We are not far from basic rock-bottom now.

We’re close enough so that we can forget both Trump and Clinton and look past them to the future, which we have to do as a nation.

What this means is that we need to spend some time on the platforms of both parties, which eventually we’ll do.  But before we can even get there, we need to examine the future of the Supreme Court, and of Congress.

It’s early to be scaring people with visions of right-wing mania on the Court, or even soft left-wing liberalism there.  Generally, fears about the future of the Court surface only in the last ten days of a campaign, although as a running theme, concerns for it have been running sotto voce throughout the entire campaign.   Usually terror that the Court will swing violently one way or the other rise screeching as a last resort from whichever party looks more like failing than winning.  It is the nuclear persuasion in a campaign, a different nuclear than whose finger is on the “button.”

There is a consistency to these war-cries.  Conservatives want Justices of probity but bent towards big business, employers, insurance companies, and Congress.   Liberals want plaintiffs to have sufficient time to marshal their cases, generally want the Court to follow precedent, as each Justice swears he/she will do during confirmation hearings (and then promptly, assuming their chairs, neglects to remember.)  In popular legend, liberals support “the little guys,” and conservatives the one percent.  So, depending on your own leanings, you either believe the Court is above politics and makes decisions based only on merit.  Or that the Court is swayed by politics and popular sentiment, here and abroad.

We have a court now that is aging, but not old.  Given improvement in longevity and health, the current eight could linger for another ten years.  Should they wish.  Our hunch is that after the “Just say no” of the past eight years, some members may want to retire.  The partisan strain is not unknown to them.  Nor, incidentally, to us – ever since 2000, Scalia, Ginsburg, Alito’s bleeting and Clarence Thomas’ silences.

There is a dual scenario for what follows now.   Should the Democrats win the general election, the Senate may just confirm the man in front of their faces for the past twelve months on the theory that at least he’s more conservative than the Court is likely to get henceforward.  If the Republicans triumph, their battle will be to have kept the majority in the Senate so that they can agreeably guide the selection process in the direction of the putative list of nominees already released by the Trump campaign with which so many politicians of both stripes were content.

The only problem with scenario number two is now that we know the nominees better than before, we also know that the Donald can change his mind on a whim.  We aren’t sure who made up his stellar list of possibilities but he’s perfectly capable of tearing up the list and reaching out to some wonderful pal (and it will be a guy) with whom he has had some happy business dealings.  (As a sidebar, Donald’s waffling about amnesty and immigration may actually please some of his own party’s opposition to him.  “Why, it looks as though Donald can be flexible, and if that’s true, maybe we (the Republicans) can eventually control him.”)

The unknown in this equation is whether the American public will do as it has so many times before, realized that there is good reason for the separation of powers, and vote one way for a president and another for Congressional totems.  This “ticket-splitting” is what has resulted in the unrestricted success of incumbent legislators for years and years.   And it may well have some actual value.   Effectively it puts a “governor” on the power of the presidency, on the power of Congress, on the power of the Court.

For all the commentary about “down-ballot” problems with Trump as nominee, these might indeed be overcome if the Republicans basically ignore the top of their ticket to focus entirely on the Senate and the House.   But given the fear of being challenged by others in their own party, Republicans certainly don’t seem likely to be able to muster the guts to go their own ways.  (N.B., How many Republicans of note have rushed to Trump’s defense after Mrs. Clinton’s attack on the alt-Right this week?)

What most Americans want to believe is that the Supreme Court represents all of America, just as in theory the President does.  Which means, in this era of divide and conquer, of vicious, unsolicited and untruthful  charges and counter-charges, of Citizens United and tsunamis of cash being slid into pockets of House members and Senators on nearly every committee, the electorate still wants to believe in the basic goodness and stature of the United States.

If our candidates, at all levels, could please just remember that, we might find that in time our status in the world rises, our word internationally actually means something good, our economy has a decent chance of bringing citizens of every kind to a standard of living that is not imaginary only but real.



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