how dark money organizations are pressuring/controlling the Republicans — and why the ultimate goal is to control the courts:

  20. Irwin yablans says:

    Donald Trump is a fascist. He uses Hitlers strategies as described in the infamous “Mein Kampf”. The vilification of the press, attacking the intelligentsia, the big lie repeated again and again until it becomes truth.This is not hyperbole, Read this book, it is all laid out outrageously in its time as Trumps actions are now.
    This is no run of the mill demagogue. He truly believes in Eugenics and the superiority of the white race with a special emphasis on Nordic peoples.
    Germans in1933 were fearful of “socialism”,Bolshevism” and they chose To tolerate the”funny little man with the mustache” He would protect them from the “red Hordes” Hitler could be dealt with later.
    If you look back on past writings on these pages, you will see thatHal has always presented a fair assessment of Trumps presidency, in fact more approving than some would agree with. in Hal’s words “let’s give him a chance” we’ll this maniac has had his chance and the The result is a deeply divided and troubled America.
    I applaud Hal for accepting the scorn and derision of his peers in an attempt to tell the truth as he sees it. I know he pondered long and hard before coming to the obvious conclusion.
    The beast Trump must be defeated in November.

  21. Bob says:

    200,000 dead from COVID-19 and Trump said
    “It is what it is”

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