But for Maizlish, the biggest takeaway from the debate over the Compromise of 1850 as it relates to present circumstances is the danger of extreme polarization. “When representatives fall into making absolutist statements, there is very little room for compromise or progress,” he says. “That happened then and it is clearly happening now. And when representatives are fearful of challenging their constituents to think in terms of a larger good, and instead pander to their constituents’ narrow prejudices in exchange for votes rather than assuming the burden of national leadership for themselves, disaster is at hand. Moderates need to lead and compromise, but they need to ensure they’re compromising on the right matters, not just ensuring some weak ‘peace for their time’ that they win by caving to dangerous radicals, like those pro-slavery congressmen who refused to make necessary reforms.”
“One seldom recognizes the devil when he is putting his hand on your shoulder.” ― Albert Speer, Minister of Armaments and War Production for Nazi Germany
Cass Sunstein has an interesting review in the NYRB entitled It Can Happen Here. It’s a good, short read. The title of the piece, so you’re aware, is oddly chosen because Sunstein thinks “full-blown authoritarianism is unlikely to happen here [in the U.S].” So why name it that? I’m not sure.
Anyway, Sunstein’s review looks at 3 books that attempt to account for how Hitler and the Nazis came to power in the pre-WWII German liberal democratic republic.
These books, for the most part, tell the story from the view of the average working class German. It was ultimately the German people’s collective action and inaction that allowed Hitler and the Nazis to take and keep power. But the change (the fall into fascism), as we’re told, wasn’t a sudden thing—at least not in the awareness of the average German. The descent into tyranny was gradual. By the time most German people realized it, it was too late to do anything about it. Sunstein quotes a philologist who captures a set of common sentiments that many Germans seem to have had when reflecting back on that time:
…a German philologist in the country at the time, who emphasized the devastatingly incremental nature of the descent into tyranny and said that “we had no time to think about these dreadful things that were growing, little by little, all around us.” The philologist pointed to a regime bent on diverting its people through endless dramas (often involving real or imagined enemies), and “the gradual habituation of the people, little by little, to being governed by surprise.” In his account, “each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’” that people could no more see it “developing from day to day than a farmer in his field sees the corn growing. One day it is over his head.”
So it was an incremental descent into tyranny aided, as one writer put it, by the “‘Automatic continuation of ordinary life” that “hindered any lively, forceful reaction against the horror.” For me, it’s easy to see how this might happen in a democracy.
To be clear, if an election is an indicator of whom and what political party a nation supports (and it is), then Hitler didn’t have popular (majority) support amongst the German voters. The other parties combined, all more left leaning, garnered the majority of support. The problem was the left leaning opposition parities were divided and that gave Hitler’s Nazi party a united front in the German Reichstag (parliament) and the keys to power. Hitler and his fascist right-wing party came to power in 1933 and basically seized dictatorial powers that same year. The speed of things, confusion, mass lies, propaganda, and fear were all on Hitler’s side. An important set of things to keep in mind when thinking about how this might happen in our own time.
Certainly most Germans could see the fracturing of their democratic society (and its values) when Hitler seized full dictatorial control of the government so quickly. Some German’s actually welcomed the fascist authoritarianism. As Sunstein’s review points out, there were working class Germans who said (years after the fall of Nazi Germany) that the Nazi years were the “best years of their life.” So there were some Germans, knowing full well what had happened, who still admired Hitler and the life he gave them. When asked about the horrors the Nazi regime had carried out, like the murder of 6 million Jews, many of these Nazi working class supporters just dismissed that as Fake News. Of course reading this made me feel all the more pleased that Nazi Germany had been utterly destroyed.
I didn’t read the books involved in this review, so I can’t properly critique the gradualist theory. My theory is that initially a lot of Germans who hadn’t supported Hitler grew to support Hitler. Even if they weren’t initially comfortable with Hitler and how he’d seized power and his divisive, hateful rhetoric, they chose to make moral compromises, over and over, because of a booming economy (mostly via a massive stimulus in government spending on the military) and a perceived order and stability that initially, at least, were all very agreeable. Many other Germans, even among the political opposition, sold out politically and morally. They decided it was best to go along. A German Republican at the time of Hitler’s rise told a man who’d voiced a deep opposition to the Nazis, that he needed to learn to “Howl with the wolves.” An apt metaphor when you think about it. A pack of wolves, indeed, had taken over the country.
The problem, of course, was the Germans had made a deal with the devil, and the deal quickly became far more costlier than anticipated. Word was slowly spreading about the imprisoning (and murdering) of political enemies and the growing number of Gestapo raids and missing people (Jews AND fellow Germans) and their families and the suppression of individual rights. And so now the deal couldn’t be broken without a lot of death and destruction. The devil would get his due. The wolves would feast on the lambs.
One of the nice things about early morning jogs on the National Mall is all the small gardens and memorials you come across by happenstance. This morning, because of a construction project blocking my normal path, I was detoured down some steps and into a small garden tucked away near the 14th street bridge along the Potomac river.
It’s a beautiful memorial garden dedicated to George Mason of colonial Virginia, one of the Founding Fathers of the United States. A life size bronze statue of Mason sits on a stone bench beneath a long trellis that curves along the southern end of the garden.
Mason appears relaxed and contemplative. On the bench to his right is his hat and walking stick, and on his left are two books; one by John Locke and the other by Jean-Jacques Rousseau.
Mason was one of the three Virginia delegates to the constitutional convention of 1787 who refused to sign the final draft of the Constitution. Mason actually wrote a paper entitled Objections to this Constitution of Government. Mason cited a lack of a Bill of Rights as his chief concern. But he also wanted an immediate end to the slave trade. He would eventually get his Bill of Rights when they were introduced by James Madison during the First Congress of 1789. The slave trade with America would not end until 1808, and, of course, slavery within the United States would not end until the Civil War.
It was George Mason, by the way, who gave Virginia its official title of the Commonwealth of Virginia. For Mason the state’s name would indicate that power stemmed from the people.
You may have noticed some writing to the left of Mason’s statue, engraved in the stone on the back of the bench. Let me note, these words were written before the Declaration of Independence was published in July of 1776.* The words just might ring familiar to you:
All men are born equally free and independent, and have certain inherent natural rights…among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
— George Mason, May 1776
*The Declaration of Independence was written over the period between June 11th and July 4th of 1776.
This past Thursday’s Senate hearing was, as expected, a spectacle. I won’t go too deep into the politics and the performances, i. e. Senator Lindsey Graham, of those on the Senate Judiciary Committee, but I did want to note something I found disturbing.
Dr. Ford gave very credible testimony in which she said she was “100% sure” that Judge Brett Kavanaugh had sexually assaulted her decades ago. She was poised for the most part and provided specific details. She made an allegation, but beyond that we have no corroborating evidence to back up her allegation. From a legal standpoint that’s important. No one should ever face legal jeopardy over an uncorroborated allegation. But let’s be clear, these Senate hearings aren’t legal proceedings. This is a political process. These confirmation hearings are about fitness for office and that is the central question under consideration.
So we heard from Dr. Ford. She made an allegation. She has the right to make that allegation, and we should want to hear and assess what she has to say against a nominee who’s being considered for a lifetime appointment to the highest court in the land. And since the Court, as with Congress, has itself gotten so highly partisan and dysfunctional we should be highly concerned about not making it even more so. I would argue that all this “he (or she) is qualified for the job” talk is trivial and beside the point in considering any nominee for any federal court. Most nominees that come before Senate confirmation are “highly qualified.” But being qualified is basic. It’s pretty damn clear the nominations are made with party politics in mind, not judicial independence. In fact, a solid record of judicial independence, of not towing the ideological line, is likely to have your name removed from the consideration of the various partisan institutes that create lists of judges for consideration and send them to the White House. So a judge’s politics has a big play in all this…and we should all be concerned with just how much it plays into a judge’s decision making.
And this brings me to my concerns about Judge Brett Kavanaugh. At first, prior to Thursday’s testimony of Ford and Kavanaugh, my feelings were that unless we have some corroborating evidence we should not sink a nomination over an allegation. We should take this allegation seriously, but fundamental fairness to the accused is fundamentally more important in my view. Because any of us can be unjustly accused. People, I know this may be hard to believe, will sometimes lie to destroy other people. To be clear, I’m not saying Dr. Ford is lying, only that in my view you should have more than an uncorroborated allegation before you decide to act against someone. And that was my view before Thursday.
But then came Brett Kavanaugh’s Thursday testimony before the committee, and another area of concern about his fitness for office emerged in my view. I completely understand why Judge Kavanaugh would be angry over Dr. Ford’s earlier testimony before the committee. Kavanaugh believed he’d been unjustly slandered. I’d be angry too. But in defending himself Kavanaugh went too far in my view. You see, as Kavanaugh began talking, at first, I was very sympathetic and felt Kavanaugh’s nomination should be confirmed. But then he crossed a line. He began to heave hyper partisan attacks on democratic members of the committee and even claim some conspiracy by the Clintons and other left wing groups. He did most of this on the edge of a barely constrained rage. And with that my support for his nomination melted away.
And here’s why: Kavanaugh is being appointed to a lifetime position on the highest court in the land. His demeanor and temperament are absolutely part of any assessment for this office. Judge Kavanaugh is not new to Washington politics and knows exactly why he was nominated—because of his “conservative credentials.” So he’s no choir boy about the implications of his appointment for those who aren’t so conservative and those who vehemently disagree with his judicial philosophy. Kavanaugh knows full well that confirmations are a political process, which means it can be a blood sport. There’s a lot at stake and Kavanaugh knew this fully.
So what should he have done? Well, he should have vehemently defended himself, sure, but he should have demonstrated far greater restraint. America doesn’t need another supreme court justice who’s basically confirmed for all of us his deeply held animus for members of the political opposition—who represent, by the way, millions of his fellow Americans. Just imagine how Republicans would react if the shoe was on the other foot. We already knew why Kavanaugh was being nominated, but most of us, I think, had a faint hope that all judges might, just might, be able to sometimes put politics aside for the sake of the nation when forming their judicial opinions. I guess I’d like to believe that while Judge Kavanaugh may have a conservative judicial philosophy (and that’s fine) he could be independent minded and not a mere partisan in a black robe. But by any charitable account, Kavanaugh chose to make it clear he has a deeply held animus against members of the democratic party and that he will carry that animus to the supreme court with him. I don’t care what your politics are, I personally don’t think it’s a good idea to confirm a judge knowing the very basic idea of fundamental fairness, independence, and the impartiality of the nominee are in serious question.
Consider Canons 1 & 2 of the Code of Conduct for United States Judges:
Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. . . Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor.
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities
(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.
I cannot see how anyone could watch Judge Kavanaugh’s testimony this past Thursday and not feel that his fairness, independence, and impartially had been seriously compromised.
The members of the Senate Judiciary Committee represent states and party interests. None of us were surprised that politics openly influenced them or their decisions during this process. However, to watch a supreme court nominee vent his deeply partisan views was disturbing considering the position and power he will have for decades if confirmed.
The truly evil thing is to act in such a way that peaceful life becomes impossible. War damages the fabric of civilisation not by the destruction it causes (the net effect of a war may even be to increase the productive capacity of the world as a whole), nor even by the slaughter of human beings, but by stimulating hatred and dishonesty. By shooting at your enemy you are not in the deepest sense wronging him. But by hating him, by inventing lies about him and bringing children up to believe them, by clamouring for unjust peace terms which make further wars inevitable, you are striking not at one perishable generation, but at humanity itself.