THE FRIDAY LIST

It is Friday again and the list of things you have done this last week in the struggle is growing.  Post your report today and it will become part of the official list.

Let's go folks.

THE NINTH CIRCUIT DECISION

This is the judgment of my son, Law Professor Tobias Barrington Wolff:

"I have just finished reading the opinion of the Ninth Circuit in the dispute over the anti-Muslim Executive Order. The opinion is beautifully written and appears tightly reasoned to me. A few parts of the case involve areas of law about which I do not have particular expertise (like the due process rights of non-citizens with substantial connections to the United States) and there is some room for debate about the Ninth Circuit's decision not to modify the scope of the TRO (though there is also substantial authority for that decision). But I think overall the court got it right.

I am not joyful, however. I think it likely that Steve Bannon crafted this EO with the expectation that it would cause chaos and elicit protests and then be enjoined by the courts. At the very least, I am not prepared to treat this as a victory so much as a reassuring confirmation that our courts remain strong and independent -- which is welcome -- coupled with a continuing sober awareness of the menace now occupying the White House.

This EO was never meant to be policy. It was not designed as policy, it was not vetted as policy, and it was not rolled out as policy. This EO was intended to achieve a strategic outcome. One sinister strategic story is that Bannon seeks to use the next terror attack on the United States as an opportunity to blame our federal courts for threatening national security and thereby to undermine the rule of law. A story that is less sinister but still dangerous and ugly is that Bannon seeks to use this clash to amp up nativist sentiment and inflame their base. The most alarmist story to tell involves references to the Reichstag fire and a deliberate orchestration of an attack on America in order to usher in martial law and full-blown fascist authoritarianism -- a scenario that I am not yet ready to treat as likely, but that I cannot wholly dismiss.

Whatever the agenda underlying these recent events, it is important to understand that this was never about creating policy. We would make a serious mistake if we were to view the decision of the Ninth Circuit as a victory in the normal back and forth between courts and policymakers about the limits of the Constitution. That is not what this is.

A FEW WORDS FROM PARIS

I do not wish to reevaluate the Obama presidency, nor is it necessary for me to repeat here a selection of the hideous things Trump and his minions are trying to ram down our throats.  My attention is focused on evidence of popular opposition and information about what each of us can do to strengthen that opposition and keep it alive, at least until the mid-term elections.  That is the purpose of my Friday Lists, the third of which I shall assemble tomorrow, despite being here in Paris.

I. M. Flaud yesterday posted a fascinating report by a Mennonite Pastor of a visit to the office of Senator Pat Toomey of Pennsylvania.  Here is the report:

“Just got back from a visit to Senator Pat Toomey's Johnstown office with 15 other Borough of State College & Penn State area people to talk about the immigration ban.
Here are my takeaways;
1. Everyone we spoke with was rattled. They have never experienced this much constant feedback. The phones haven't stopped since the Inauguration and they admitted they can't check voicemail because there is no pause to do so.
2. Letters are the only thing getting through at this point [Note: I've heard that postcards are better because they can impound letters for five weeks to check for contaminants]. Regional offices are a much better mail destination because the compile, sort, and send everything. DC mail is so backed up right now it takes twice as long to send things there.
3. Toomey's staff seem frustrated with Trump. They said his barrage of Executive Orders are not how government is supposed to work, and was what they hated during moments of the Obama era. One of them said, "we have a democratic system and process. Trump needs to stop behaving like a Monarch."
4. Our representatives are listening because people are raising their voices. This feels like no other political moment in recent time for them.
5. Toomey's staffers are far more empathetic than I assumed. Also far more technology illiterate (one asked me how to use twitter, and how we already knew about Toomey's published statement). They resonate that the immigration ban feels immoral and unAmerican.
6. Regional offices are not designed to handle this volume of unrest.
7. Personal stories matter. Tell the stories of people being impacted by arbitrary religious and ethnic legislation. Staffers want to know.
8. Don't stop. Do whatever small part you can do to keep raising your voice to your representatives. Not just this issue, but every way marginalized people are being (or will be) exploited under this President."

This is very good news, and judging from my inability to get through to the offices of Senators Burr and Tillis, I imagine it reflects the situation nation-wide.  Keep in mind that the people flooding and jamming the phones are almost certainly a tiny fraction of the constituency.  This battering on the doors of Senators and Representatives is clearly a cost and energy efficient way to have an effect.  We must somehow find the energy and commitment to keep it up for months, and then for years.  It is one of our best hopes of changing the direction of American politics.  Subtleties of argument and nuances of analysis are mostly irrelevant here.  Over time, the relentless barrage will have an effect, because it is like nothing people in politics have ever seen.

The silencing of Elizabeth Warren by the Senate Republicans was a gift, as was the refusal of House Republicans to support a Democratic-sponsored resolution noting that the Nazis targeted Jews in the Holocaust.  Every little bit of stupidity helps.

And now, a plea to my readers:  Please take a moment to post a comment mentioning some of the things you have been doing in the struggle.  These testimonials encourage others, stiffen their spines, reassure them that they are not alone.  Keep it up!

A CLARIFICATION

My remarks about Obama seem to have been misunderstood, so let me explain.  I am not suggesting that Obama should set the agenda for progressives.  I am not suggesting that he run for a third term after a four year interim [unconstitutional].  I am not suggesting that Michelle Obama run for office.  Here is what concerns me:  The only realistic way to stop the horrible things the Republicans are doing and plan to do, while also beginning the long-term progressive transformation of the country, is to take back the House.  This cannot be done merely by organizing and motivating the politically active segment of the left.  There are just not enough votes.

Let me give you some figures.  These are rough estimates only, but that is sufficient.  In 2016, there were more or less 220 million eligible voters.  Roughly 134 million, or 60%, voted.  In 2018, if the customary behavior of American voters continues, only 88-90 million votes will be cast.  Of the 44-46 million people who voted in 2016 but will not vote in 2018, fewer than half are Democrats, which is to say maybe 20 million [Republicans, who are on average older and Whiter and richer, are more likely to vote.]  The secret to taking back the House is somehow to motivate enough of those 20 million to stop Tweeting or Yelping, get up off their Barcaloungers, and schlep on over to the local voting site to cast their ballots. 

Now it is, I think, a pretty safe bet that not many of those who are marching and demonstrating and protesting and contacting their Representatives are among those 20 million low-energy voters.  And since the American electoral system is ordinal, not cardinal, there is no way for the intensity of their preference to be recorded.  The vote of an airhead who never gives a moment’s thought to politics counts for exactly as much as the vote of a dedicated marcher, blogger, donater, and protester.  So somehow we need to get a significant number of millions of men and women to do what they are not ordinarily inclined to do and vote in an off-year election.

This is where Obama comes in.  He has an unparalleled ability to fire up Democratic voters and get them to the polls.  If, as I suspect, large numbers of Trump voters will be bummed out by his behavior as President by the time 2018 rolls around and hence not inclined to drag themselves to the polls, we might have a really good shot at pulling off what is called a Wave Election.

That, and only that, is what I had in mind when I speculated about the possibility that Obama might throw his weight into the struggle.  Suppose all of this happens.  How much will it actually accomplish?  That depends in large measure in the character and political leaning of the candidates who are recruited to run for House seats [and also State Legislative seats], and this is where the energy and commitment of progressives plays a major role.  If we recruit and get nominated genuine progressives, then in a wave election they will transform the House.  Will Obama work to find and motivate genuine progressives?  No, that is not where his heart lies.  But we can!

THE NEXT TWO YEARS

The 2018 off-year elections are our best chance to fundamentally change the political landscape.  A major surge in Democratic Party turnout could take back the House and a number of state houses, and perhaps even flip the Senate.  In presidential elections, roughly 60%, +/- 3%, of eligible voters vote.  In off-year elections, roughly 40%, +/- 2%, vote.  If the Republican voters are unmotivated or disappointed in Trump or simply follow their usual pattern of behavior, while Democratic voters are unusually motivated, it does not take a mathematical genius to calculate the possibilities.  All of this assumes that no one’s mind is actually changed, just that many more normally Democratic voters bother to vote.  My reason for touting Obama as a useful motivator has nothing at all to do with my judgment of his policies or performance as President and everything to do with my evaluation of his capacity for bringing millions of low-energy voters to the polls.  Nor do I think that if he plays that role he will also somehow co-opt or influence the policy preferences of those who vote. 

I agree with everyone [including myself] who praises the grassroots coast-to-coast movement now being born in America.  This must be kept going, it must be enlarged, it must be developed, and it must put the wind in the sails of progressive candidates and leaders at the local, state, and national levels.  What is more, all of these movements [for they are many, not one] must look beyond 2018, even beyond 2020.  We must define long-term goals that seem unattainable now but may be well within our reach in four, six, or eight years [when I will be 91, sigh].

That being said, I remain convinced that Obama, if he can be recruited, is our best GOTV machine in 2018.  We can succeed without him, but with him our chances are better.  Remember, in the short run, we do not even need to change people’s minds.  We just have to make them get off their asses and vote.

WHERE WE ARE

Well, I have had a night’s sleep here in Paris and taken my morning walk [Jean Gabin and Yves Montand were not at their usual station in the row of Batobuses – I think they have gone south for the winter] so it is time to offer my reflections on the state of play after just over two weeks of the Trump presidency.

One thing is now clear.  Trump is a feckless, incompetent authoritarian would-be dictator, guided and manipulated by a quite competent, determined neo-Nazi.  Bannon seeks to destroy the relatively stable post-World War II international order and replace it with a Russo-American hegemony by the preemptive use of major military force.  This, in my opinion, would be dramatically worse than the existing American hegemony, which is terrible enough.  Domestically, he and the Republicans seek to undo every hard-won gain liberals have made in the last three quarters of a century.  Those who, quite understandably, were impatient with the caution and hesitation of Obama can now take a close look at what real implacable unrelenting bigotry looks like.  It is too early to tell whether the Courts will save America, but I agree with the thrust of Tom Cathcart’s suggestion that the elevation of Gorsuch to the Supreme Court might have the effect of pushing Chief Justice Roberts to the left.  Remember that Gorsuch will replace Scalia, leaving Kennedy as the swing vote.  It is the next appointment that brings devastation with it.  That is why Ruth Marcus wrote a plea to Kennedy not to retire.

What hope is there in the current situation?  Clearly, the answer is the unprecedented and apparently unrelenting mass mobilization of opposition to Trump.  The outpouring of people into the streets and airports is astonishing and greatly encouraging.  These demonstrations are stiffening the spines of elected representatives and giving us hope for a wave election in 2018 that will take back the House and perhaps even the Senate.  There is evidence that Trump cares excessively about polls and other public demonstrations of his popularity or lack thereof.  The demonstrations at Mar-a-Lago, for example, enrage him.  Keep it up.  Every evidence of opposition to Trump has value politically.

However, the demonstrations could badly use a leader, a focal point, someone in whom tens of millions of people can put their trust and behind whom they can rally.  I think it is clear that Bernie Sanders or Elizabeth Warren or Sherrod Brown or Keith Ellison is not that person, admirable as each ne is.  Like it or not, the only person in the United States currently with that sort of mobilizing star power is Barack Obama.  For that reason, I was very much cheered by his statement, issued through a spokesperson just nine days after the Inauguration, calling into question Trump’s attack on immigrants and Muslims.  Do not be misled.  Cautious, precise, restrained as the statement was, the issuing of it by the outgoing president so soon after the Inauguration was an extraordinary event.  I think it is quite possible that in the weeks and months ahead, Obama will slowly emerge as the titular leader of the revolt.  If that happens, I think we can win the House, perhaps win the Senate, win state houses and state legislatures, and mount a real progressive movement that will eventually go well beyond what Obama himself might endorse.

Well, Paris seems to have restored some of my natural optimism [even though it is cold and rainy here.]  Do not despair.  This is a fight we can win, and the winning of it will do more than restore the Status quo ante, it will definitively move us in a progressive direction.

J'ARRIVE

Susie and I arrived this morning more than an hour early [strong tailwind], wiped out, as old folks get after missing a night of sleep.  Paris was cold and rainy, but it felt like home.  Later on, I had an espresso [decaf] at the bar in our favorite café.  A waiter I befriended when last we were here greeted me, and asked after Susie [who was catching up on sleep in the apartment.]  I felt like a regular.

I spent some time on the plane trying to achieve a measure of perspective on the past two horrific but exhilarating weeks.  I think there is some good news to go along with a great deal of terrifying news.  Tomorrow, after I have had a night’s sleep, I shall try to write an extended post discussing all of this.  Suffice it to say, in anticipation, that the very best news is the scope and geographic spread of the on-going wave of protests against the Trump administration.  Keep it up!