The ACA Survives, in One More Victory for Boring Old Liberalism

Plain vanilla American liberalism hasn't been particularly fashionable for a long time, and it certainly isn't now. Anyone who regularly consumes high-status media like NPR or the Wall Street Journal, or who spends any time at all in the Twitterverse, could well conclude that today's politics is mostly defined by a battle between a highly intellectualized, social identity-oriented, self-consciously "anti-establishment" left wing on one side and an array of conservative critics, both Trumpist and anti-Trumpist, on the other.

But when we shift our attention to what the government is actually doing, we see a policy-making apparatus that continues to be dominated by a familiar pragmatic liberal tradition representing the historical legacy of the New Deal and Great Society. The Affordable Care Act is one of this tradition's most important recent achievements, if it's appropriate to refer to a law passed more than a decade ago as "recent." And the Supreme Court's 7–2 decision, announced Thursday, upholding the ACA against what may well be the last in a series of major legal challenges only confirms the resilience of the center-left policy state in the face of dissatisfaction on both ideological sides.

The ACA is complicated. It's inelegant and kludgy. It was designed to patch up the most urgent perceived flaws in the existing health care system rather than to tear it down completely and construct a more efficient and coherent successor. It is easy for its strongest detractors to hate, but hard for even its strongest defenders to love.

And yet the ACA remains a representative model of policy-making because it had two critically valuable qualities: enough initial support to be enacted in the first place and a big enough constituency to protect it from subsequent retrenchment. For all of the well-argued critiques directed its way by dissenters on the left and right, neither side has demonstrated the ability to transform a purer ideological vision into achievable and sustainable policy. Decades of progressive attempts to replace the current health care system with a universal single-payer alternative have yet to bear fruit. Conservatives' philosophical opposition to government involvement in health care provision has historically been a politically potent force when working to block liberal reform proposals before they passed, as in 1994, or when mobilizing an electoral backlash immediately after enactment, as in 2010. But after Republicans gained full policy-making power in 2017, general anti-government sentiment turned out to be insufficiently strong to persuade enough politicians within the party to rescind the ACA's specific benefits once they had actually started flowing to the public.

This same pattern arises in a number of other issue domains besides health care: entitlement policy, education policy, environmental policy. The decades-long conservative project to redefine government's role in society has been largely unsuccessful, except for several rounds of tax cuts (never balanced by corresponding spending reductions) and a few smaller victories on the margins. Donald Trump abandoned previous Republican support for Social Security and Medicare reforms that had always been more effective at attracting damaging Democratic attacks than in producing actual legislative achievements. But Trump was hardly the first Republican leader to depart from shrink-the-government doctrine in search of votes. 

Conservative victories often amount to the successful obstruction of liberal initiatives, or even just a reduction in the rate of government growth, rather than actual rightward shifts in the direction of policy. As popular conservatism becomes more consumed with symbolic and cultural battles, such as the current conflict over the teaching of critical race theory in public schools, the movement's traditional primary objective of rolling back the modern welfare state is either moving down the agenda or increasingly delegated to the conservative judiciary rather than the elected branches of government. (As Thursday's ruling showed, judges may not always be much more eager to take on this assignment than executives or legislators have been.)

In the other ideological direction, an increasingly visible strain of progressive activism has certainly had a measurable effect on perceptions of the American political climate. But so far, its ability to directly impose policy has been mostly restricted to non-governmental institutions controlled by the highly-educated cultural left, such as media companies and liberal arts colleges. The new progressive style has yet to find a secure foothold in elective politics, even in Blue America—where are the socialist state governors? the leftist big-city mayors?—despite plenty of confident assertions that the Bernie Sanders campaigns and the AOC-aligned "Squad" foreshadow the near-term future of the Democratic Party. Conflicts in various left-dominated municipalities over police reform and defunding in the Black Lives Matter era, as well as other similar issues, suggest that there are still many unanswered questions about how this particular ideological framework can and will be converted into specific governing choices.

Traditional pragmatic liberalism is a perennial rhetorical target for people who think of themselves as committed to loftier ideals. On the right, social conservatives like Ross Douthat criticize it for lacking "a clear sense of moral purpose," suggesting that in our time it has become "somewhat exhausted." Purist activists on the left echo these themes, speaking of an age marked by the supposedly catastrophic failures of "neoliberalism" and representing the onset of "late capitalism"—implying that a non-capitalist future is surely soon to arrive.

But old-fashioned half-a-loaf liberalism has proven tough to replace. It's not just that revolutionary change is difficult to achieve in the American political system, though it is. There are also plenty of important constituencies invested in conventional liberal policy-making—classes of credentialed work-within-the-system subject matter experts, institutionalized interest groups that prize partial victories over none at all, and a large number of regular voters who hold moderately left-of-center views on domestic affairs and are wary of socialism and laissez-faire-ism alike. While critics on all sides yawn with impatience for the era of boring old liberalism to end, the boring old liberal ACA has just further entrenched itself, boring old liberals Joe Biden, Nancy Pelosi, and Chuck Schumer are working to enact more boring old technocratic incrementalist liberal policies, and boring old liberalism just keeps muddling through to prevail once again.

Consequences of a Kavanaugh Confirmation? Yes, in the Long Term

When a political event of any note occurs in the midst of a campaign season—and often when it doesn't—media commentators predictably lapse into extensive speculation about its likely effect on the outcome of the next election. As the nomination of Brett Kavanaugh to the U.S. Supreme Court moves closer to an endgame in the Senate, debates over the impact of a potential confirmation on this fall's midterms have become more frequent. Will one party's supporters become energized and the other demoralized as a result of the vote? Would Democrats benefit in November from a rejection of Kavanaugh's nomination, or does extending the process actually help Republicans rally voters in red states?

I remain skeptical that the Kavanaugh appointment, however it turns out, will exert a measurable effect on the outcome in 2018. The voters who care about the Court and have been following the proceedings closely are also the most likely to already be strong partisans and highly engaged in the election. Kavanaugh is not a popular nominee by historical standards, but views generally fall along existing party lines and about a third of Americans don't know enough about him to have an opinion either way. It's possible that a Kavanaugh confirmation will push Democratic enthusiasm for voting "through the roof," but Democrats (as well as Republicans) are already at historically high levels on that score this year. And we still have six weeks to go before Election Day, with plenty of opportunity for a new issue or crisis to redirect popular attention elsewhere.

But that doesn't mean that the events of this week, and next, won't have important long-term implications. Just as the Clarence Thomas-Anita Hill hearings of 1991 helped to inspire a then-record number of women to seek political office the following year, a Senate vote to confirm Kavanaugh despite the testimony of Christine Blasey Ford may turn out to be an important moment in the intersection of gender and party politics. This year has already produced a remarkable surge in the supply of, and demand for, female candidates in the Democratic Party, but a widespread backlash against Kavanaugh might help sustain this unprecedented mobilization of women in 2020 and beyond.

Today's hearing in the Senate Judiciary Committee also laid the foundation for another set of potential developments in the future. To the extent that it reflected a calculated strategy, Kavanaugh's combative demeanor toward Democratic senators and angry denunciation of the charges against him as a partisan conspiracy were apparently intended to rally Republicans to his enthusiastic defense—including a president who was reportedly dissatisfied with his nominee's degree of aggressiveness on his own behalf earlier in the week.

But there is a cost to dropping the cloak of non-partisanship and reserved judicial temperament en route to the Supreme Court, just as there is a cost to putting someone accused of sexual assault by multiple women in a position to cast pivotal votes on abortion rights and related subjects. Trump and other Republicans could have avoided these costs by quickly withdrawing Kavanaugh in favor of an equally conservative but less controversial nominee, but they are now in the position of either forcing their own party's moderate members to vote Kavanaugh down or setting him up to be a divisive figure on the bench for years to come. It's even conceivable that John Roberts—sufficiently concerned about the legitimacy of his institution to serve as the surprise swing vote upholding the constitutionality of the Affordable Care Act in 2012—will turn out to be less ambitious in charting a new rightward trajectory for the Court if Kavanaugh is confirmed than he would have been alongside a different appointee.

Trump, whatever his other qualities, is not known for being excessively occupied with long-term planning, and the entire Republican Party is now subject to Trump's win-the-day strategic mentality for at least the duration of his tenure as its national leader. That doesn't mean, however, that the rest of us can't take the broader view. If Kavanaugh joins the Court, the consequences may not be immediately visible in the election returns, but they will still stretch on for many years after the 2018 midterms have come and gone.

Think Politics Will "Get Back to Normal" After Tuesday? This IS the New Normal!

We've reached the stage of the presidential campaign in which everyone who's either a participant or a close observer has reached a state of complete mental overload. Colleagues, friends, and students have frequently remarked over the past week or two that they are desperate for the election to be over. This is especially true of Clinton supporters of my acquaintance, who nurture (perhaps unrealistic) hope that Trump and Trumpism will face a popular rejection on Tuesday that will expel both the man and his brand of politics from the American party system.

Given everyone's frayed nerves, it seems almost sadistic to suggest that less will change after the election that many might wish. If Trump somehow manages an upset, of course, the fallout will be unprecedented—even more so now that the events of the past few weeks have set Democrats up to view such an outcome as an effective hijacking of American democracy by the Russians and the FBI.

The more likely outcome remains a Clinton victory, though by less-than-landslide proportions. But here, too, the potential for political combustion is enormous. The entire Republican popular base is poised to go ka-BOOM in response to the ascension of President Hillary, and Republican leaders will see no choice but to ratchet up the vehemence of their opposition to a level that will even exceed that of the Obama years. For the duration of his presidency, many Republicans have viewed Obama as an arrogant Marxist incompetent who hates America and all that it stands for; they think all those things of Clinton, too, but add to them the belief that she is also a criminal who belongs in prison. The race among Republican members of the House of Representatives to be the first to file articles of impeachment against her promises to be a competitive one, and the GOP congressional leadership will face considerable pressure to engage in even-more-frequent acts of dramatic—and high-risk—confrontation.

We already know what the biggest fight will be. It hasn't received a great deal of attention in an all-Trump-all-the-time campaign, but the vacancy on the Supreme Court promises to serve as a particularly bloody partisan battlefield once the election is over. If the Republicans hold the Senate, it is likely that they will prevent Clinton from filling the Scalia seat for the entire four years of her term. While this would be an unprecedented act, there is simply no political or ideological incentive for any Republican senator to allow the confirmation of a fifth liberal justice. (Democratic hopes that the blockade of Merrick Garland would prove electorally costly to swing-state Republican senators this year seem to have gone unfulfilled, only increasing the likelihood of indefinite GOP obstruction.)

If the Democrats gain a majority in the Senate, the working assumption is that they will jam Garland, or a replacement Clinton nominee, through the chamber on a party-line vote. This is probably correct, but the political cost and pain involved is underappreciated. Any Democratic majority in the Senate is likely to be very narrow—it could even hinge on the vice president's role as a tiebreaker—and dependent on a few pivotal electorally vulnerable senators from normally Republican states, including Joe Manchin of West Virginia, Joe Donnelly of Indiana, and Heidi Heitkamp of North Dakota.

These Democrats will need to join with their more liberal fellow partisans not only to confirm the fifth liberal justice, but to invoke the "nuclear option" preventing a Republican filibuster of the nomination. This involves not changing the formal rules of the Senate—a process that is itself subject to the filibuster—but using a parliamentary point of order, sustained by a simple majority, that the cloture rule does not properly apply to Supreme Court nominations. (The previous use of the nuclear option in 2013 removed the filibuster for lower court candidates but left it intact for the Supreme Court.)

Regardless of what one thinks about the filibuster rule or its increasing use by the Senate minority, removing it by brute partisan force rather than via the normal procedures for modifying chamber rules adds fodder to what will be fierce Republican charges that the whole thing is an illegitimate power grab. If Democrats take majority control in January, they will face the choice of whether to invoke the nuclear option preemptively or wait until Republicans actually filibuster Clinton's Supreme Court nominee. There is some logic to ripping the Band-Aid off quickly, but red-state Democratic senators may prefer to wait for weeks or even months, giving Republicans the opportunity to amply demonstrate their intransigence before "reluctantly" concluding that the nuclear option is an appropriate response.

All of this will play out in an atmosphere of unconstrained partisan-ideological rancor. The stakes are indeed high—the formation of a liberal majority on the Court for the first time in 40 years is understandably unacceptable to pro-Trump and anti-Trump conservatives alike, while simultaneously representing an important potential legacy for a Hillary Clinton presidency that is likely to be prevented by congressional gridlock from enacting its major legislative priorities.

The election next week will resolve some important questions; the difference between the two presidential candidates is in many respects the biggest in living memory, and one will be president while the other one won't. But the acrimonious nature of party politics in the United States may only be reinforced by the outcome on Tuesday. Once the results are in, many Americans will return to their "normal" routine of only intermittent attentiveness to the world of politics. But those who continue to follow the daily march of events cannot count on the end of the campaign to provide a respite from the perpetual partisan battle.

Mitch McConnell Knows What He's Doing

Within hours of the news that Supreme Court Justice Antonin Scalia had died, Senate Majority Leader Mitch McConnell released a statement in which he asserted that "this vacancy should not be filled until we have a new President" because "the American people should have a voice in the selection of their new Supreme Court Justice." The political world has been consumed ever since with a debate over this claim, with dueling citations of applicable norms, constitutional provisions, and historical precedents flying back and forth over the Internet.

Some observers—not just liberals—have expressed surprise over McConnell's statement itself. Why, they ask, would McConnell publicly commit to such a strong position immediately after the Court vacancy appeared? Doesn't it open him up to the charge of engaging in partisan obstruction in violation of constitutional expectations? Even if he did wish to block Obama's selection, wouldn't it be smarter to wait until Obama made a nomination and base the case for opposition on a perceived flaw in the nominee?

My own conclusion is that McConnell's actions are quite rational, and probably the smart move. Here's why:


1. Democrats have been warning for 20 years or so that voters would punish congressional Republicans for their obstructionist ways. Yet the Republican Party stands today with a decided majority in both houses of Congress, having gained a net 13 Senate seats and 69 House seats since the start of the Obama presidency. House Republicans have not held this many seats since the 1920s. If you were advising McConnell, what evidence would you cite in order to argue that he was taking a big risk here?

2. It's rhetorically easier to fight over a principle than a person. McConnell doesn't want to get bogged down in a debate over the qualifications of individual candidates if he can hold to a more general position in opposition to the entire idea of a nominee in the first place.

3. If the Senate rejects a nominee based on a personal deficiency, Obama can counter by naming a replacement nominee who lacks that deficiency. The underlying obstructive impulse is actually exposed more by shooting down a diverse series of individual candidates than by holding to a single blanket objection to the process itself.

4. The Supreme Court is a sore spot for many conservatives, who complain about the insufficient conservatism even of previous Republican nominees like Souter, Kennedy, and Roberts. No justice nominated by Obama will be acceptable to the Republican base by definition. Why wait for months to assure conservatives that you will block a nomination when you can do it right away?

5. A "we'll reserve judgment until the hearings" approach would also predictably arise as an issue in the presidential nomination race, to the detriment of the Senate Republicans. Imagine Ted Cruz productively blasting away at McConnell on the campaign trail for failing to vow that any Obama nomination is unacceptable. It is likely that McConnell is not terribly interested in helping Cruz win the Republican nomination.

6. Most Republican senators are more worried about losing a primary election than a general election, and their behavior is understandable given these electoral incentives. Six-term incumbent Richard Lugar of Indiana lost a Republican primary by 20 points in 2012 after supporting both of Obama's previous Court nominees—even though they had occurred years before and did not change the ideological balance of the Court.

7. Democrats warn that a blockade of Obama's nominee will boost enthusiasm and turnout among Democrats in the next election. I'm skeptical that marginally participatory voters care that much about the Court, but even if they do, the issue works on both sides. Republicans will be equally—and perhaps more—motivated to protect the Court's conservative majority as Democrats will be to overturn it.

8. Might McConnell's move hurt vulnerable Republican Senate incumbents running for re-election this fall in purple or light-blue states? Perhaps—though I'm skeptical, and several such senators (Ayotte, Johnson, Toomey) have already endorsed his position—but even if they are, they can announce their support for a vote after winning their primaries.


We're likely to have an eight-member Court for a while. At the least, the Senate blockade is almost certain to hold through November, and a partisan split between the presidency and Senate majority in the 2016 general election will prolong the standoff even further. Republicans may be taking on some political risk with their hardball tactics, but that must be weighed against the risk faced by a Republican senator who provides a decisive vote in favor of a liberal majority on the Supreme Court. In the current GOP, such an act is tantamount to throwing one's career away.