Preserving The Legitimacy Of The Supreme Court Must Outweigh Partisan Anger

Protesters on steps of Supreme Court - Brett Kavanaugh confirmation - SCOTUS

Conservatives lived with what they saw as a left-leaning, activist Supreme Court for decades without undertaking serious efforts to undermine the institution. But while the American Left rightly decries the various attacks on governmental institutions in the Age of Trump, their anger at the confirmation of Brett Kavanaugh is leading them to do precisely that which they say endangers the Republic

I spend a lot of time criticizing the American news media, and rightly so since there is a lot to criticize in this so-called renaissance of print journalism in the Age of Trump. I often single out the New York Times for particular criticism – their claim to run a scrupulously impartial and ideologically neutral newsroom is risible when their opinion pages are stacked 10-1 with not just left-wing progressives, but the kind who have drunk deep from the well of social justice and are now utterly high on the most poisonous distillation of identity politics dogma.

But I also feel compelled to give credit where credit is due. While the New York Times and other prestige media outlets may devote large portions of their time and resources to misrepresenting conservatives and stealthily promoting leftist agendas, today their Opinion email bulletin featured a progressive Op-Ed writer who actually sought to lay out the conservative perspective in good faith for the benefit and enlightenment of Times readers, rather than misrepresenting the conservative perspective to generate cheap outrage.

Addressing the ongoing rancor generated by the nomination and confirmation of Justice Brett Kavanaugh to the Supreme Court, Op-Ed columnist David Leonhardt clearly set out his own liberal position, but then laid out the opposing view in a way which did not openly invite ridicule or snap moral judgment.

Leonhardt begins:

In this polarized era, most of us don’t spend a lot of time genuinely trying to see a political issue the way that the other side does. And it’s often worth doing so. Let me give you an example.

He then goes on to state his own personal view (entirely in line with progressive thinking) that the Court is supposedly dominated by an “extremely conservative and partisan majority” sufficient to justify Democrats looking at potentially extreme ways to curb the institution‘s power.

But then Leonhardt says this:

But here, roughly, is how some conservatives think about the Supreme Court:

In the mid-20th century, a liberal court regularly overruled the popular will or blocked the democratic process. It happened most famously on abortion, but also on school prayer and other subjects. And even though Republicans won the White House in five out of six presidential elections starting in 1968, the court remained left of center, partly because a few supposedly conservative justices didn’t turn out to be conservative.

Yes, the current court is more conservative than the country, these conservatives might say. But we know how you liberals feel right now. Don’t go undermining an entire institution of government just because you have some complaints about it.

The Left does not like to be told of its glaring faults and hypocrisies, particularly by one of their own, so we will no doubt soon see what happens to the career trajectory of David Leonhardt. But laid out here, with no attempt at distortion, is the basic thought process behind most conservatives’ attitude toward the Supreme Court.

To be clear, I personally would not have nominated Brett Kavanaugh to the court over concerns about his views of executive power, and I would not have confirmed him after his performance in the confirmation hearings (yes, it’s natural to be angry at what you see as false accusations, but going on a conspiratorial rant about the Clintons is the antithesis of the impartiality which should be shown by a Justice of the Supreme Court, particularly one whose background was in the Republican presidential administration of George W. Bush). There are other judges with similar judicial philosophies who would have been better for conservatives from both a constitutional perspective and the short-term political perspective of the nomination process (cough, Amy Coney Barrett).

But while I would much rather have seen a different justice confirmed to the ninth seat on the Supreme Court, at this point I am more concerned about the hypocrisy of those on the Left who rend their garments about the damage which President Trump is doing to vital American institutions, while also actively seeking to undermine public faith in the court and even enthusiastically contemplating the idea of stacking the court to restore it’s leftward tilt, should they acquire sufficiently strong control of Congress after the midterms.

The dangers posed by President Trump’s erratic, ego-driven leadership are very real, and the precipitous decline in public faith in key institutions of government is a corrosive acid eating away at the American democracy. But those entirely valid fears are recast as cynical partisan pandering when their chief expounders are also doing their darnedest to destroy trust in institutions after having suffered a setback on the Supreme Court. And as a result of this cynical behavior, people are less likely to take the warnings seriously.

Worse still, the Democrats’ pain threshold is apparently so low that they could not tolerate a potential originalist/textualist (or more cynically, rightward) shift on the court for even a week before they started openly agitating to undermine the institution. Say what you want about the Republicans, and there is much to say – particularly concerning their disgraceful refusal to even consider Merrick Garland, President Obama’s eminently qualified Supreme Court nominee – but conservatives watched as the Burger, Rehnquist and Roberts courts handed down many decisions which they regarded as unconstitutional. Decisions which decisively reshaped the fabric of American life. And while nobody would say that Republicans took defeat gracefully or played the part of happy warriors, at least they did not try to stack the court or mount targeted efforts to delegitimize the institution altogether.

One can disagree with the originalist and textualist judicial philosophy which may now come to more prominence in the Supreme Court’s deliberations, but it is a valid and serious worldview worthy of respect, certainly no less so than the “living constitution” alternative. The answer to political setback is not to take one’s toys and go home in a temper – it is to seek to persuade voters that the progressive alternative is better such that Democratic senators and presidents are elected who can nominate like-minded individuals to the Court. The answer is not to falsely claim that theirs is the only pure and neutral interpretation of the constitution while the conservative perspective is uniquely partisan and dangerous.

Congress already has a rock-bottom approval rating, with hardly anyone respecting the legislative branch of government. The divisiveness of the Donald Trump era has seen one group hold out the present head of the executive branch to be worshipful and almost divinely given while the other group thinks he is Literally Hitler. That leaves only one branch of government held in significant public esteem – the judiciary, led by the Supreme Court.

Is undermining remaining public trust in the third branch of government and sawing the third and final leg off America’s governmental tripod the responsible thing to do right now? Is it even the most politically lucrative thing to do in the short and medium term, given how the Kavanaugh saga has energized the Republican base and put a handful of oncecompetitive seats further out of the reach of Democrats?

My opinions on how best to move forward are currently in flux, but I am attracted by propositions that the Supreme Court should no longer be populated with the same nine lifetime appointees, but rather by federal appeals court judges selected at random for shorter terms, on a staggered basis (see this Vox piece, which is sadly also a prime example of how the Left see theirs as the only legitimate point of view and recent progressive leanings of the Supreme Court not something even worth mentioning). Of course, this change is about as likely as President Trump admitting that he is a Russian stooge, resigning Nixon-style and flying away in a helicopter as a bemused nation watches him go. But it seems like a good potential approach, and one which would do much to depoliticize the highest court (even if the nomination of federal appeals court judges then became somewhat more contentious as a result).

But realistically, we go forward with the institutions we have in the form we have them, staffed by the people whom due process has put in charge. And there is a simple choice to be made by the American Left: do they press ahead and burn away remaining public faith in the Supreme Court, or do they commit – as conservatives did, when they saw that they would keep losing and losing at the hands of the judiciary unless they took a long-term approach to regaining influence – to advance their goals utilizing the legitimate, existing (if flawed) processes and institutions available to them?

Last week I attended oral arguments at the Supreme Court for the first time, hearing the somewhat dry but still fascinating case of New Prime Inc. v. Oliveira being argued before the then-eight sitting Justices of the Court. Sitting in the public seating, soaking in the weight of history within those walls and watching some of the best-credentialed lawyers at the top of their game argue before eight eminent and generally well-intentioned jurists was an unforgettable experience, especially given that I am now studying law in the shadow of that court, right here in Washington, DC.

This case was about employment rights and whether long-distance transportation workers were required to resolve workplace disputes through compulsory arbitration rather than through the courts – an edict which currently varies depending on whether the individual is a waged employee or an independent contractor (an increasingly irrelevant distinction in today’s economy). This kind of case is the Supreme Court’s bread and butter – deciding disputes whose facts would make most people’s eyes glaze over within thirty seconds, but which nonetheless need to be resolved in order to give direction to lower courts and advance the broader course of justice in the United States.

This was not one of the few hot-button social issues which attract hordes of placard-waving protesters to the courtroom steps. The case certainly matters, but primarily to the litigants involved and those who share their interests – transport corporations, unions and the like. Does the Left really want to wage such war on the legitimacy of the United States Supreme Court that even these workaday cases become seen by half the country as fraudulently or illegitimately decided? So that lobbyists, pressure groups and corporate interests feel more emboldened to undermine every negative decision and even mount targeted campaigns against specific Justices as a result of their opinions?

I share some of the American Left’s concerns about America’s direction, particularly the slide toward authoritarianism and protectionism (though I hold the Left equally if not more responsible for these phenomena than the Trumpists, who are largely a symptom, not a cause of America’s malaise). But for the life of me I fail to see how waging an all-out assault on the remaining credibility of the most respected branch of the United States government redounds to the Left’s long-term advantage, results in a more functional country or a more harmonious society. All I see is more bitterness, more mutual distrust and more negative energy fueling the ever-growing vortex of our ongoing culture war.

The Left have every right to be angry with some of the circumstances of Brett Kavanaugh’s nomination to the Supreme Court, and with cynical Republican political behavior prior to that. But they do not have the right to enjoy decades of often-amenable Supreme Court decisions, and then seek to tear down an institution vital to all Americans the moment they believe it may no longer adequately serve their progressive purposes.

In that regard at least, the price of the Left’s present paroxysms of rage may be more than this beleaguered country can bear.

 

Brett Kavanaugh swearing in ceremony Supreme Court - SCOTUS

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Donald Trump Victory Reaction: Clutching At Normality In The Age of Trump

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Using positive reinforcement to steer Donald Trump in a better direction might just work, but only if we stop the blanket hysteria

It is fair to say that the New York Times – which, it always pleases me to remember, not so long ago showed such fawning deference to executive power that they forced their journalists to warp the English language, describing the same actions as “torture” when committed by swarthy foreigners but merely “enhanced interrogation” when conducted by Our Boys – has not taken well to the election of Donald Trump as 45th president of the United States.

But the preface to today’s Opinion Report from the Times, written by David Leonhardt, strikes the right tone and gives some sound advice:

If you opposed Donald Trump’s candidacy, it’s easy to be angry about almost everything he now says or does. When he does something outrageous — like appoint a promoter of racism to a top job — it confirms your fears. And when he does something reasonable — like say he wants to improve the lives of all Americans — it feels hypocritical.

Yet I would still urge people to welcome any step he takes toward democratic normalcy, including those that feel hypocritical.

Trump ran a campaign that was opposed in important respects to American democratic values — and he won. The question that now confronts us is whether our values will change or whether Trump will begin to change.

One of the main reasons that President Obama and Hillary Clinton have reacted to his victory as positively as they have is their desire to move the country back toward democratic normalcy. It’s the right instinct.

I think this is good advice. The endless catastrophisation of Donald Trump’s victory – extending well beyond those areas where we have good reason to fear a Trump presidency toward those where there are no suggestions he intends to make backward steps – is now in danger of doing real harm, not only to the reputations of some of Trump’s most hysterical critics (those who railed against Trump for not committing to accept the election result, and are themselves now refusing to accept the election result) but more importantly to Americans’ faith in their own democracy and electoral system.

During the press pool at their first White House meeting, one could sense the look on Donald Trump’s face that the realisation of what he has wrought is now finally starting to hit. The man who probably didn’t seriously believe he would be in this position, either on the day he announced his candidacy or the day before the election, is rapidly coming to terms with the vast amount of institutional and bureaucratic machinery which he must master, and which will inevitably constrain whatever plans made during the campaign he was serious about enacting.

The mere fact that President Obama spent 90 rather than 15 minutes in that initial meeting walking Donald Trump through the basics (oh to have been a fly on the wall during that American Government 101 session) and plans to hold many more such remedial governance classes with an apparently grateful Trump suggests that the president-elect is finally beginning to accept that there are many things he does not know, and many areas where his administration will need to be guided by the advice and precedent left by history.

And as a reader of this blog pointed out, Americans (and the world) have thrown themselves into a panic before about incoming Republican administrations – with similar accusations of naivety, ignorance and incompetence – only to later have to grudgingly concede that the resulting presidencies were quite good, even historic.

Now, to be clear: I have no such expectations of Donald Trump, who is a tiny fraction of the man that Ronald Reagan was, and certainly nowhere near as faithful a friend to conservatism or the cause of liberty. Real, visceral concern about Trump’s presidency is entirely warranted, especially where it can be eloquently articulated (as opposed to inchoate paranoia) and particularly where its expression closes off doors to some of the more obviously dangerous Trumpian flights of fancy. And of course public protest has an important place in expression opposition to the Trump agenda. But let’s spare the sackcloth and ashes, particularly those of us with public platforms either large or small.

If the goal (for everybody) is to survive the next four years intact and to make Donald Trump’s presidency a successful one for America in spite of the man himself, then we need to ask whether mass hysteria, Trump catastrophisation and total implacable opposition to everything the new administration tries to do is really the best approach, or whether it might be better to provide affirmation and support where Trump does something right combined with forceful dissent and opposition where he or his team stray from an acceptable path, in the hope of teaching the new president some boundaries.

It is quite clear to this blog which is the better option. Keep screaming that everything Trump now does is tantamount to fascism will be like crying “wolf!”, causing the president-elect himself to block out the just criticism along with the superficial, and his supporters to harden in their support for him. We saw just how well that approach worked during the election campaign. Let’s not now make the same mistake during the transition and on into the new administration.

Where Trump does the right thing – even if it means walking back on previous, extreme campaign positions – it wouldn’t hurt to try giving credit where credit is due, at least for a trial period. If we know anything of Donald Trump’s character, it is that while he will take any publicity, good or bad, he much prefers people to think well of him.

And while the Democratic Party and intra-GOP opposition take their time to get organised, Donald Trump’s desire to be admired and respected may turn out to be a very useful constraining factor on his behaviour on office.

Those of us with real concerns about Donald Trump’s presidency should not throw away that potentially vital lever of control in our haste to criticise absolutely everything about the incoming president.

 

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