The Institutionalist's Dilemma
On trusting the process after it's openly failed
Sometimes when I am explaining the somewhat eclectic variety of topics I write about in my newsletter, compared to the work I did at other publications for many years, l joke that “I just ran out of ways to say the Senate shouldn’t exist.” I say “joke,” but it’s also a fact. I was blogging this in 2010. Nothing has fundamentally changed about how the Senate “works” since George Packer wrote the damning portrait of a dysfunctional institution that I reference in that old Salon piece. More than a decade later, Senate institutionalists still make up the majority of the Democratic caucus, and they still believe the way to make the institution work is not to change its rules but to somehow change the nature of the opposition.
So, in some sense, I gave up on the Senate. I spend less time carefully making the arguments for reforming it. I made them already, alongside lots of other smarter people with even better arguments, and the people in charge of the left-of-center party essentially tuned us all out, because they are institutionalists, and the institution can only be failed; it cannot be, by its very design, a failure.
When we all learned that the far-right majority on the Supreme Court plans to gut the right to privacy that undergirds legal abortion access in the United States, a few patterns emerged in people’s responses. Most liberals were furious. Others in the media were outraged—on behalf of the Supreme Court, because they feared the leaking of a draft opinion could undermine the public’s faith in the “legitimacy” of the institution.
Many of those takes were bad faith from conservatives sort of desperately reaching for a talking point, but some of them were quite sincere. This is the mindset of the institutionalist. It is important that people retain faith in our institutions, which does not mean that our institutions should work to earn people’s faith, but instead that people shouldn’t hear about it when they don’t. This attitude is especially common in lawyers, who, as a profession, turned “nothing is true, everything is permitted” into a professional ethic. And of course, many elected officials, and especially many Democrats, are lawyers
To their credit, most elected Democrats did not fret over the circumstances of the “leak.” By and large, they did their best to channel the fear and anger their constituents were feeling into useful political energy. Unfortunately, that sometimes looked like this, from Rep. Sean Patrick Maloney, a New York Democrat and the chair of the Democratic Congressional Campaign Committee:
This was probably the most ham-fisted (and hard to parse) example of the “vote harder” response to the news that the conservative Supreme Court majority plans to eliminate abortion rights this summer, before moving on to other rights in the months and years to come. “We can save our freedoms” as long as you, “stupid,” vote in November.
To paraphrase our former president, I want to be clear: “Vote harder” is not a bad message because it’s untrue. If more people voted for Democrats they would win more elections, and my preference is that Democrats win more elections than Republicans. “Vote harder” is a bad message because it’s annoying, and annoying people is a bad way to make them want to vote for you. At this point, it’s also clear that it’s bad messaging because it’s insufficient. A larger Democratic majority next year might pass a law protecting abortion rights. Barring a massive sea change in how Democrats govern, that hypothetical Congressional majority has no hope whatsoever of protecting that law from the existing Supreme Court majority.
One of the more consequential contradictions of the Democratic Party is that the vast majority of its staffers, consultants, electeds, and media avatars, along with a substantial portion of its electoral base, are institutionalists. They believe, broadly, in The System. The System worked for them, and if The System’s outputs are bad, it is because we need more of the right sort of people to join or be elected to enter The System. But when the party does manage to win majorities, it depends on support from a substantial number of anti-system people. Barack Obama defeated the Clintons with this sacred knowledge, before he started reading David Brooks.
Institutionalists, in my experience, have trouble reaching an anti-system person, because they think being against The System is an inherently adolescent and silly mindset. But believing in things like “the integrity of the Supreme Court” has proven to be, I think, much sillier, and much more childish.
In the beginning of Joe Biden’s presidency a lot of very intelligent people tried to come up with ideas for how to change the Supreme Court, which is poised to spend years eroding the regulatory state and chipping away at civil rights. Expand it, perhaps. Or marginalize it. President Joe Biden, a committed institutionalist, formed a commission of legal scholars—from across the ideological spectrum, of course—to investigate what ought to be done about it. They failed to come up with any answers. “Lawmakers,” the commission wrote, “should be cautious about any reform that seems aimed at the substance of Court decisions or grounded in interpretations of the Constitution over which there is great disagreement in our political life.” You might be mad at the Court because of the decisions it produces, but it’s essential that everyone still trusts the processes that led to them.
This was a white flag. I think some people in the White House have some sick hope that the end of Roe will galvanize the midterm electorate. Something like that may indeed happen. But if they wish to understand why the president has been bleeding youth support for the last year they should try to imagine these young people (and “young”, at this point, has expanded to like 45) not as the annoying and hyper-engaged freaks they see on Twitter every day, but as ones they don’t see anywhere, because, having been urged to pay furious attention by people in the party, they discovered that those people had absolutely no realistic plans to overcome entrenched, systemic obstacles to progress. Maybe some of those voters went back to brunch. I suspect many of them went back to work brunch.
The legitimacy crisis is that our institutions are illegitimate. For my entire adult life, beginning with Bush v. Gore, our governing institutions have been avowedly antidemocratic and the left-of-center party has had no answer for that plain fact; no strategy, no plan, except to beg the electorate to give them governing majorities, which they then fail to use to reform the antidemocratic governing institutions. They often have perfectly plausible excuses for why they couldn’t do better. But that commitment to our existing institutions means they can’t credibly claim to have an answer to this moment. “Give us (another) majority and hope Clarence Thomas dies” is a best-case scenario, but not exactly a sales pitch.