The Moderate Mr. Biden and Other Fantasies

During the recent presidential primary and election campaigns the underlying question concerning Joe Biden was, given his druthers, how would a President Biden govern? One of the more interesting fantasies marketed by the Biden campaign was (and remains) that President-elect Joe Biden is a moderate whose election presages a return to normalcy. 

While it is true that Biden may be less radical than members of “The Squad”, that’s really not saying very much. 

The key to the Biden candidacy and likely governance strategy lies in the profound but under appreciated truth that politics lies downstream from culture. Today it is culture that dominates elective politics and in ways that are not obvious to most. That is not an accident. In campaigns, politicians speak in gauzy generalities and use cultural symbols to deliver emotionally satisfying messages designed to bring voters to the polls. But those symbols are typically anodyne and don’t really say much about how, if elected, a politician would govern. 

There is a big difference between what politicians say and what they do. Former Governor of New York, Mario Cuomo, used to say that “… you campaign in poetry, but govern in prose”. Which is where interest groups and party organization come into play. 

On the stump politicians routinely make utterly implausible promises that they inevitably fail to accomplish. But in the process the successful ones do manage to hold on to their base of support.  They do this by taking care of the interest groups that provided them with organizational and financial support.

These politicians go by the old adage “Don’t forget to dance with the girl who brung ya.” They take care of their interest groups–the girl who brung them. Those groups have specific policy goals that they would like to see accomplished, and they are not about to be satisfied with pie-in-the-sky rhetoric. They want results. 

In part, this is what accounts for the wide chasm between what politicians campaign on and how they actually govern.  The masses get the rhetoric; the interest groups get the policy. The mechanism that facilitates the process–the difference between campaigning and governance is the bureaucratic apparatus of the Administrative State. It is through Agency rule-making that interest groups can maximize their leverage and achieve their goals without necessarily having to petition Congress. 

The emasculation of Congress and neutering of democratic choice is the direct result of the progressive faith in rule by disinterested experts perched on bureaucratic rungs of power. The rising power of the bureaucracy over American life crucially depends on several factors. First, in its desire to escape accountability career politicians have continued to delegate massive amounts of decision making authority to Agency bureaucrats. Probably well above and beyond what is constitutionally permissible under the non-delegation doctrine. 

Second, generally under Chevron deference (1984), the courts are bound to accept an Agency’s interpretation of an ambiguous statute within its jurisdiction as long as the interpretation is not unreasonable. 

Third, the continuing politicization of language combined with deliberate use of ambiguity and the denial of the idea of fixed meaning effectively gives Agencies carte blanche to rewrite entire laws well outside their original intent. 

These developments have placed enormous and increasing power in the hands of the Executive Branch. Which brings us to the question of President-elect Biden’s allegedly moderate instincts.  

Let’s take a case in point. In the matter of transgender rights Biden has promised to use Executive power to “…restore transgender students’ access to sports, bathrooms, and locker rooms in accordance with their gender identity.” He further promises to commit to passing the Equality Act which according to CNN “…would protect against anti-LGBTQ discrimination in commercial and public life, with no religious exemptions.” 

Let’s take a look at the implications of this. The moderate Mr. Biden has clearly said that he believes that sex differentiation is simply a cultural construct; that your sex is not an objective reality, and that your sexual identity is simply what you declare it to be. 

Here Biden has clearly hitched his wagon to the trans activist train.  Rather than call gender dysphoria what it is, he has chosen to use the coercive power of government to re-shape society according to the world view of post-modern cultural de-constructionists. This, even though real world evidence shows that sex differences are embedded in our DNA. For instance, all else equal men have greater bone density and lung capacity. These differences matter, especially in sports. And women’s sports are being devastated by men competing as self-identified women, including those who have transitioned. 

For example, the British Journal of Sports Medicine found that trans women had a 12% advantage across various exercise metrics a full two years after hormone treatments to suppress testosterone. (Before treatment they had a 31% advantage). The academic journal Emerging Topics in Life Sciences says that “Accepted science regarding male and female physiology suggests that trans women have an advantage over their cisgendered counterparts.” 

Most important is that this debate is not about women’s sports at all. It is really about the re-ordering of society based on the idea that biological sex is unimportant. And that re-ordering would come from bureaucratic rule-making designed to alter the culture and the language we use to frame issues.

Anyone who doubts this should consider the implications of the H.R.5 —the Equality Act, enthusiastically supported by Joe Biden.  Basically the proposed Act amends the Civil Rights Act of 1964 to prohibit discrimination on the basis of sex, sexual orientation, gender identity or a sex stereotype. Further, “SEC.1107.CLAIMS” goes on to say “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”.

Which is to say that in direct defiance of the First amendment, religious organizations would be have to change the practice of their religious beliefs in order to conform to the requirements of federal anti-discrimination law. Which law will be interpreted by the bureaucracy in the rule making process. And if there is any doubt as to the upcoming Biden Administration’s intentions here, keep this in mind. Biden has already nominated Xavier Becerra to be HHS Secretary. Becerra is an abortion rights fanatic who is currently suing the Little Sisters of the Poor over their continued refusal to finance employee purchases of contraception and abortafacients. 

It actually gets worse. Biden believes that your rights are the ones that are given to you by government. In his recent criticism of Judge Amy Coney Barrett he said, according to NBC News, “she didn’t lay out “much of a judicial philosophy, in terms of the basis upon which she thinks, (sic) are there unenumerated rights in the constitution.”

Not surprisingly, Biden, whom no one has accused of being exceptionally  bright, has it exactly backwards. The ninth amendment, which is the one in the Constitution that discusses enumerated rights, reads as follows. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (emphasis added).  That of course means that the enumerated rights doctrine is meant to restrict the power of Government, not people, who retain all their inherent rights. 

So when you put it all together, the supposedly moderate Mr. Biden has promised a cultural revolution to upend civil society by using the power of government to impose a wholly artificial definition of sex on it. He promises to attack the First amendment guarantee of freedom of religious practice. And he is of the belief (to the extent he has any) that our rights are not inherent; they are the ones government deigns to bless us with. 

Quite the moderate. 


A Supposed Return to “Normalcy”

President-elect Joe Biden won the race by running a determined campaign that focused exclusively on an indisputable fact. Joe Biden is not Donald Trump. To which the voters responded by giving Trump the heave-ho while cutting into the Democratic majority in the House and (probably) leaving the Senate in Republican hands. 

The institutional Democratic response to all this thus far has been to continue to push their leftist agenda that was fairly decisively rejected at the polls. In return they ask for a return bipartisanship and comity. 

The plea for comity is coming from people who spent the last 4 years or so calling the Republicans racists, white supremacists, misogynists and Nazi sympathizers. It comes from people who routinely voted as a bloc against Trump’s judicial nominees and legislative initiatives. It comes from people who argued that the entire Trump presidency was illegitimate; that but for collusion with Russia, Trump would not have been elected and  that Trump was a Russian “asset”. 

Democrats and their friends in the media ludicrously argued that Supreme Court nominee Bret Kavanaugh was the leader of a high school gang-rape team; that in high school he unsuccessfully tried to assault Christine Blasey Ford. Mind you Blasey Ford never produced a shred of evidence supporting her claim; the witnesses she cited either refused to testify or flat out contradicted her, including her friend Leyland Keyser. And speaking of media friends, none of this prevented the Washington Post from describing Blasey Ford as a “prosecutor’s dream witness”.

Beyond the direct testimony of Blasey Ford, the party promoted wild and unsubstantiated claims of sexual assault brought forward by attorney Michael Avenatti. The legal career of Mr Avenatti has by now taken a turn for the worse. He is now a convicted felon, having been found guilty of committing fraud and extortion against Nike. 

And then there were the physical attacks on officials of the Trump Administration, encouraged by Maxine Waters (D-CA), among others. According to NBC News, on June 25, 2018, she said: 

“If you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd and you push back on them, and you tell them they’re not welcome anymore, anywhere,” Waters, who has called for President Donald Trump to be impeached, told supporters over the weekend. 

In the event, activists took up the call with zest, chasing scores of Trump officials and Republican office holders out of restaurants and physically threatening them, including Majority Leader Mitch McConnell and his wife Elaine Chou. And that isn’t all. Representative Steve Scalise was shot by a Bernie Sanders supporter during a Congressional baseball game. (I hasten to add that the man was obviously mentally ill, and Senator Sanders quickly condemned the shooting). 

Nevertheless, the point remains. Democrats and progressives launched a scorched earth campaign of opposition, and not for the first time. Now that they have the White House, a bare majority in the House, and lack control of the Senate they have decided that they are in favor of bipartisanship and comity after all. Who is kidding whom?

The obvious question is: If Democrats are so interested in compromise, what grounds are they willing to concede in the search for consensus? The answer is: none. 

In that respect let us consider where the head of the party and its titular leader stands. To begin with, he has nominated California AG Xavier Becerra to lead HHS. Becerra, who has no experience in the field is quite simply a culture warrior.  In particular, he is an abortion rights fanatic. Operating as California’s Attorney General, he launched lawsuits seeking to overturn other states abortion restrictions. Those states include Arkansas, Louisiana, Mississippi, Missouri and Ohio. His justification for doing so? “No government” he said “state or federal, has the right” to interfere with abortion. Which, in another context, is essentially the argument Texas AG Ken Paxton recently made with respect to the election, an argument that rightfully got the back of the Supreme Court’s hand. 

Becerra defended California’s mandate (since overturned by the U.S. Supreme Court in NIFLA v. Becerra) that required pro-life pregnancy centers to provide patients with information on how to obtain state funded abortions. In yet another attack on the first amendment, he sued the Little Sisters of the Poor seeking to require them to finance the purchase of contraception and abortifacients. 

Then there is the nomination of Neera Tanden to head the Office of Management and Budget (OMB). In one sense she is a candidate that everyone can agree on: she has antagonized just about everyone in Washington, left, right and center. And not because she is a strong independent leader. She is simply a Hillary Clinton sycophant. In emails revealed by Wikileaks she wrote “I would do whatever Hillary needs always. I owe her a lot. And I’m a loyal soldier” and, “I don’t really think the issues matter”. The only explanations for her selection are these: either Biden picked a sacrificial lamb to appease the nomination Gods, or he is making selections essentially at random. No one thinks she is actually qualified to run OMB. 

I could go on, but there is only so much time in a day. It is becoming increasingly clear that the idea of a return to “normalcy” is nothing more than a liberal fantasy. Personnel is policy and Biden is in the process selecting personnel who are creatures of the left, most of whom served in the Obama Administration.  Not only have they presided over numerous policy disasters in the past, they are unchastened, and fully intend to repeat their failures.  Moreover, at the Administrative level it is clear that the supposedly moderate Biden means to govern by “pen and phone”, Obama style. 

Strap in because the best days of the Biden administration are already behind us, and he hasn’t even taken the oath of office yet. 


Too Much Democracy?

As the 116th Congress draws to a close, we must confront the fact that a large majority—64%—of the Republican Congressional caucus signed on to an amicus brief siding with Texas Attorney General Ken Paxton seeking to bar Georgia, Michigan, Pennsylvania and Wisconsin from casting their Electoral College votes for Joe Biden. Ken Paxton was not alone: 17 Republican Attorneys General backed the lawsuit.

The behavior of the majority of the Republican caucus is not simply stupid, although it is that. It is also political malpractice. Let’s leave aside the fact—and it is a fact—that there was no reasonable legal theory underlying the case to begin with. Not only that, the Republicans never produced a shred of evidence to show that the election was sufficiently tainted to alter the outcome, much less that they “won big”. 

Despite the blizzard of lawsuits they launched, Trump and his Republican sycophants lost virtually all of them. And for good reason. They simply had no case. The judges that dismissed the cases were often Trump appointees. Not to put too fine a point on it, the Supreme Court declined to even hear the Texas lawsuit and declined to do so without a single dissent. 

What should we make of this? Well, the first question is kind of obvious: Why should anybody take the Republicans seriously? After all, the party is rapidly being overwhelmed by the Tin Foil Hat Brigade. And that is a very big problem.  

Let’s define what the problem is and what it is not. The problem is not that democracy—left undefined—is being foiled. We’ll return to that later. The real problem is that a substantial portion, and perhaps a majority, of Republican office holders are now headed where the Democrats already are. They are denying the legitimacy of an outcome they don’t like, and not for any good reason. They think they are entitled to win; that the election belonged to them. Any election they lose is illegitimate. 

That is a pretty good description of where Hillary Clinton stood after the 2016 election. And the Democratic Party, along with its press acolytes, spent the next 4 years trying to de-legitimize the Trump Presidency, particularly with the Russia Collusion story.

The effort to delegitimize the other side is not a new phenomenon; it has been with us since the beginning of the Republic. There was that matter of the Civil War. Andrew Jackson denied the legitimacy of the 1824 election accusing Henry Clay and John Quincy Adams of agreeing to a corrupt bargain to deny Jackson the presidency. Rutherford B. Hayes was named as president as a result of the Compromise of 1877 in which Congress awarded him 20 contested electoral votes in return for which, he pulled Northern troops out of the South, thus ending the Reconstruction era. 

In more recent times, Democrats have been arguing, without a shred of evidence, that Republicans have systematically suppressed the vote of African Americans. This is a piety almost universally accepted by the party, a piety belied by the numbers. When addressing an NAACP meeting, Joe Biden added helpfully that Mitt Romney would “…put y’all back in chains.” 

On the other hand, plenty of Republicans never accepted the legitimacy of either the Obama or Clinton presidencies. The tightness of the 2000 election didn’t help very much either. John Kerry remains convinced that he won the election of 2004, but that Ohio was stolen from him. And lots of Democrats argue that the only reason why George H.W. Bush won in 1988 is because of the infamous Willy Horton ad, which, they say was racist. 

It seems though, that modern attacks on the legitimacy of the opposing side are qualitatively different. That’s because in some ways, they are. Which points to the real underlying problem. There is too much democracy. 

The word democracy is tossed about far too loosely in American politics. It has come to simply mean “good”, which also implies there should be no restraint.

There are two points here that have to be emphasized. The first is that in actuality democracy is simply a process for selecting among competing alternatives. It is designed to mediate differences, not to create some illusory unity. The second is that, contrary to widely held opinion, democracy is not the foundational value of the American experiment in self-rule. Liberty is. 

The Madisonian framework for constitutional governance was designed to secure and preserve liberty. The framers were terrified of mob rule. The French Revolution, which began in 1789, reinforced that fear. The U.S. Constitution was designed to make government decision making difficult so as to limit government power. In theory the government could only do what it was permitted to do by the Constitution. The Bill of Rights carved out things the government was expressly prohibited from doing. 

That went out the window with the rise of progressive politics. Government was unleashed and so was democracy. Now government’s power to intervene in the minutia of peoples lives is almost limitless. All in the name of helping “the people”. Even in areas where government action was strictly circumscribed by the Bill of Rights, policymakers are only held back by courts. And the independence of the courts is under attack. 

What’s more is that there is a unified theory that forms the basis of the attack on liberty. Call it relativism, critical race theory, deconstructionism, intersectionality, radical feminism, Neo-Marxism or what you will. It all amounts to the same thing. Individual human beings count for nothing; all that matters is power relations. Workers v Capitalists, Males (the patriarchy) vs Females, Whites vs People of Color etc etc. Intersectionality simply creates a more exquisitely refined selection of grievance categories.  

When all human relations are reduced to one dimension; namely, the will to power, politics eventually dominates everything. Inevitably the result is violence and tyranny. There is no room for individual liberty; no room for live and let live; for kindness, decency, love, respect or all the things that make life worth living. 

That is were we are headed if the critical theorists have their way. More and more, the culture shapers in the media, the arts, the universities and woke corporations have bought into it. Now it is seeping into the popular culture. That’s what the real problem is. 


Sore Loser

On Friday evening the Supreme Court refused to hear the case brought by Texas’s Attorney General and joined by 18 additional Attorney’s General, all of whom are Republicans.  The plaintiffs in the case sought to have the Court throw out the votes of 4 states to be replaced by the state legislature’s choice of electors to the Electoral College. Conveniently enough, all 4 state were won by Joe Biden and all 4 states have Republican majority legislatures. 

In the event, when the Court declined to take up the case, it did so without dissent. Two Justices, Clarence Thomas and Sam Alito, took the position that the case should be heard, but pointedly noted that the case would fail on the merits. As Andrew McCarthy notes here, Thomas and Alito adhered to their longstanding position that “…the Court must accept cases when states invoke the Court’s original jurisdiction.” The net result is that the Court voted against Trump 9 – 0, a stinging rebuke no matter how you slice it. 

If anyone feels shame anymore then there ought to be a lot of shamefaced people walking around Washington this morning. Start with the man who initiated the lawsuit, Texas Attorney General Ken Paxton. Add the 18 other Republican state Attorneys General who joined the suit. And to that add the 100 or so Republican Congressmen who backed the lawsuit. 

They should be ashamed because not only was the lawsuit garbage from the very beginning; it also implied a wholesale rejection of the separation of powers as well as state sovereignty. It would have set the stage for the spectacle of the states suing each other over policies that clearly reside in the purview of the individual states. And not to put too fine a point on it, just the other day those very same Republicans were arguing that Democrats were turning the Court into a super legislature to achieve policy victories they couldn’t achieve through the electoral process. 

Well, perhaps the Republicans ought to consider the consequences of having nominated a narcissistic reality TV star for President. It ought to be pretty clear that the voters rejected both Trump the person and hard left collectivism. Maybe, just maybe, the Republicans will stop with the cult-of-personality nonsense and begin to act like adults, but I’m not counting on it. 

The Democrats don’t exactly come off well in this fiasco either. Keep in mind that they spent the last 4 years attacking the integrity of the 2016 election, arguing among other things, that Russian interference handed the election, which rightly belonged to Hillary Clinton, to Donald Trump. And Democratic here Stacey Abrams has yet to concede that she lost the Georgia gubernatorial race in 2018. Before the 2020 election even took place, Hillary Clinton announced that Joe Biden should never concede the result. And in Iowa, Democratic candidate for Congress Lisa Hart, who lost the race by 6 votes, has refused to concede and is petitioning Congress to seat her instead of the actual victor. 

Some interest should be given to the predictions of Democratic pooh-bahs  who launched an all-out attack on the Supreme Court. Consider for a moment the dire predictions of Sheldon Whitehouse (D-RI) who argued that as a result of the Citizens United decision (affirming the 1st amendment by the way) a wave of “dark money” would crash over the elections ensuring corporate control of “our democracy”. Or predictions that Republican Supreme Court nominees would “hand the election” to Trump. 

Well a wave of dark money did cascade over the 2020 elections. But it was largely Democratic money, much of which came from Wall Street. And it didn’t do the Democrats much good in Congressional races where they lost seats. Also consider that Trump has now lost something like 33 of 34 election related lawsuits, and that the Supreme Court turned him down cold without a dissent. It’s pretty hard to take the Sheldon Whitehead’s of the world seriously. 

As if the whole situation were not absurd enough to be the subject of a Fellini film, in the wake of the latest defeat, Trump got busy on his Twitter account. See below.

Donald Trump

Donald Trump. Again.

So what does it all add up to?

First, Donald Trump has presented clear and convincing evidence that he never should have received the Republican nomination and never should have been elected President in the first place. Second, the Republican Party, terrified of its increasingly yahoo electoral base, has abandoned its former principles and continues to display a remarkable profile in cowardice. Third, the leadership of the Democratic Party, is increasingly driven by principles–the wrong ones. They are headed down the path of a radical collectivist ideology that bears no dissent and has always led to ruin.

Cheer up, though. Voters in the U.S. have always been quite willing to throw the bums out for a new set of bums. And thus punished, one set of bums gets enough of the message to correct the errors of the last set of bums. And then the cycle repeats.


About Those Norms…

Players in the Democratic Party have spent the better part of the last 2 years piling on Attorney General William Barr, alleging that he is a political hack who can not be trusted to run the Department of Justice.  While speaking from the Senate floor, Charles Schumer (D-NY), said: “His confirmation occurred only a few months ago and yet in a short time Mr. Barr’s conduct has raised damning questions about his impartiality and about his fitness…”

AG Bill Barr

That’s the same Charles Schumer who directly threatened Justices Gorsuch and Kavanaugh when he addressed demonstrators on the steps of the Supreme Court:  “…I want to tell you, Gorsuch… I want to tell you, Kavanaugh… you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” 

Senator Charles Schumer (D-N.Y.)

For this outburst the senior Senator from New York earned a reprimand from Chief Justice Roberts as well as the American Bar Association and others. Harvard Law Professor Laurence Tribe, hardly a right wing extremist, agreed with Justice Roberts, characterized Schumer’s remarks as “inexcusable” and called on him to apologize. Schumer, of course, did no such thing. 

There is another apology that Schumer and Company ought to be make, namely to Attorney General Bill Barr. Note that AG Barr recently said that the Justice Department looked at claims of electoral fraud in the November elections and did not find evidence to conclude that fraud changed the outcome, thereby pulling the rug out from under Trump’s claim of victory, not to mention his legal strategy, such as it is. 

And then, just yesterday the story broke that Hunter Biden, son of President-elect Joe “Here’s the Deal” Biden, is under federal criminal investigation both in Delaware and in the Southern District of New York. Moreover the investigation has been going on for some time, at least since the spring of 2020. In keeping with Justice Department guidelines, the investigation was kept under wraps so as not to influence the upcoming election in November. 

Compare that with the behavior of Loretta Lynch in the Hillary Clinton e-mail investigation. Or with the gusher of leaks coming out of the FBI for the purpose of taking down the Trump presidency.  Or with the targeting of conservative groups by the IRS during the Obama years. Or with the grandstanding of Sally Yates. 

There has indeed been plenty of norm busting in the Justice Department in recent years. But it wasn’t the work of Bill Barr. He played it straight, and in so doing he enraged Democratic partisans whose idea of norms is whatever behavior advances progressive goals. 

Democrats owe Attorney General Bill Barr an apology, but it’s an apology that will never be offered. That would require a sense of honor. 


Mainstream Madness

A little over 50 years ago James Burnham authored a book titled “Suicide of the West”. It was his thesis that the West had lost faith in its institutions and culture. As a result, the West, especially its intellectuals and culture shapers (with certain notable exceptions) were no longer willing to defend Western civilization and its culture. More than that, Wester civilization became the enemy. Well, here we are again. 

Fortunately, the stupidity of that era didn’t last for long. But it didn’t disappear entirely, it merely went into hiding. Now it has come back with a vengeance. 

Douglas Murray, author of several books including the recently published  “Madness of Crowds” sat down with Peter Robinson of the Hoover Institution to discuss the current state of affairs, particularly the intellectual, political and cultural environments in which we now reside. It’s a long interview, about 1 hour and 15 minutes. It’s worth every minute. Please see the video of the interview below.


Douglas Murray–Author of the “Madness of Crowds”