The Threat to Our Democracy isn’t Just Trump, it is the Republican Party

There has been a rightful lamenting of horse-race journalism in the liberal press when it comes to covering (a) the race between Biden and I2I4 and (b) the Republican “primary.” As Tengrain frequently reminds us over at Mock Paper Scissors , much of the criticism stems from the focus on the odds of winning or losing rather than the stakes of Trump getting his Electric Boogaloo on. Howevr, it isn’t just the stakes of another four years of pee hookers drowning our constitutional republic in their piss; it is the on going and substantial harm that the Republican Party is currently causing and will continue to inflict upon our democracy.

The damage that the party is causing occurs at all levels and in all branches of government. We’ll focus mostly on the judiciary and the caustic effects Republicans are having on our democracy through their judges, but we’ll also touch on gerrymandering. Luckily, all of this shows us the way to save our democracy: voting.

The Federal Judiciary

The Supreme Court seems to have personal political views and not the norms and traditions of our democracy should be rule of thumb. Precedent and something like starry decides us — I don’t know, I’m listening to podcasts like #Sisters in Law and Strict Scrutiny and I don’t hear good no more because old, so sue me — help us keep the law predictable and consistent and seemingly less politically motivated or corrupt by following prior decisions.

SEC v Jerkoffsky is a good case in point. The Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, first turned the legal world on its head by deciding that Jerkoffsky’s rights were violated when the SEC declined to charge him in a federal court and instead followed the time honored practice of bringing him before one of their many administrative judges to decide whether he misled his clients by overvaluing his hedge funds share holdings so they could charge more in management fees — who else overvalued assets to better their finances, hunh? In a federal court he could have been tried by a jury of his peers (unless his lawyers fucked up and forgot to request a jury trial like somebody else’s did). Jerkoffsky is a Republican activist, conservative radio host, and hedge fund manager, because of course he is. Obvious weaponization of the SEC, amirite?

Judging by the questionings the lawyers for the government and the plaintiff are getting by the Supremes, it seems pretty darn obvious that the authoritarian six may just possess the uncanny ability to squeeze a camel through the eye of a needle. They are casting about for some way, any way, to safeguard the sanctity of the privileged class by dismantling those pesky regulatory agencies that dare to infringe upon their hallowed profits while leaving us plebs at the mercy of the federal agencies that regulate us.

They are willing to tie their legal reasoning and argumentation into an infinitely complex Gordian knot to over turn the precedent of Atlas Roofing v OSHA, which ruled that the federal courts (the Article III courts, as in the third article of the Constitution that established the Judicial Branch of government) tried common law cases and that administrative law judges tried new statutory cases. The difference is that common law is based on years of legal standing and development and that new statutory law are established by Congress. In this case, when Congress discovered, low and behold, upstanding rich citizens would cheat — CHEAT I tell you — their customers in the security exchanges in order to make more money. Congress then outlawed such cheating by establishing a new statutory regulatory agency (the Security Exchange Commission, SEC) to develop the rules, ensure compliance, and adjudicate violations.

The point is here that our law is no longer consistent and predictable, which erodes the rule of law. The years long Republican assault on the federal judiciary demonstrates that it is the party itself, not just Trump, that is the threat to our democracy. No member of the Congressional Republican delegation can be thought of as being pro-democracy. If they were, they would’ve quit the party long ago.

Another, and perhaps clearer example of politics intruding on judicial proceedings in the North Carolina Supreme Court.

The North Carolina Supreme Court

Many states elect their judges including to their state supreme courts. Given that many of the judges are either openly affiliated with and are backed by a political party or have well known political views that align with one side of the spectrum or the other, it becomes really important for the rule of law, i.e. consistency and predictability, that precedents be followed.

The North Carolina Supreme Court provides a clear example of how dangerous it is when courts depart from our long held judicial traditions and norms. In 2022, the court ruled that the state constitution outlawed partisan gerrymandering and ordered that new district maps be drawn because of it. The elections later that year gave the court a 5-2 Republican majority that simply decided on its own that partisan gerrymanders were okay and summarily reinstated the maps. No case needed.

If legal decisions are directly dependent on the judge or judges who decide them, as this example from the North Carolina courts demonstrates, then no legal decision is binding. To the degree that success in life is dependent on accurately predicting the outcome and consequences of your decisions, rule by judicial whim and personal favor makes life impossible. When judicial favor are auctioned to the highest bidder, then there can be no justice and no law.

However, the news is not all doom and gloom. The rule of law and democratic norms can be asserted and defended as the Wisconsin Supreme Court demonstrates.

The Lessons of Wisconsin

You may recall that a lifetime ago in April 2023, the party controlling the Wisconsin State Supreme Court flipped to the Democratic Party for the first time in 15 years. In the 2022 elections, the Republican Party just missed a winning a super majority of the assembly but did hold on to both houses of the legislature. Of course, they immediately set about trying to impeach the newly elected Democratic judge. Luckily for us that effort fizzled.

Gerrymandered Legislative Districts versus State-wide Races

The two elections demonstrates the dangers that gerrymandering poses to our democracy. Going into the 2022 elections, Republicans held 61 assembly seats, Democrats, 38. Republicans managed to flip three seats with their gerrymandered map, so that the 2022 legislature was made up of 64 Republicans, 35 Democrats.

In April 2023, there was a hotly contested statewide race for a supreme court seat. Janet Protasiewicz won with 55% of the vote. You should be scratching your head and wondering how a statewide election could deliver the governorship and a state supreme court seat to the Democrats by wide margins and the legislature swings heavily to Republicans. Are Wisconsinites just that schizophrenic, or is the Democratic vote so diluted that it can’t deliver a majority in districts even though it represents an overwhelming majority of the citizens of the state?

Luckily, by winning statewide races, the statewide offices can check the partisan attempts of the Republican dominated state legislatures to further rig their elections towards Republican candidates. The new Democratic majority on the court should be able to mandate fairer legislative district maps for the 2024 elections.

Our best weapon for preserving our democracy is voting as Wisconsin and the make up of the federal judiciary (presidential appointments and senate approval) demonstrates. We need to get the vote out. We need everyone to understand that it isn’t age or immigration or abortion or war that should decide this election, it is democracy.