Tom Pepinsky

Category: Politics

  • Why Kavanaugh’s Partisan Norm-Breaking Matters

    Thursday’s testimony by Dr. Christine Blasey Ford and Judge Brett Kavanaugh were landmark political events that will not soon be forgotten. Dr. Ford’s testimony was gripping, moving, and deeply personal—among the bravest things that many of us have ever seen. Judge Kavanaugh’s response was stern, and his denials unequivocal. I have no special insight about what will happen next, as the FBI launches its abbreviated investigation into the allegations of sexual assault. However, Judge Kavanaugh’s openly partisan performance deserve special attention.*

    There is no precedent in modern Supreme Court history of a nominee invoking partisan considerations so openly and directly. But Kavanaugh’s opening statement left no doubt that he blamed one party—Democrats—for what has happened over the past two weeks.

    Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. Shortly after I was nominated, the Democratic Senate leader said he would, quote, “oppose me with everything he’s got.” A Democratic senator on this committee publicly — publicly referred to me as evil — evil. Think about that word. It’s said that those who supported me were, quote, “complicit in evil.” Another Democratic senator on this committee said, quote, “Judge Kavanaugh is your worst nightmare.” A former head of the Democratic National Committee said, quote, “Judge Kavanaugh will threaten the lives of millions of Americans for decades to come.”
    …
    The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at Borking.

    Those efforts didn’t work. When I did at least OK enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed.

    Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits.
    …
    After I’ve been in the public arena for 26 years without even a hint — a whiff — of an allegation like this. And when my nomination to the Supreme Court was just about to be voted on, at a time when I’m called “evil” by a Democratic member of this committee, while Democratic opponents of my nomination say people will die if I am confirmed.
    …
    This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.

    The partisan allegations here are serious and direct: Judge Kavanaugh believe that there is a conspiracy on behalf of the Clintons, perpetrated by members of the Democratic Party, to tarnish his name for political gain. Let us pause to note that this was testimony by a candidate for the Supreme Court, a body which exists to rule with no consideration for partisanship.

    Now, no one who pays any attention to politics believes that the Supreme Court is a neutral and apolitical arbiter. One of the reasons that Supreme Court nominations are so politically contentious is because we know that justices have legal philosophies that lead them to rule in ways that particular parties and interests will favor. And there is a rich body of literature that shows how things such as public opinion shape Supreme Court rulings (see, for example, my colleague Peter Enns and Patrick Wohlfarth on “the Swing Justice“).

    But prior to Thursday, there existed a consensus—unwritten, unenforced, but clear—that we would all not talk about the partisan nature of Supreme Court jurisprudence. Senators from one party would not say “we are nominating you because you will rule for us.” And nominees would not say “I will likely rule for you and that’s why you should pick me.” Even after Merrick Garland’s nomination was held up by the GOP-controlled Senate, for plainly partisan purposes, all public debate about Supreme Court nominations continued the narrative that nominees were to be judged by their quality of mind, their legal scholarship, and their respect for precedent.** It all aimed to protect a norm of nonpartisan jurisprudence.

    So how does it matter that Kavanaugh has now made it clear that he blames Democrats for what he sees as a “coordinated and well-funded effort to destroy my good name and to destroy my family”? What difference does it make, more precisely, that Kavanaugh acknowledged openly that partisanship matters to him as a Supreme Court nominee, rather than participating in the public ritual of nonpartisan jurisprudence? Kavanaugh is certainly not the first Supreme Court nominee who has partisan views—far from it. What difference does it make that he said these things openly?

    The most important consequence of Kavanaugh’s open partisanship is that it undermines the norm of nonpartisan jurisprudence. No reasonable observer will believe—given his strident, emotional delivery—that Kavanaugh is able to set aside his personal feelings and partisan views for any ruling that might affect the Democratic Party, either positively or negatively. Nor should they. No justice does, probably. But certainly not Kavanaugh, were he to be confirmed.

    But the norm of nonpartisan jurisprudence is extraordinarily functional for giving legitimacy to an institution—the Supreme Court—whose decisions have partisan effects all of the time. For American democracy to function effectively, the losers from highly partisan Supreme Court decisions must believe that the process is legitimate even if they detest the outcomes. Imagine a world in which actors do not believe that any more.

    There could be a second-order effect as well. Now, aspiring Supreme Court justices may come to believe that jurisprudence is an essentially partisan activity. Of course we have always known that judges angling to serve on the Supreme Court will rule in particular ways that make them attractive to one party or another. But once again, this was always subsumed under a broader and more diffuse concept of “legal philosophy” that allows partisan rulings to have legitimacy even to those who lose under them. What does a judicial system overseen by open partisans look like?

    Sometimes it is actually a good idea to pretend that Supreme Court justices are not partisan, even if we know they are. Kavanaugh has made that impossible, and no partisan of any sort should welcome the consequences.

    NOTES

    * There is, of course, so much more to comment on as well. The contrast between Justice Kavanaugh’s raw, aggressive emotions and Dr. Ford’s calm and at times apologetic delivery. The many falsehoods in Kavanaugh’s remarks. The list goes on.

    ** And, uh, whether or not there was a presidential election coming up.

  • The Rupiah’s Recent Troubles and the Old Currency Board Plan

    The Indonesian rupiah finds itself beset by international currency troubles. The word that jumps out to me in the Indonesian press coverage and on Twitter is anjlok, which means to plummet or to fall rapidly (see e.g. here). The last time that I saw the word anjlok used to describe the rupiah’s value this often was in old press clippings from the late 1990s, describing the Asian Financial Crisis, when the rupiah plunged from Rp2000/USD to Rp14000/USD in just a few months.

    By contrast, the current troubles don’t seem so bad.

    Source: Bloomberg

    The worry is about the latest jump in the IDR/USD exchange rate over the past two weeks, which is worrying for certain but not nearly comparable to the financial (and subsequently macroeconomic and political) catastrophe that accompanied the rupiah’s collapse in 1998.

    But it was in this context that an alert graduate student forwarded me this tweet:

    There is so much going on here.

    Take first the tweet’s author, Steve Hanke. Hanke has made a name for himself in the past thirty years as an ardent defender/proponent of the currency board system, a kind of exchange rate management institution in which a government body pledges to exchange local currency for benchmark foreign currency and keeps reserves on hand to accomplish this. Hanke is bullish on currency boards! Here he is tweeting on Turkey:

    The mind boggles at this sort of claim. It strikes me as much more credible to argue that currency boards rarely fail, or that when they fail it’s not so bad, but then again we live in the era of the Big Lie.

    The problem with any fixed exchange rate system is that without capital controls, domestic governments sacrifice macroeconomic policy autonomy (the old Mundell-Fleming Trilemma). There is nothing magical about calling the fixed exchange rate promise a “currency board” rather than “the moon and sixpence” or something else. And because currency boards are political institutions created by politicians, they are obviously inherit any credibility problem that a government might have when it faces a run on its currency. Of course, the idea behind the currency board is that the strict pledge not to interfere in the currency would itself become the source of greater credibility. But that pledge is also a political act, and requires a strong signaling and credibility logic to sustain (“only a government that’s really serious would pledge something like this, so we infer that it must be credible”).

    For Indonesia watchers, seeing Steve Hanke tweet about currency boards and Indonesia is quite the blast from the past. But there’s more! That tweet also conveys Hanke’s views about the fall of Soeharto as being not just the result of the crisis, but rather of plot by the US and the IMF to overthrow him. Why does he hold such beliefs? Because back in February 1998, Hanke was a key player in trying to convince Soeharto to implement a currency board system at the height of the crisis.

    I wrote about this a month and a half ago, in a discussion of recently declassified material from the last years of Soeharto’s New Order. Here’s President Clinton’s quote again:

    If the rupiah falls, you will lose your reserves. And if the currency board is caught short and falls, you will lose the reserves as well, just quicker.

    You can see how this sort of claim would annoy any proponent of a currency board system. In the end Soeharto didn’t go for the currency board proposal—and very clearly, both the US and the IMF were sharply critical of this proposal—but couldn’t hold onto power in the midst of dramatic economic collapse. Hanke thinks that this is evidence that the currency board would have saved Soeharto, and the rupiah too.

    If you’re wondering if Hanke maybe has a point (and he is not alone in his interpretations, see e.g. Ross McLeod here [PDF]), you might have a snicker at this February 16, 1998 article in Barron’s talking about successful examples that Indonesia might hope to emulate.

    Federal Reserve Chairman Alan Greenspan noted the currency boards in Hong Kong and Argentina have worked because “the political will and policies required” have been present.

    Hard to see how Soeharto possessed “the political will and policies required” to sustain a currency board. But this exchange rate policy footnote remains interesting when viewed with twenty years’ hindsight.