We noted it on Saturday evening when the Trump administration announced that full sanctions on Iran were being reimposed, effective immediately. The timing was 19 September 2020 at 8:00 PM Eastern Daylight Time in the United States, which translates to midnight – the beginning of Sunday, 20 September – on the Universal Time clock (what is traditionally known as Greenwich Mean Time, or “Zulu” time).
The Trump State Department, under Mike Pompeo, wanted it to be clear we were losing no time. Sanctions were back, in the first minute after midnight on the promised day of 20 September. The sanctions-lifting granted by Obama under the Joint Comprehensive Plan of Action (JCPOA) of 2015 was dead.
As President Trump has been saying since 2015, that’s because the JCPOA is a lousy “deal.” All it ever did was allow every aspect of Iran’s nuclear program to continue, by protecting it from both sanctions and military interdiction. The JCPOA constrained us – the United States, and to some extent Israel – in meaningful ways. It did not constrain or restrain Iran in any way the Iranian regime couldn’t get around.
This is a bemusing thing to ponder, juxtaposed with what happened the very next day.
An “Iran deal” on the Supreme Court
The late Justice Ruth Bader Ginsburg’s death on 18 September kicked off a frenzy of debate and speculation about filling her now-vacant seat on the Supreme Court. It being 2020, the event touched off street protests and a barrage of lunatic threats from the Left as well.
Everyone is presumably familiar with the bone of contention: whether President Trump should nominate a new justice, and whether the Senate should confirm her (Trump has promised it will be a woman), given the proximity to the presidential election.
On Monday, 21 September, a couple of mainstream media op-eds from NeverTrump conservative voices outlined a proposal for Senate Republicans to tamp down the frenzy with. That, at least, is the goal the authors, Jonah Goldberg and David French, have in mind: tamping down the frenzy. Their suggestion is that Republicans float a deal with Democrats.
David French and Jonah Goldberg are both arguing that Republicans should not fill the SCOTUS seat in exchange with the Democrats promising not to pack the court, which is something they’ve been threatening to do for years at this point pic.twitter.com/1lwqZg6TP4
— Greg Price (@greg_price11) September 21, 2020
Writing separately – Goldberg in his Los Angeles Times column, French at TIME – they made essentially the same suggestion. Senate Republicans should seek a deal in which they agree not to seat a new justice before the election, and Democrats (or at least enough Democrats to make it effective) agree not to pack the court even if Joe Biden wins in the general election.
Goldberg puts the deal in these terms:
Republicans have the ability to replace Ginsburg before the election or immediately after in a lame duck session. That is a huge bargaining chip, and given that the GOP’s majority is so slim, it’s a chip that can be traded by even a handful of Republican senators.
A few Republicans could agree to postpone the process until after the election in exchange for a few Democrats agreeing never to vote for a court-packing scheme. This would give voters some buy-in for whatever happens next. If no Democrats agree, then their issue is really with the system, and Republicans should feel free to vote for Trump’s pick, even in a lame duck session.
French’s version is spelled out in a bit more detail.
Trump makes his pick. …
[T]he Senate … gives the nominee a hearing. …
[T]he Senate then applies the Graham/Rubio/Cruz rule and does not vote before the election. If Trump wins, they then vote on the nominee.
But what if Trump loses?
Biden should make a deal with the lame-duck Senate. Keep the seat open, and he’ll pledge not to sign any legislation packing the Supreme Court while he’s in office.
Both writers point to separate proposals of such a deal made in more academic or esoteric circles. (Over at Reason they seem to like the idea.)
But, even aside from its unenforceability, there’s a giant, gaping hole in this deal, one the Democrats have been previewing for us for months now. It’s a very simple hole. A blindingly simple one, in fact.
A trigger that can’t be pulled
We won’t necessarily know when the election has been won, or who won it, before 20 January 2021. The trigger for a Senate vote on the Trump nominee — i.e., clear evidence of a Trump win — not only might not happen; it can be kept from happening.
The Democrats with their heavy battalion of dispute-the-vote lawyers have made it clear that they want it that way. In my estimate, that’s because they can benefit from uncertainty whether Trump has the lead after election night, or Biden does. If Trump has the lead, a disputed vote keeps Biden in play. If Biden has the lead, a disputed vote could open opportunities for peremptory action of some kind – e.g., if Trump and/or other Republicans could be blamed for some alleged major infraction related to the vote. Opportunities might even including evicting Trump from the White House before inauguration day.
The latter would be a more desperate maneuver, and would only be feasible if Democrats held onto the House. But the relevant point for our purposes here is that the Supreme Court “deal,” as proposed, assumes a decision point we may never reach – largely because the Democrats are already working overtime, with the mass-mailed ballots and campaign of dark warnings about a lengthy dispute over the vote, to ensure that we don’t.
This problem for the “deal” matches up as perfectly as the deal’s own features do with the elements of the Iran “deal.” The Supreme Court “deal” counts on a decision-point event that we could well be unable to identify. The Iran “deal,” to have any security benefits for the non-Iranian parties, depended in just such a way on the UN being able to certify the level of compliance Iran was displaying with the terms of UNSCR 2231, as they applied to the development of nuclear weapons.
Yet in 2017, the head of the IAEA himself said he had no criteria by which to make that determination. In effect, if he had been speaking of the U.S. vote in 2020, he’d have said he was unable to determine who had won the vote, or when.
Bugs, not features
As for the other features, the Republicans would give up their hammer over Democrats’ behavior – i.e., the “threat” (how absurd to call it that) of being able to properly adjudicate any post-3-November voting disputes with a nine-judge court – in exchange for kicking the can down the road on the Democrats’ intention to pack the court.
The analogy here is an exact one: to the JCPOA’s profile of relinquishing the hammer of sanctions in exchange for kicking the can down the road on Iran’s nuclear breakout. The deal in each case is that the party with the undesirable goal agrees to at least pretend to delay it.
And it really is kicking the can down the road, with an out at the end for the Democrats or the mullahs. Both the JCPOA and the David French version of the Supreme Court “deal” have explicit sunset terms. The French Supreme Court deal would sunset with Joe Biden’s departure from office – at the very latest, at the end of one term. At that point, even adhering faithfully to the deal, the Democrats would be free to pack the courts at the next opportunity.
As we head to a conclusion here, it is well to keep in mind the point our colleague Hans Bader made on Monday. Packing the courts, including the Supreme Court, is part of the Democrats’ political agenda and has been for some time. They’ve brought it up on quite a few prior occasions, since well before Justice Ginsburg’s death. It’s not a knee-jerk revenge threat; it’s a deliberate, fully formed intention, integral to the other policies they want to push forward with.
Like Iran’s mullahs and the bomb, the Democrats really mean it when it comes to packing the courts, along with other disruptive policies they favor. They’re not just playing an elaborate, costly game of “chicken.”
The times have already changed
We’ve reached the point at which we can’t afford to be guided by those who don’t recognize these things as they develop around us. We’re not waiting for the revolution to start. We’re in it. It started when the previous administration decided to try to keep the Trump presidency under surveillance and constant threat, and when its henchmen in “civil society,” to use a favorite Soros term, pitched in to help the Democrats in office try to take Trump himself out, one way or another.
I can’t inhabit the mind of someone who thinks there is a meaningful core group of Democrats now to make grand bargains with. We may hope that there will be again; I do, even if the political parties as currently constituted pass away and have to be rebuilt. But that is not the reality that confronts us today.
The Democratic Party as it used to be was essentially gutted and neutralized in 2016, with the brutal money-grabbing tactics described by Donna Brazile after her stint as DNC chair. The Party has devolved into the shell covering for a collection of radical outside groups in the years since. There is no going back now from where we are. There’s no “back” to go back to.
America hasn’t been in a stable situation for at least 12 years now, and probably more than that. The past the NeverTrumpers long for is a chimera from years ago.
That’s a sad thing, but it’s not the only perspective. I’ve written about this before, and won’t pursue it in depth here, but with great disruptions come great opportunities. The past of the “Old Consensus,” the politics of appeasing the radical Left, was never sustainable. We were losing ground under our feet the entire time the radical Left was marching through our institutions. We shouldn’t want that past back. We have the opportunity now to chart a better future.
A path forward
In 2015, Benjamin Netanyahu came to America and spoke to Congress, pleading against the course being pursued with the JCPOA. What he prescribed was not surrender or war, but negotiating a better deal. He was right. We might have had one. That was the reason to plug on, rather than surrendering.
In a related way, Basil H. Liddell-Hart wrote in his 1954 work Strategy that the purpose of grand strategy is to achieve a better peace. Clever tactics, deals, and winning single battles – war itself – come to the point where they do little good, if all we’re doing is delaying difficult reckonings.
America has reached the watershed at which we can no longer delay the difficult reckonings. The radical Left is unappeasable now; it runs the media and other key institutions, and it has the Democratic Party by the short hairs. There’s nothing grounded or secure on the other side that has a common purpose with the Republican NeverTrumpers who want to “go back” to what once was. As in 2015 and the Iran negotiations, what lies behind the organizational forms of the opponent – behind the name, the brand, the banner – isn’t incentivized to make a genuine deal, and won’t be by offers of compromise.
But beyond better deals and better peaces lie the very basics that we now have history’s exceedingly rare opportunity to affirm and orient ourselves to anew. Those basics are hope and a future. History itself would tell us they are real, and that America has been their favorite son. But we have a basis for hope far greater than human history.
You either know today what that hope is, or you don’t. If you do know, you know it doesn’t depend on perfection in us or in our leaders, but on the nature of hope’s Author — and among ourselves, on willing hearts.
There is a moral target yet higher – even higher than hope and a future – and that is life. Life is the treasure of our Creator’s realm, and it is not, ever, the subject of deals. In 2020, life is what we’re fighting for. I think it curious to call fighting for life “Machiavellian”; but it’s an essential lesson, that fighting for life always looks like an intent to exercise “raw power,” to those who want to rob us of it.
The past is a graveyard, the place where the dead have no voices to give praise with and no other fresh offerings to bring. “Justice” is its province; wrongdoing and resentment its clinging ghostly fingers. Trying to preserve it is not even the right thing to do.
The ruler of the future is mercy. The path of life lies through its territory. I would rather be in a position to grant mercy than to receive justice. That is the condition of life we are fighting for in 2020. And it is a project of empowerment — for all the men and women whom we believe to be created equal: to be dispensers of mercy rather than beggars of justice.
No deals will prosper with radicals who are so far gone that they show up only to steal, kill, and destroy. But we may hope for a future in which we negotiate again with fellow men whose greater purposes are in common with ours.
We cannot get to that future by compromising in the vain hope of raising the past from the dead. What is set before us this day is life, and death. Choose life.