The World Has Gone Mad in 2020
Here’s why, and how we make it stop.
You’ve probably asked this yourself over the last few weeks or days: where is this all heading and how will it end up?
It’s a question being asked on both sides of the Atlantic, whether you are watching the people’s republic of CHAZ (Capitol Hill Autonomous Zone) in Seattle or Black Lives Matter protestors ripping statues from their foundations in Bristol, UK. It makes you wonder: how do we make it stop?
And just when you think we have reached peak madness, something even crazier comes along. As we speak, Algerian and Chechen Muslims are waging street battles with Kalashnikovs on the streets of Dijon in France. Armed warfare in sleepy Dijon is about as normal as a vegan wedding in Texas.
Because, like many others, you are probably struggling to keep up with it all, I thought I would create a showreel of 2020, a kind of lightning recap of the year to date, with hysteria ratings as a handy guide to how outraged you should be*. I do not apologize if you find this kind of flippancy offensive; it is a human truth that humor is essential in times of crises. And if you don’t think we are in crises you are either ex-Special Forces or in a deep vegetative state.
1) The Chinese virus from Wuhan.
Pictures of Chinese people shoving bats into soup and sucking them up with chopsticks and a side order of live rat help explain where the global plague might have come from, but did nothing to stop the World Health Organization’s eagerness to defend China, deny the existence of Taiwan, and talk rubbish about plague.
To the apparent delight of China (and socialists disguised as Democrats), lockdown spread faster than the plague itself, paralyzing entire Western economies and straining the pants of the petty corona-Stasi tighter than the wallet in Bernie Sanders’ pocket.
Hysteria rating: 10
In what will be known as The Greatest Hoax in History, successive governments locked down their countries at the behest of mad scientists. Unsure how to defend against an invisible enemy, the only option was to ‘follow The Science’.
Unfortunately, it turns out The Science was not only as reliable as the spelling of my dyslexic ten-year-old, but also more political than most sharp-heeled lobbyists in Washington.
‘The Science’ and ‘Socialised Healthcare’ are not politicly neutral, they are the Intelligence Arm of the Socialists. Just because someone wears a white coat or is labeled an expert does not make their every utterance true. I learned this as a ‘Security Guard’ at Disneyland Paris. Despite my uniform and a radio, I had zero interest in securing anything other than the ardent attentions of François from Space Mountain.
Hysteria rating: 4,000
3) #GeorgeFloyd death.
Clearly it is a terrible thing that any man or woman should die in police custody, for whatever reason. No one wants their life to end on a bad note, not even me, though I fear in my case that note is already written.
However, the erasing of a man’s history and his elevation to sainthood in the space of 8 minutes 46 seconds is something of a record even in the hysteria of 2020. A criminal record longer than my first marriage, a history of violence against black women, and levels of morphine and Fentanyl in his system strong enough to euthanize a horse suggest he may not have been the Black Jesus the socialists were praying for him to be.
I am sorry for him and his family. And sorry, too, that they had to have the dreadful Reverend Al Sharpton, clad in white polyester, screaming politics at them as they tried to grieve.
Hysteria rating: 23
4) Black Lives Matter protests.
As if waiting backstage for a moment just like #GeorgeFloyd, the Black Lives Matter movement was well-placed across the globe to capitalize on the tragic death of a black man in police custody.
Those countries without a #GeorgeFloyd of their own found other deaths to lend relevancy and credibility to their riots. In the UK we were given #BellyMujinga, a black lady who died of COVID-19. In France it was #AdamaTraoré. Same playbook, different names. All tragedies in themselves, but used to incite violence from a volatile crowd made more so by endless lockdown and unemployment.
Watching tens of thousands of BAME (Black Asian and Minority Ethnic) and white protestors crowd against each other, a human soup of bodily fluids, made me question just how much concern this community has for the coronavirus after all.
They said corona was racist, disproportionately impacting black families. But at the first opportunity to get some free stuff from Macy’s, somehow all that concern over racism went away.
Hysteria rating: 932
5) Taking a knee.
Those wanting to be seen as allies in the fight against whatever it was, figured out the fastest way to become a black ally was to take a knee. Sometimes this was literal, as in the case of soy-boy cops in London. Sometimes it was symbolic, as in hiding London’s Cenotaph (our Memorial to our Fallen) and Churchill’s statue at the behest of the Muslim Mayor of London.
Taking a knee is much more than a physical act. You are prostrating yourself to socialism and once you assume the position, it is game over. Doesn’t matter how low you go or how deep the hole you try to dig yourself into, you will never get low enough for the mob.
Now all statues are fair game and must be destroyed or removed. Then police must be defunded. Now an Autonomous Zone is created. Then there is the next thing that must be destroyed. All of it is negative: defund, undo, remove, destroy.
What Black Lives Matter really wants is revenge for sins of the past. And revenge for history has no end. See the plight of the whites in South Africa for details.
Hysteria rating: 892
6) People who menstruate.
JK Rowling high-kicked herself into the hysterical abyss with this tweet, suggesting that people who menstruate are called women.
Clearly this sort of wild biologically-accurate assertion is no longer acceptable in the mad ’20s.
Accordingly, she has been threatened with death, had the cast of Harry Potter stick the boot in to better align themselves with the trans-mafia, and been dropped from everything. Even her publishers are downing tools (which is a bit like digging a hole in the luxury liner you’ve been cruising in).
I am content to be called many things by my critics: horse-face, Trump-lover, wrinkled ball-sack, trans-Ellen. But I REFUSE to be called a person who menstruates. And I hope every single one of those festering kids made famous by JK Rowling and now attacking the hand that fed them never earns a single penny again.
Hysteria rating: 8
The biggest question that remains is: how do we make it stop?
And the answer is surprisingly simple. To date, 2020 has been in the hands of the socialists, from the Wuhan flu to the lockdown to the contrived Black Lives Matter protests. Their momentum is derived from taking things away through chaos and destruction.
Shut down, stop, defund, destroy, remove, steal, kneel.
To stop all this madness, we do the opposite. We open up, start, invest, rebuild, replace, return – and we stand tall as we do it.
We stand strong, we get furious and we rebuild America. The Great American Comeback is underway. Hysterical Britain will be looking to you for hope.
*Hysteria ratings are as reliable as the math of AOC.
Why We Won’t Have a Civil War
But there is a more worrying possibility.
Bruce Thornton is a Shillman Journalism Fellow at the David Horowitz Freedom Center.
The latest take on the recent riots and protests is that our political “cold” civil war is turning hot. The political polarization of recent years is now turning increasingly violent, with each side hunkering in its hardened silos and elevating the threat-level to DEFCON 1. The coronavirus and its attendant hysteria have increased this sense of dread and apocalyptic angst. That’s why, the pundits tell us, we the people are “yearning for normal,” a longing that will help determine the outcome of the presidential election.
This fear is overblown. We’re mistaking an availability error––the fallacy of coming to conclusions based on what is most recent and first comes to mind––for a more probable reality. But that doesn’t mean that we are not facing serious political danger in the coming months.
There are several reasons why a civil war is unlikely. First, we live in a world saturated with news and images 24/7, skewing our sense of reality. Moreover, information is refreshed in seconds and accompanied by dramatic visuals. Way back in 1962 Daniel Boorstin was decrying how the image became the reality, or what he called “pseudo-events,” a “thicket of unreality which stands between us and the facts of life.” That world of images has become the world, crowding out all the other real data and events that define our daily existence. In such a world it’s easy to jump to improbable conclusions.
And images love the drama of conflict and violence. “If it bleeds, it leads,” as the television newsroom cliché puts it. Additionally, these images typically lack a larger context. They are framed, often intentionally, to heighten the emotional drama at the expense of accurate understanding. Such events are perfect for creating the “propaganda of the deed,” as the old anarchists put it, the promotion of political ideology through emotionally charged, usually violent images. So powerful are these images that they can create a seeming reality.
Consider how the disturbing images of George Floyd’s brutal treatment by a callous cop––the latest in a series of such encounters that are actually rare between policemen and unarmed black males––has created a pseudo-reality in which white cops systematically murder unarmed black men. This is one of those manufactured “crises” that the left is not letting go to waste, but exploiting in order to leverage tragedy into political power––in this case, replacing the president and taking back the senate.
But couldn’t such a volume of manipulated images and their attendant duplicitous commentary spark a civil war? Anything can happen, but the transient nature of such events like the riots, and the short attention-spans of most viewers, argue against it. It’s unlikely the current civil unrest will persist over the next four months until election day. And the more the images fill our screens, the more possible a backlash arises among ordinary Americans who don’t cotton to vandalizing and destroying small businesses, or killing innocents, or defunding police departments.
Next, we forget how parochial the political class, whence comes most of the commentary predicting a civil war, really is. Those of us who are immersed in politics forget that the majority of voters and normal people are not as invested or even interested in the daily fluctuations of opinion. They’re busy trying to make a living and raise their kids, or hanging out with their friends and families, or enjoying entertainment. Even among registered voters, polls consistently reveal that opinions on issues are very different from those of the punditariat. For example, in recent years, catastrophic global warming has obsessed commentators, mostly on the left. But this issue repeatedly ranks near the bottom of issues voters are concerned with. More recently, the sympathy for defunding the police among political and media elites is much lower than the 64% of people opposing it.
With 154 million registered voters in the U.S., then, it’s very difficult to know what issues will motivate them come election day. We learned this in 2016, when the political class and its hired pollsters failed to take seriously Donald Trump’s chances of winning. It was a repeat of the mythic quote from film critic Pauline Kael, “I don’t know how Nixon won, nobody I know voted for him.” But the actual quote is just as revealing of the elite’s political parochialism: “I live in a rather special world. I only know one person who voted for Nixon. Where they are, I don’t know. They’re outside my ken. But sometimes in a theater I can feel them.” Not as punchy as “smelly Walmart shoppers,” “bitter clingers,” and “basket of deplorables,” but the sentiment is the same.
Such a disconnect between the opinions of the political class and American reality does not suggest enough of a broad and passionate consensus necessary for an actual civil war involving mass violence. A revolution can be started by a committed minority: In 1917, 10,000 Bolsheviks seized power over a country of 126 million. But most of those millions were poor and dispossessed, and had lived most of their lives under an autocrat. In a rich, participatory democratic republic such as ours, with regularly scheduled elections and divided powers, such a feat is more difficult.
But what about our Civil War, which killed over 700,000 Americans and sowed the seeds of regional and racial strife still with us today? That was a different world in 1861, when regional differences were more distinct, political identities more local, and experience with weapons and fighting more widespread than today. When we watch on our screens the well-nourished, leisured protesters, looters, and vandals, we don’t see the kind of young men who did hard physical labor from an early age, who were familiar with disease and early death, and who knew how to handle firearms. There were no snowflakes in the 1860s.
Indeed, apart from opportunistic thugs and felons, the bulk of the “troops” who would comprise one side of some civil war are pretty much denizens of the young comfortable classes. Their disruptive and violent behavior is happening because governors, mayors, and police chiefs have over the last decade sent the message that they will not respond with mind-concentrating force in order to restore order and hold rioters accountable. On the contrary, they encourage and validate the kids’ behavior with their words and their deeds like kneeling in solidarity with overgrown petulant teenagers. It’s hard to imagine one of these snowflakes in a maelstrom of violence like Shiloh or Antietam.
Also don’t forget, as Townhall’s Kurt Schlichter reminds us, that one side of this imagined civil war already has most of the guns––perhaps as many as 300 million, with 60 million more having been sold just in the last few months. And which side do you think most soldiers, veterans, and police officers––the citizens most highly trained in the use of firearms––would take in such a civil conflict? The woke soy-boys and “resistance” posers of Chazistan, whining about the “homeless” people stealing their food, and begging for donations of vegan meals?
Finally, the “looming civil war” meme reflects the old “bipartisan divide” or “polarization” complaint regularly trotted out by commentators disturbed about how “nothing gets done” and “problems aren’t solved” by politicians who won’t “reach across the aisle.” In fact, as James Madison reflects in Federalist 10, this country was born in factional strife created by the great diversity in settlement patterns, denominational strife, attitudes to democracy, and distinct economic interests, folkways, mores, customs, and tastes. These “factions,” which are not anomalies to be corrected but “sown in the nature of man,” as Madison wrote, are why we ended up with a government of divided powers and checks like the sovereignty of the states. And despite the progressive century-long weakening of those mechanisms for preventing the concentration of one faction’s powers at the expense of others’ freedom, they still work well enough to forestall the mass mobilization of factions necessary for civil war.
That a civil war is unlikely, however, doesn’t mean that there aren’t dangers ahead. The Dems have suffered decades of disappointment in their desire to “fundamentally transform America” into a socialist state. After the euphoria of Obama’s mediocre two terms, the success of a political outsider from a bare-knuckle commercial world alien to most of the postwar political class has addled with resentment and rage the Democrats and NeverTrump Republican quislings. They are doubling and tripling down on the left’s mantra “by any means necessary,” even to the point of endorsing socialist and utopian policies––eliminating carbon-based energy, forgiving $1.6 trillion in student-loan debt, free college tuition, and even defunding the police––that are political poison for a majority of Americans. And they have pinned their hopes on a corrupt serial groper and grifter not even in control of his mental faculties.
All of which should presage an overwhelming victory for Trump. But let’s not be hasty. In just a decade this country has changed in ways unthinkable 20 years ago. Trump has had to face not just the Democrats, but the universities, the media, the entertainment industries, and amoral corporations throwing in with the “woke” mob, no doubt to cultivate brand loyalty. And he’s had to battle so-called conservatives so blinded by resentment and wounded self-love that they can’t see how disastrous a Hillary Clinton presidency would have been, or a Joe Biden presidency will be, for everything true conservatives hold dear––unalienable rights, political freedom, a vigorous civil society, and personal autonomy.
Civil war? Unlikely. A radical transformation of the United States from a government of, by, and for the free people, to a regime of, by, and for the illiberal technocrats and their dependent clients? That’s a much more possible outcome, and one worth worrying about.
Supreme Court Protects Illegal Immigrants at the Expense of the Constitution
Chief Justice Roberts moves further to the Left.
The Supreme Court rejected by a 5-4 vote the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program initiated by President Obama in 2012 unilaterally via an executive order. In an opinion written largely by Chief Justice John Roberts, the Court held that the Trump administration’s action reversing Obama’s executive order was “arbitrary and capricious.” The administration needed to go back to square one and come up with a better rationale for its decision, the Court ruled. Roberts and the liberal foursome, with whom he is increasingly aligning himself, were the ones who reached an “arbitrary and capricious” decision. They threw judicial restraint to the wind.
Just as Chief Justice Roberts had done in upholding the constitutionality of Obamacare on dubious legal grounds, he joined his four liberal colleagues in twisting the law to reach a desired policy outcome on behalf of the illegal immigrant “Dreamers.” Roberts is morphing into another in the line of Republican appointees to the Supreme Court who represented themselves as conservative jurists but have sided more and more frequently with the liberal bloc once they secured their lifetime seats on the Court.
In this case, Roberts used a pseudo-technical interpretation of the Administrative Procedure Act (APA) to conclude that the Trump administration’s decision to rescind Obama’s DACA executive order did not meet the APA’s standards requiring “a reasoned explanation for its action.” To the contrary, President Trump had a compelling reason to reverse, by his own executive order, the executive order of his predecessor with which he had sharp disagreement on legal as well as policy grounds. President Trump believed that Obama had exceeded his legal authority in issuing his DACA order in the first place and did not want to expend federal resources in defending the DACA order against anticipated legal challenges. Such allocation of executive resources and balancing the risks of litigation against the executive department are entirely within his discretion as the nation’s chief executive officer.
Obama’s DACA program had granted young immigrants who were brought to the U.S. illegally as children the right to work and stay in the U.S. without fear of deportation. DACA recipients also became eligible for other benefits. The so-called “Dreamers,“ many of whom are now adults, were in the country illegally when Obama unilaterally decided to “legislate” their temporary legal status and conferral of benefits through executive action. DACA altered how the immigration laws applied to this large class of illegal aliens.
Never mind that the Trump administration was on solid ground in concluding that Obama had exceeded his constitutional authority in issuing his DACA executive order in the first place. The Chief Justice sidestepped this fundamental legal issue. He placed more importance on the DACA recipients’ reliance on Obama’s order that even Obama himself had previously doubted he had the constitutional authority to issue on his own. Roberts for all intents and purposes stepped out of his judicial role and stepped into the shoes of an advocate for illegal immigrants. Never mind, as Justice Clarence Thomas put it in his dissenting opinion, that “the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” According to Roberts’ “reasoning,” the Trump administration must do a better job explaining the rationale of its rescission of Obama’s DACA executive order than the Obama administration had done originally in justifying the DACA order itself.
“Chief Justice Roberts does it again, convoluting the law to appease the D.C. establishment,” Representative Jim Jordan (R-OH), Ranking Member of the House Judiciary Committee, said in reaction to the Supreme Court’s DACA decision. “By ruling that President Trump cannot terminate DACA in the same manner that President Obama used to start it, the Court’s decision creates two standards of executive power: one for President Obama and another for President Trump.”
One president’s executive order is not the equivalent of legislation duly passed by Congress and signed by the president that is legally binding on the next president. It is not even a regulation that has gone through an extensive public comment process and complied with other rigorous procedural requirements. The next president is free to exercise his own executive authority to either accept his predecessor’s executive order, rescind it, or replace it with another order of his own. President Trump’s executive order did nothing more than restore conditions for the “Dreamers” to the way they were before Obama issued his DACA executive fiat without Congressional authorization or even the rigorous procedural processes required for lawful regulations.
In reversing Obama’s executive order with his own executive order, President Trump first gave Congress the opportunity to take up the “Dreamers” issue in new legislation where making such significant changes in immigration law policy belongs. Congress has failed so far to pass such remedial legislation that would be acceptable to the Trump administration. The judiciary has no business injecting itself into a political dispute over immigration policy between the legislative and executive branches. But that is precisely what Chief Justice Roberts has now done in joining once again with the liberal wing of the Court that likes to legislate their policy preferences from the bench.
As Chief Justice Roberts admitted in his opinion, “DACA was rescinded because of the Attorney General’s illegality determination.” That should have been the end of the case. But Roberts and his liberal colleagues ignored the core issue of DACA’s illegality. They decided to legitimize Obama’s illegitimate executive order for politically expedient reasons.
The administration should have assessed “the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients,” Roberts wrote in remanding the matter to the Department of Homeland Security (DHS) “so that it may consider the problem anew.” It is not up to the Supreme Court to prescribe policy options that the executive branch must consider in order to save a legally defective executive order from a prior administration.
Justice Clarence Thomas saw right through Chief Justice Roberts’ sophistry. Justice Thomas undertook the careful analysis of federal immigration law and the limits of its delegation of authority to the executive branch that Chief Justice Roberts neglected to do. The Obama administration lacked the “authority from Congress to either reclassify removable DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal procedures,” Justice Thomas wrote in his dissent. “No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA is substantively unlawful.”
Justice Thomas also warned of dangerous consequences that may flow from the Roberts majority opinion. “Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda,” Justice Thomas wrote. “Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
Chief Justice Roberts has claimed to have great concern for ensuring public acceptance of the legitimacy of the Supreme Court. “In our branch, our job is to interpret the law and ensure compliance with the Constitution,” Roberts said last September. “We will decide cases according to the Constitution and our laws, without fear or favor.” The Chief Justice flunked this standard with his DACA opinion and placed the legitimacy of the Supreme Court’s rulings on hot button issues in further jeopardy.
* * *
Former Vice President Joe Biden speaks during the Democratic candidates debate in Washington, D.C., March 15, 2020. (Kevin Lamarque/Reuters)
Even if Democrats know why Biden must go, they haven’t a clue about when or how.
Joe Biden is the apparent Democratic presidential nominee. After all, he had a seemingly insurmountable lead in delegates going into the rescheduled August convention in the postponed Democratic primary race.
Biden was winning the nomination largely because he was not the socialist Bernie Sanders, who terrified the Democratic establishment.
Biden was also not Michael Bloomberg. The multibillionaire former New York City mayor jumped into the race when Biden faltered and Sanders seemed unstoppable. But Bloomberg spent $1 billion only to confirm that he was haughty, a poor debater, and an even worse campaigner. He often appeared to be an apologist for China and seemed clueless about the interior of the United States.
The least offensive candidate left standing was Biden. Many Democratic primary voters initially had written him off as an inept retread, a blowhard, and an impediment to the leftward, identity-politics trajectory of the newly progressive Democratic Party.
On the campaign trail, Biden insulted several voters, using insults such as “fat,” “damn liar,” and, weirdly, “lying dog-faced pony soldier.”
Biden has been unable to keep his hands off women. Even his supporters cringed when he was seen sniffing the hair, rubbing the shoulders, or whispering into the ears of unsuspecting females, some of them minors. Stranger still, Biden waxed on about his commitment to the #MeToo movement. The handsy Biden has insisted that women who made accusations of sexual harassment must be believed.
During the year-long rise, fall, and rise of his campaign, the 77-year-old Biden often appeared confused. He was occasionally unable to remember names, places, or dates. Biden would try to speak ex tempore but seemingly forget what he was trying to say.
The coronavirus epidemic and subsequent lockdown seemed to offer rest for Biden. But the more he recuperated from campaigning and sent out video communiques from his basement, the more he appeared to confirm that his problem was not simple exhaustion or age but real cognitive impairment.
At first the media complied — as it always had with Biden’s troublesome habit of violating the personal space of women, his bizarre put-downs on the campaign trail, his exaggerated he-man stories, his mental lapses, and his dealings with Ukraine. Again, to the Democratic establishment, Biden was far preferable to Sanders. Had the socialist Sanders won the nomination, he likely would have wrecked the Democratic Party in 2020.
But Biden misjudged the liberal media. Reporters were at first willing to overlook his liabilities. But the more Reade persisted in her accusations and the more the media ignored them, the more embarrassing the media’s utter hypocrisy became. Journalists had torn apart Supreme Court nominee Brett Kavanaugh over allegations of sexual assault, after all.
In other words, the media was most certainly not going to be degraded on behalf of a nominee who may no longer seem viable.
In the three months before the Democratic National Convention, Americans will witness some of the strangest political scrambling in presidential campaign history. Simply put, how does the Democratic Party cut from its neck an albatross — one who has the most delegates but is likely not up to serving as president?
And how to do the deed without inciting the moribund Sanders campaign and his army of Bernie bros?
But even if Democrats know why Biden must go, they haven’t a clue about when or how.
© 2020 Tribune Content Agency, LLC
If we think the 2016 playbook is going to win the 2020 game, Joe Biden will make it to the Oval Office without ever having to leave his basement.
It’s an old story: fighting the next war with the last war’s battle plan, as if prior success guarantees future victory. So here was President Trump after the Supreme Court gave him another thumping on Thursday, vowing to release “a new list of Conservative Supreme Court Justice nominees” in September — i.e., around the back stretch galloping toward the Election Day finish line.
If you needed a laugh to get you through just-another-day-at-the-Apocalypse, our “Conservative” president then proceeded to post no fewer than 21 tweets describing the combined hundreds of millions of dollars in infrastructure spending he plans to shovel out to states he hopes to win in November.
By the way, with Trump in the White House and the McConnell-led Republican Senate having slyly buried periodic public debates over the debt limit, the nation is now over $26 trillion in the red. If you’re keeping score, that’s an increase of over $6 trillion since January 20, 2017. Obama spending was unprecedented, but Trump is on pace to exceed it. And don’t tell me about the unforeseen coronavirus crisis; debt was already accumulating mountainously before the lockdown, and the president keeps saying more infrastructure spending is imperative — it may be the only thing he and congressional Democrats can agree on.
The point being that the president is not a conservative, in the sense either of political ideology or temperament. He has some conservative sensibilities and has mastered some right-wing tropes. But he’s not a conservative thinker wedded to a conservative policy agenda. That’s hardly a revelation. He’s not wired to think in those terms. He’s not a progressive, either.
The euphemism has always been that the president is “transactional.” Of course, that only makes sense as the simulacrum of fixed principles if there is something identifiable that the transactions are designed to advance. In the president’s case, that would be Donald J. Trump. That is not an original observation, either.
What conservatives and Republicans often gloss over, since it is not very flattering, is that we are transactional, too.
Which brings us to this business of fighting the last war.
When Donald Trump was a presidential candidate, his impulse — and, as we’ve seen, there is no seven-second delay between an impulse and its verbalizing — was to assert that his sister would be a “phenomenal” nominee should a Supreme Court vacancy open up. Judge Maryanne Trump Barry, the president’s older sister who has since retired from the Third Circuit federal appeals court, was a dogmatic supporter of abortion. Trump’s suggestion thus caused consternation on the right, particularly among legal scholars and social conservatives. He realized a retraction was in order, tout de suite.
The incident turned out to be significant. Trump was not necessarily persuaded by the virtues of originalism and limited government (though we can always hope). He did, however, grasp the power of the issue, its galvanizing effect on the voters he was wooing.
When Justice Antonin Scalia unexpectedly passed away in February 2016, the candidate realized that the campaign had shifted. It would no longer feature the usual vaporous debate over Supreme Court nominees. Now, the election might well turn on the concrete question of whether a Republican or Hillary Clinton should be the one to fill the pending vacancy. Indeed, the vacancy in its suddenness pushed to the front of voters’ minds the advanced ages of many remaining justices, and the likelihood that the next president would have more than one vacancy to fill.
Donald Trump was fast on his feet. He sized up the esteem in which Republicans hold the Federalist Society, as well as the consternation among his base supporters that a President Hillary Clinton would replace the iconic Scalia with a progressive activist. Trump saw that it was demonstrably in his interest to become the champion of conservative judges in the Scalia mold. He was deft enough to see that leaning on the Federalist Society for this purpose would not only signal the right nomination instincts but also earn him some credibility with skeptics who saw Trump as a New York limousine liberal.
It worked. To his detriment, though, the president has never allowed himself to acknowledge how narrow — I think, how miraculous — his victory was. Hence, the babble about “the Electoral College landslide.” More to the point, the president now seems not to see how unique were the conditions of the 2016 battleground. Replication of that battle’s plan is not a path to 2020 success.
Once again, Chief Justice Roberts joined the four-justice liberal bloc to preserve a signal Obama policy achievement. Last time it was Obamacare, this time it’s DACA. Though sold to the Right as a rock-ribbed conservative, Roberts essentially held that a new president may not reverse the last president’s illegal acts in the same peremptory manner in which those acts were imposed. Or, if you prefer, even if Obama himself conceded that he had no authority to issue a decree, Roberts will treat the decree as legitimate law. I wouldn’t bet the ranch that the chief justice would be as solicitous if Trump were to start issuing similar “policy memos” that usurp legislative power, but just imagine what a Biden administration could make of the new dispensation.
What about the president’s responsive tweets, quoted at the top? With due respect, the rights to armed self-defense, life, and religious exercise are not at stake because of a failure to nominate and confirm reliable conservative jurists. They are at stake because Republicans cling to the fantasy that the Supreme Court is our highest legal institution. In reality, it is a super-legislature: It is the last word on vital policy matters that should be decided democratically; and its members are life-tenured — politically unaccountable even as they do politics rather than law.
The liberal justices typically vote as a bloc. Like good legislators, what they care about is the result. They are all brilliant lawyers, so once they decide what progressive policy result should be achieved, they transmogrify as needed into originalists, textualists, procedural sticklers, organic constitutionalists, sweet-mystery-of-life liberty fetishists — you name it, they can play it.
Likewise, Chuck Schumer and the other Senate Democrats demand to know how every nominee would rule on Roe v. Wade, on guns, on health care, on boys in the girl’s bathroom, on the environment, on the due-process entitlements of “migrants,” jihadists, and sundry anti-American transgressives, etc. All prospective justices bob and weave, but Democrats are unapologetically relentless in grilling Republican nominees. None of this GOP pablum about how “it would just be so wrong to probe how a jurist might grapple with an issue that might come before the Court — because we must respect the integrity and independence of the judicial process.” Democrats say, “How are you going to vote? That’s what we need to know.” Republican nominees must ritually incant that “Roe is settled law because, um, stare decisis”; Democratic nominees must simply show up for work on the first Monday in October.
It will not do for one side to honor jurisprudential protocols and fret over the Court’s reputation, while the other side remorselessly pursues its “Change!” agenda. While President Trump is neither a political philosopher nor a juridical theorist, he is often more perceptive than egg-heads and swamp denizens when it comes to that kind of brute power dynamic.
This is not about the legal acumen of the nominees; it is about the political nature of the institution. Somebody on the Republican side better figure that out. If we think the 2016 playbook is going to win the 2020 game, Joe Biden will make it to the Oval Office without ever having to leave his basement.