Federal Courts and Nominations

How to end gridlock and ensure Democratic power — with a bold progressive agenda

Ambitious policy solutions can break through partisan paralysis and change America. It’s time to go big

Conventional wisdom was wrong about the midterms, but in a deeper way than most observers have yet realized. It’s not just that Democrats did better than expected, and the Dobbs decision and Trump-backed election-deniers weren’t the only reasons. A lot of things went into those results, which were more complicated than most narratives allow. Through the haze of conflicting post-election narratives, the possibility for a long-term progressive realignment can be seen, combining the government activism of Joe Biden’s major legislation (the American Rescue Plan, the Infrastructure Investment and Jobs Act, the Inflation Reduction Act, the CHIPS and Science Act) with the growing power of diverse social movements advancing racial, gender and climate justice, gun safety and more. As the younger voters who overwhelmingly support Democrats grow in strength, there’s a path out of current gridlock and polarization based on a progressive agenda. But conventional wisdom can’t even see it.

As I’ve noted previously — herehereherehere and here, among others — as far back as 1967, Hadley Cantril and Lloyd Free’s landmark book “The Political Beliefs of Americans identified a “schizoid” asymmetry in American politics: On the one hand, there’s a plurality preference for conservatism, on an ideological or symbolic level, while on the other hand there’s supermajority support for what the authors called “operational liberalism,” meaning big government spending to solve specific problems. That’s essentially what the Biden administration has delivered, as White House press secretary Karine Jean-Pierre recently summarized: “The most significant economic recovery package since Roosevelt … the largest infrastructure plan since Eisenhower … the most sweeping gun reform bill since Clinton … Landmark China competitiveness legislation that’s already bringing manufacturing jobs back from overseas … the largest climate change bill in history.”

The internal division that hobbled Democrats over the past two years was often presented as progressives versus centrists, but was really about good-faith actors (whatever their supposed ideology) versus bad-faith ones, most notably Joe Manchin and Kyrsten Sinema. As a result, many “Dems in disarray” articles clouded the public’s understanding, making it difficult to see how much got done despite that obstructionism. As Way to Win reported in its Battleground State Poll Readout, 78% of all voters couldn;t name anything Biden had done that directly helped them. All those people had received $1,400 stimulus checks, so the problem was much less that Biden and the Democrats hadn’t done enough than how little voters knew about what they’d done.

Democrats are in a good place politically, if they can get past that problem. Progressive economics are popular — including Social Security and Medicare, family leave, the expanded child tax credit and student loan debt forgiveness — as are progressive positions in the culture wars, where the Dobbs decision in particular exposed Republican weakness. On criminal justice reform, the phrase “defund the police” became a liability, but the actual policy it describes — reallocating funding to social workers, mental health and other social services — is highly popular. In one survey of Los Angeles voters, 75% of people in households with a police officer supported that policy.

So it’s not extremism that threatens Democrats’ prospects, but the opposite: lacking the boldness to secure the allegiance of young voters. My argument stands in direct conflict with New York Times columnist Thomas Edsall’s “What Really Saved the Democrats This Year?” which ludicrously ignores the Dobbs effecty, quotes only male commentators and frames everything in terms of a battle between “moderates” and “progressives.”

An overlooked popular foundation

My argument is founded on three key facts: First, Biden’s agenda — most notably the trifecta of the American Rescue Plan, the Infrastructure Investment and Jobs Act, and the Inflation Reduction Act — was grounded in the Biden-Sanders Joint Task Force Recommendations, which NPR described as the “Blueprint for a Progressive Presidency” and enjoyed almost universal Democratic support. Second, that the Dobbs decision and Trump-backed attacks on democracy fueled a backlash that reflects a historical turning of the tides in America’s culture wars. Third, that voters under 30 — whose  share of the electorate will only grow with each election cycle — favored Democrats by almost 30 points. Those are the voters who most clearly see the failures of neoliberal politics-as-usual over the past 40-plus years, particularly on issues like gun violence, climate change, mass incarceration, reproductive freedom and economic inequality.

While Republican control of the House will certainly stall things in the short run, the next two years could be crucial in laying the groundwork for a generation or more of progressive Democratic dominance on a scale not seen since the New Deal or the Great Society. The potential pieces are there — they just need to be put together, and the process of doing so has already begun.

“This cycle and election made clear that milquetoast, centrist approaches are ineffective and losing strategies — they just don’t excite new base voters and hold the middle,” Way to Win president Tory Gavito told Salon:

Candidates that ran on persuasive progressive platforms won up and down the ballot across the country from the Senate to state legislatures. The way to win is through offering voters — especially our Democratic base — bold agendas, ideas and solutions that will make tangible impacts to improve their lives and communities, and making an argument for these solutions to independents. We must remind voters that MAGA has nothing to offer but trumped-up culture wars, through the vision we promote on air to the talking points we share on the doors.

Gavito reiterated that Way to Win polling showed that a large majority of voters couldn’t name a single accomplishment that Biden or the Democratic Congress had achieved. That was a “wake-up call,” she said, but “also a massive opportunity heading into 2023 and 2024. … Democrats have a unique opportunity to tell and show voters how their actions and policies are making real-world impacts that are improving our economy.”

The best economic policy in 40 years

The main headwind Democrats faced this year was the inflation issue, which, as I wrote earlier this month, was both a worldwide problem for which that Biden and Democrats were not responsible and also part of a complicated story that showed lower-income workers doing much better overall, with more jobs, faster wage growth, rising home ownership and refinancing of existing homes. In other words, the U.S. economy was recovering well from the COVID shock and generally doing so in a healthier, more equitable manner.

This was a shared objective of the Biden-Sanders Task Force, reflected first in the American Rescue Plan, which economist Claudia Sahm called “the best economic policy in 40 years.” She wrote: “Yes, inflation’s been higher and for longer than expected by proponents of more relief like myself,” then adding further context: “If you look broadly at what’s happening in the U.S. economy — inflation-adjusted consumer spending, jobs, business investment and household balance sheets — it’s clear that Americans are winning,” which was not the case after the Great Recession.

When the ARP was passed, the U.S. economy was “still in a bad place,” Sahm told Salon. “We were just coming out of the omicron wave, the winter had been bad. There was no guarantee we were going to have the recovery or that it was going to be strong.” But in fact, she said, “we’ve had the first job-full recovery in decades,” in stark contrast to the “crushingly slow” comeback from the Great Recession of 2008.

After the Obama administration’s inadequate response, Sahm said, “Republicans came in and did austerity” which suited their donors just fine. “Wealthy people came back quickly. The stock market came back quickly. House prices, for those who did not lose their homes, came back. But the jobs did not come back, and long-term unemployment has disastrous effects on people’s careers — not just bad while you’re out of work, but bad for years.” If Biden’s plan accomplished nothing else, she said, the “job-full recovery” was the best policy used to fight a recession in decades.

Slashing child poverty

Unfortunately, the expanded Child Tax Credit in Biden’s plan — which cut child poverty by 30% — was only temporary, and later allowed to lapse thanks to Joe Manchin’s opposition, As I wrote in 2015, based on papers from the LIS Data Center, America has a terrible record in fighting child poverty, but it could easily afford to cut child poverty almost in half by enacting a $4,000-a-year child allowance. That would cost about $160 billion every year, but would  produce a net benefit of about $90 billion, since childhood poverty costs the country even more, with “lost productivity and increased crime and health care costs as primary factors.”

The extended CTC would have made us somewhat competitive with other rich nations, at a net annual savings of more than $50 billion. That’s what Joe Manchin blocked, based on shifting rationales that didn’t hold up to scrutiny in terms of either the experiences of other countries our America’s trial run under the ARP. Sahm told Congress in October 2021 that the CTC “would be the ‘biggest bang for the buck,’ supporting families now and investing in our next generation.”

The Child Tax Credit was allowed to lapse, Sahm said, because “Larry Summers convinced Joe Manchin that the child tax credit was inflationary,” a view she calls “absolutely absurd.” In an analysis last July, she explained: “Unlike stimulus checks that came out in a burst, accounting for 16% of disposable personal income in March 2021, the new Child Tax Credit was monthly to families and was 0.5% of income from July through December.” In short, it wasn’t a contributor to inflation, and was a crucial investment in the next generation.

The question here is not whether this example of “operational liberalism” works. The evidence is clear enough. The only real question is whether, or when, we can gather the political will to get it done.

Taking Trumpers seriously

But there’s another, more immediate barrier: The often ill-informed Republican base, which despite its affection for Donald Trump is nonetheless right about something. That’s the argument Dean Baker, co-founder of the Center for Economic and Policy Research, makes in “The Case for the Trumpers’ Anger.”

“There is no justification for the racism, anti-Semitism, homophobia and other forms of bigotry that Trump has cultivated since he entered politics,” Baker wrote. “But there is a reason why it suddenly has so much appeal,” that being the basic reality of how badly the non-college-educated majority of Americans have fared over the last 50 years or so.

If the national minimum wage had kept pace with productivity growthas it did for three decades prior to 1968, it would be $23 an hour. Instead, it’s still $7.25.

Consider this: If the minimum wage had kept pace with inflation since its peak real value in 1968, the national minimum wage would be over $12 an hour today, rather than $7.25. But if it had kept pace with productivity growth, as it did for three decades prior to 1968, it would be almost twice that, or $23 an hour. That would mean a couple working full-time minimum-wage jobs would earn about $92,000 a year — a very different world than the one we live in today.

Since only about 40% of adults have college degrees, Baker writes, “A large majority of the population has grounds to be unhappy about their economic circumstances in recent decades. Given this reality, suppose that the poor prospects for non-college-educated workers was the result of deliberate policies pushed by the people who control debates on economic policy, as in people with college and advanced degrees.”

In fact, that’s exactly what has happened, he argues. “The winners really did screw them and they have concocted nonsense stories to conceal that fact. … Of course, that doesn’t mean that every university professor or librarian was in on the scheme, but as a class these people have in fact put in place economic structures that redistribute from the less educated to those with college and advanced degrees.”

That analysis may be skewed, in that the prime movers weren’t upper-middle-class professionals but a handful of extremely wealthy elites, and the neoliberal worldview they promoted was surrounded by so much propaganda that it was difficult to see what absolute nonsense it was. But still, as a class educated professionals did go along with it, accepting much of that nonsensical propaganda along the way. So what can be done to remedy that now?

“Taxing financial transactions, starting with crypto, would raise lots of money that could be used for things like child care, and might also eliminate many of the big fortunes earned in the sector.”

“Democrats need to actively push policies that will reverse the upward redistribution of the last four decades,” Baker told Salon via email. “For example, cracking down on the bloated financial sector is a great place to start. Taxing financial transactions, starting with crypto, would both raise lots of money, which could be used for things like child care and might also eliminate many of the big fortunes earned in the sector.” He also suggests reducing prescription-drug costs “by publicly funding the research and making the resulting drugs and inventions available as cheap generics sold in a free market.”

In short, there are relatively straightforward things we can do, which in Democratic politics today are generally coded as “progressive.” That’s somewhat misleading, since their appeal would reach far across party lines. Baker certainly wouldn’t guarantee that such measures could bring white working-class voters back to the Democrats, but it could be crucial for securing the allegiance of younger voters, the potential foundation for decades of Democratic dominance.

The end of Roe and court reform

But economics — although certainly crucial — is only part of the story. For decades Republicans have relied on culture-war issues, abortion foremost among them. More precisely, conservatives have devoted immense energy and resources to controlling the courts, thereby enforcing minority views they could never democratically enact into law. But having finally realized their goal of overturning Roe in 2022, everything has changed. These culture-war issues have always relied on some degree of subterfuge, and the Dobbs blew a hole in all that, exposing the messy reality obscured by facile “pro-life” rhetoric. Voters in MichiganVermont and California overwhelmingly approved initiatives enshrining abortion rights in their state constitutions, while voters in Kansas, Kentucky and Montana (three solidly Republican states) said no to bans or restrictions. But this is clearly just the beginning of years of further struggle that will be about much more than abortion rights.

The extremist, anti-democratic Supreme Court is a massive problem, but most discussions about how to solve it have been overly abstract and hobbled by a limited sense of history. One exception is a new paper by David Gans, director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center, which proposes concrete potential remedies by drawing on the most compelling historical example we have. That was during Reconstruction, when Congress both expanded and contracted the size of the Supreme Court, limited its jurisdiction and expanded the power of federal courts to protect citizens’ rights. The most lasting and consequential impacts came from the last option, which he believes could guide us this time around. “When six Justices insist on rolling back fundamental rights and putting accountability further out of reach,” Gans writes, “Congress should do what it did during Reconstruction: employ its enforcement powers to pass landmark civil rights legislation that opens the courthouse doors and ensure the promise of justice for all Americans.”

To contest the radical extremism of the Supreme Court, says David Gans, “Congress should do what it did during Reconstruction … pass landmark civil rights legislation that ensures the promise of justice for all Americans.”

Gans told Salon that reforming the courts ws “about more than the composition of the Supreme Court.” While it’s unlikely that reform legislation can be enacted in the next two years, he said, “progressives in and out of Congress should use this time to develop a multi-pronged approach. The Constitution gives Congress powerful tools to reform our federal judicial system and to ensure that our federal courts — including the Supreme Court — uphold the rights and ideals that lie at the core of our Constitution, including liberty and equal justice under law.

“In this moment, progressives should think boldly about how to deploy these tools to fix a Supreme Court whose conservatives seem bent on decimating fundamental rights and equality. To build popular support, progressives should use every chance they get to make the case that the conservative super-majority of the Supreme Court is getting the Constitution dead wrong and that far-reaching changes are necessary to honor the whole Constitution’s safeguards and promises.”

Criminal justice reform

In contrast to abortion, an issue that has shone harsh light on the arbitrary or outright lawless actions of the Supreme Court, things are much more muddled on another crucial front: criminal justice reform. As I wrote earlier this month, crime and inflation were “two Dems-in-charge/situation-out-of-control narratives … custom crafted in the Fox News ecosystem” which the New York Times took a lead role in spreading farther across the political spectrum during the recent midterm campaign, “crowding out other contrasting narratives in the process.

New York was clearly the epicenter of this issue, and bail reform was a key focus. Early in December, civil rights attorney Scott Hechinger, who heads Zealous, a criminal justice reform initiative, co-authored a commentary on the bail reform question, specifically calling out Democrats who blamed it for midterm losses. “Research has established no connection between bail reform and any increase in crime,” he wrote, and “New York City has remained secure even though headlines could make one think otherwise.” Three of New York’s five boroughs “are among the safest 15 counties in the U.S.” he noted, while Nassau County, just east of the city on Long Island — where 64 mayors recently called for the repeal of bail reform — has twice since the law’s implementation been ranked the safest place to live in the country.

In short, the panic over a supposed crime wave and bail reform in New York was pure political bullshit. “Democrats lost because they ran from the truth about bail reform,” Hechinger writes, “amplifying lies instead of championing what should have been their policy win. In short, they made themselves indistinguishable from Republicans on this topic.”

That’s exactly what some misguided pundits and strategists consistently tell Democrats to do. But all evidence suggests the opposite is true. “Other candidates who told the truth about bail reform’s success and stood strong against fear-mongering won,” Hechinger notes, and that shouldn’t be surprising. As I noted above, the actual policy behind the notion of defunding police — meaning the reallocation of funding to social workers, mental health and other social services — is overwhelmingly popular.

The logic behind policies of mass incarceration is at least as bad or worse, as Hechinger noted in an email to Salon:

We invest more than any other society in the history of the world on policing, prosecutions and punishment. So if the current massive investments into these approaches actually worked, you’d expect we’d be the safest and healthiest society in the word. We’re obviously far from it, by police and politicians’ own admission. We need to follow facts and reasoned solutions, not fear: Why we need to abandon our current approaches that only further drive violence by creating environments of isolation, shame, economic deprivation, and violence — the very characteristics of overpolicing and prisons parallel the very drivers of violence itself.

The alternative already exists, he continued:

People don’t have to “imagine” what non-carceral, non-punitive, non-police responses to public health and safety look like. The safest and healthiest communities are those with greater community investments, not more police. One need look no further than wealthy white suburbs to see how substance use, mental health issues, interpersonal violence and conflict between and among young people are dealt with largely without police.

Even where conditions are bleak, proactive progressive alternatives have proven remarkably effective in reducing crime. Perhaps most important is restorative justice, a concept described at length in Lois Forer’s 1994 book “A Rage to Punish“:

Restorative justice programs recognize that punishment and prison neither heals trauma nor holds actors accountable. This is extraordinarily difficult and intentional work, with both the harmed party and the person who harmed and then ultimately with the support of community bringing both sides together to communicate, to see each other, connect, make agreements, set forth community based consequences, and focus forward. In Brooklyn, when survivors of violence are informed that the restorative justice program Common Justice is an option, they choose it over the normal process over 90% of the time. And recidivism rates among those who complete the program are near zero.

The second approach is violence interruption:

The “Interrupters Model” pays and trains trusted insiders of a community to anticipate where violence will occur and intervene before it erupts, work in neighborhoods and hospitals, meet with survivors to help and prevent retaliation, and work with people at highest risk for causing harm. Violence interruption works: There was a 31% drop in homicides and 19% in shootings in two Chicago districts where interrupters worked. And it’s significantly more cost-effective, especially when measured against outsized policing that has been proven by their own statistics not to work at all.

In short, the hot-button issue of crime, which Democrats have spent decades running away from, could actually be a winning issue for progressives if they can successfully cut through the hysteria. Hechinger concluded by saying we need to “understand things police enforce as ‘crime’ as public health issues — and that includes violence — that we, as a society, have failed to properly address, and can address.”

The public health framework

Seeing crime through that kind of public health lens fits with a broader argument I made last year and can apply to liberal or progressive policies more broadly: “[E]nvironmental healthracismgun violenceinjury and violence preventionhealthy housing, and reproductive and sexual health” are all recognized by the American Public Health Association as major areas of concern, and their list “also intersects with human rights in the field of global health, and deals with issues of income inequality, education, housing, incarceration, nutritional equity, literacy, health care coverage and access.”

The public health framework can also provide a coherent overarching narrative:

The challenge for Democrats and progressives is to do what Republicans and conservatives have been doing for decades: Craft a coherent ideological narrative that makes sense of what people already feel. But for Democrats, it’s not just about vague free-market fantasies, or romantic longings for a past that never was. It’s about concrete things people can do to empower themselves through government action, creating a future with more possibilities for all.

In the conclusion to Cantril and Free’s “The Political Beliefs of Americans,” the authors called for “a restatement of American ideology to bring it in line with what the great majority of people want and approve” which “would focus people’s wants, hopes, and beliefs, and provide a guide and platform to enable the American people to implement their political desires in a more intelligent, direct, and consistent manner.”

A public health narrative can make sense of the “operational liberalism” identified in that book and can address diverse social movements that energize Democratic base, as well as the multi-pronged project of court reform. It also speaks to the failures that led to such extreme economic inequality in America, as well as the disastrous failures of neoliberal policy that both enabled and sought to justify it. Adopting a public health framework to make sense of our politics and bring us together to solve our most difficult problems might well help Democrats win elections, but that’s not the point. Far more important, it could restore a common framework for overcoming the partisan polarization and political gridlock that seems inescapable today, but doesn’t have to be.

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