In May 1856, Massachusetts Senator Charles Sumner rose on the Senate floor to denounce the law that opened Kansas to slavery. In excoriating one of the bill’s architects, South Carolina’s Andrew Butler, Sumner all but accused the southern senator of raping the Black women he had enslaved, claiming that Butler had “chosen a mistress to whom he has made his vows, and who, though ugly to others, is always lovely to him; though polluted in the sight of the world, is chaste in his sight—I mean the harlot, Slavery.”

Sumner’s words highlighted a major, ugly scandal—and they provoked another. Three days after Sumner’s speech, Butler’s relative, South Carolina Representative Preston Brooks, approached Sumner in the Senate chamber with a heavy cane and beat him mercilessly about the head. Sumner was so horribly injured he could not return to the Senate full-time for three years. The House failed to muster a two-thirds vote to expel Brooks, who was treated like a hero in the South. To prove he retained the support of his constituents, Brooks resigned and then was quickly returned to office in a special election. Hundreds of southerners sent him canes as gifts, some inscribed with the words “Hit Him Again.”

Neither Brooks nor Butler appears in the University of Houston political scientist Brandon Rottinghaus’s excellent new study, Scandal: Why Politicians Survive Controversy in a Partisan Era. That’s because the book is concerned with the period from Watergate to the present. But Butler’s and Brooks’s successful defiance of scandal in an earlier era provides important additional context, reminding us that our current era of impunity and partisanship for even the vilest behavior is not unprecedented.

Rottinghaus’s book concludes that today’s entrenched political polarization helps politicians overcome scandal. This is hardly shocking; everyone knows that Donald Trump was elected president months after a felony fraud conviction, after being held liable for a sexual assault the presiding judge described as rape, and after attempting to interfere with a free and fair election. It’s almost a shibboleth to say “nothing matters” anymore. But Rottinghaus provides evidence and nuance for what has become conventional wisdom.

In the first place, impunity is not, in fact, all encompassing. Using a definition of scandal as “allegations of illegal, unethical, or immoral wrongdoing”—and excluding incompetence, unpopular actions, or policy failures—Rottinghaus identifies 156 presidential scandals between 1972 and 2021, as well as numerous congressional and gubernatorial scandals. To determine if scandals have more or less politically fatal impact today, Rottinghaus looked at resignation rates across time.

The results puncture some of the fatalism. In the Watergate era, resignation rates were 47 percent; in the 1980s—with Iran-Contra and the Keating Five scandal—resignation rates were about 50 percent. In the Bush years, resignation rates dropped to 43 percent, and in the first Trump term they were 45 percent. The low point was the Clinton era, when only about 40 percent of scandals produced resignations. From that vantage, today looks less like a collapse in accountability than a modest decline from already-low baselines.

One can fairly argue that Trump’s scandals are more serious—soliciting foreign election interference and trying to overturn elections have much more sweeping consequences for democracy than consensual but still improper sex with a subordinate. And Rottinghaus also notes that officials accused of impropriety now tend to stay in office longer even if they do eventually resign. Trump’s secretary of the interior in his first term, Ryan Zinke, survived in office for 16 months despite a series of corruption scandals involving the use of government resources for private travel. He even lasted for weeks after he lost the support of the Trump administration itself—though he was subsequently reelected to the House. Still, Zinke did step down, suggesting that some things do matter, at least for cabinet officers, even if only slowly. 

Curiously, the arena where scandal matters least isn’t the presidency—it’s the states. Gubernatorial scandals have dropped markedly since 2011, not because governors have grown more virtuous but because oversight has weakened. Single-party control at the state level has increased substantially over the past 15 to 20 years; today 38 states have unified one-party government. When one party controls both the governorship and the legislature, each has little incentive to scrutinize the other. Fewer investigations mean that fewer scandals become public, and fewer still result in resignations.

Increasing polarization also coincides with increasing partisan hostility. In 2016, for example, 47 percent of Republicans and 35 percent of Democrats viewed the opposing party as more immoral than other Americans. By 2022, that number had jumped to 72 percent of Republicans and 63 percent of Democrats. 

This political landscape makes it possible for politicians to leverage partisanship to survive scandals or even to literally capitalize on them. Rottinghaus points to the day Trump was convicted of felony campaign finance violations related to hush-money payments to silence news of his affair with the adult-film actor Stormy Daniels. Trump claimed that he was the target of a witch hunt, and his partisans agreed, showering him with tens of millions of dollars in campaign contributions in a 24-hour period. “Claims of misinformation generate larger gains for politicians than simply ignoring the scandal or apologizing, making it a preferred strategy and more politically effective than a simple denial,” Rottinghaus observes drily.

That dynamic echoes the antebellum South’s reaction to Brooks. Then, as now, intense partisanship enabled supporters to celebrate transgression as heroism. Political scientists do not have surveys of partisanship from the 1850s, but you don’t need surveys to figure out that the era was characterized by increasing regional and partisan tensions. The country at the time was more divided than it has ever been; that’s why there was a civil war. In such a situation, Rottinghaus’s analysis suggests that you should see partisans willing to ignore and even cheer on scandals—which is exactly what happened with Butler and Brooks.

Like many political scientists and pundits, Rottinghaus tends to present increased polarization as a bad thing or as a threat to American democracy. He notes, for example, that cross-partisan friendships “can establish better boundaries for political wrongdoing by public officials and give people of all ideologies a rounder perspective.” He also conducted a survey showing that people with politically diverse friendships have less of a desire to see the other party engulfed in scandal.

What Rottinghaus emphasizes less is that polarization waxes and wanes—and that bipartisanship carries its own dangers. He repeatedly notes that partisanship has increased over time—which is true from the 1970s to the present. But the past 50 years is just the past 50 years; partisanship over a longer horizon has not trended in a single direction. For example, the extremely partisan post–Civil War Reconstruction era ended with the bipartisan Compromise of 1877. To resolve the disputed presidential contest from the prior year, white Republicans and white Democrats agreed to abandon Reconstruction-era efforts at fostering racial equality and joined together in suppressing Black rights and Black people—Democrats through open violence, Republicans more often through refusing to offer aid to those targeted. This bipartisan agreement on tacitly codifying white supremacy lasted for almost a century. Jim Crow was enabled in no small part by cross-party compromise and agreement. 

As the scholars Daniel Kreiss and Shannon McGregor argue, polarization is only a “threat to democracy” if one ignores inequality; from a nonwhite perspective, racial repression has been far more destructive to democratic life than partisan division. 

Again, Sumner’s speech provides important context. Rottinghaus notes in passing that in the past politicians expressing racism and sexism would not have generated scandals. In fact, in the early Republic, rape of Black women was considered normal, unexceptionable, and unworthy of mention—or as the scholar Shannon Eaves puts it, “the antebellum South was deeply rooted in a rape culture.”

Sumner, by alluding to sexual assault on Black women as scandalous, was expressing and contributing to heightened partisanship. But in highlighting this grotesque tradition, Sumner was also highlighting the benefits of exposing scandals. In Sumner’s case, he drew attention to the systemic problem of slavery. His words, and the South’s violent reaction, did not result in accountability for Brooks. But it did help bring about the Civil War, giving enslaved people a chance to flee plantations and bring about their own emancipation.

Rottinghaus admits that scandals can be healthy: They raise public attention, spur reform, and expose systemic rot. He also argues that polarization has made scandals less damaging, though not irrelevant. But widening the historical frame reveals a deeper truth. The most consequential scandals are often those that clarify injustices long normalized by bipartisan consensus. Partisanship can enable impunity—but bipartisanship can conceal horrors.

Sumner’s example reminds us that scandals don’t always bring down politicians. But sometimes they force the country to see what it once refused to admit was scandalous at all.

The post The Scandal About Scandals appeared first on Washington Monthly.

Following the appointment of Brett Kavanaugh, the Supreme Court looks poised not only to push a radical right agenda for a generation, but to further entrench Republican minority rule by approving the anti-democratic forces of voter suppression, gerrymandering, and unlimited money in politics. Democrats have a huge incentive, and arguably an obligation, to fight that outcome. But that fight could lead Republicans to escalate even more, further undermining democratic norms.

The court at the moment is worryingly divorced from democratic will. Republicans have won one popular vote for the presidency since 1988. Yet the court has had a conservative majority that entire time. To preserve that majority, Senate Republican leader Mitch McConnell was willing to block Barack Obama’s nominee, Merrick Garland, for more than a year.

Just as important as McConnell’s violation of norms was Justice Anthony Kennedy’s carefully planned retirement, which created the vacancy ultimately filled by Kavanaugh. If conservative justices only step down from the bench under conservative presidents, and if a Republican Senate refuses to ever confirm Democratic appointees, the possibility of ever overturning the conservative majority dwindles to nothing.

Republicans, in short, have increasingly treated the court as their rightful partisan spoils. It’s little wonder that Democrats have begun to talk about changing the rules when they hold the presidency and the Congress. Many commentators have called for term limits on justices—a reform that would require a constitutional amendment. There has also been increasing pressure from the left to pack the court by adding a number of liberal justices, as FDR famously threatened to do in 1937. That wouldn’t require an amendment, because the Constitution leaves the size and structure of the court up to Congress—but if Democrats could do it, so could Republicans when they got back into power. That’s a formula for making arguments around the court more volatile, not less.

There is an alternative to escalating constitutional brinkmanship, though. To make the Supreme Court more accountable, and more reflective of the popular will, the key is to change institutional incentives so that the court has a more natural cycle of replacement and renewal, and partisans on both sides feel like they can have a chance to influence it through normal electoral methods rather than procedural gimmicks. One promising way to achieve that would be for Congress to implement a system of one new justice per term.

A one judge per term system would be very straightforward: each new president would be allowed to appoint exactly one justice immediately after being elected. They would no longer appoint judges when a sitting justice retires or dies. Thus, the size of the court could fluctuate somewhat over time. None of this would require a Constitutional Amendment; justices would still serve for life, as mandated in Article III.

This plan would mean that voters would have regular input into the partisan make up of the court every four years. Partisans would know they’d have a chance to influence the court every presidential election; it would be regular and predictable, not subject to the vicissitudes of when justices die or choose to retire. This would reduce the need for partisan games. Justices would have less incentive to time their retirements, since they could not choose their own replacements, as Kennedy did. And Congress would have much less reason to treat each Supreme Court appointment as a final, must-win battle.

No system is perfect; there would be downsides to one judge per term as well. There have been thirteen justices appointed over the last twelve presidential terms, so the rate of replacement shouldn’t change that much. But it’s likely that there would be periods where the court had an even number of justices, and the potential for split decisions. Split decisions uphold lower court rulings, without setting national precedents—so different federal circuits could end up following different interpretations of law.

This isn’t ideal, but it has happened before, and hasn’t posed a serious threat to our democracy. Perhaps it would even encourage justices to work harder to find a mutually agreeable compromise in some cases.

Perhaps the biggest weakness of the proposal is that it doesn’t force Congress to confirm the president’s nominee. In theory, after a Democratic victory, Mitch McConnell or a future version could refuse to hold hearings for four years until the next presidential election. The legislation implementing the new system could address the problem by providing that after, say, six months without a vote, the nominee is automatically confirmed. But that would be legally dubious because it would amount to Congress signing away the Senate’s constitutional power of “advice and consent.” The best hope is that, by lowering the stakes of each appointment, the one justice per term system lowers the political will for such extreme brinksmanship.

How would the system work in practice given current realities? If the Democrats win the presidency and Congress in 2020, it seems likely that Stephen Breyer and Ruth Bader Ginsburg would retire and be replaced, leaving a 5-4 court composed mostly of justices likely to serve for decades. Congress could then pass a One Justice Per Term law to go into effect following the 2024 election. If Democrats won that election, they could place another justice on the court, bringing it to a 5-5 tie. If Republicans won, they could place another judge on, moving the court to a 6-4 conservative majority.

This would mean that there would be little incentive for Republicans to repeal the legislation immediately. If they lost in 2024, they wouldn’t have the presidency, and thus couldn’t repeal it even if they wanted. If they won, why would they want to change anything? They would likely have a conservative majority locked in for at least eight years. That would be a bad outcome for Democrats, clearly—but would still be vastly better than the status quo, which most likely entails more than twenty years of conservative control.

The point here is not to craft perfect legislation. Rather, the point is that we have options other than miraculously finding the votes for a constitutional amendment, or simply blowing the system up. Republicans have conducted a bad-faith campaign to undermine the court, leaving it undemocratic and hyper-partisan. But Democrats should resist responding in kind. As with so many institutions, the answer to Republicans’ anti-democratic assault on the court is to make it more democratic.

The post How to Fix the Supreme Court Without Blowing It Up appeared first on Washington Monthly.