Thursday, February 09, 2017

Disheartening and Demoralizing But Mainly Distracting

by Michael Dorf

Yesterday Judge Gorsuch told Senator Blumenthal (D. Conn.) that he found President Trump's disparaging tweets and statements about the judges considering the lawfulness of his Executive Order on immigration "disheartening" and "demoralizing." How did this play in the press and the blogosphere? The main coverage in the NY Times shows Gorsuch's views to be widely shared by scholars and others across the political spectrum. But astute observers immediately suggested that Gorsuch's statement was shrewd politics as well. By showing himself to be an independent judge standing up to the president who has nominated him to the Supreme Court even before he has had a Judiciary Committee hearing, Gorsuch strengthens his position among red-state Democrats, who will now find it harder to oppose him. And that, naturally enough, led to a conspiracy theory suggesting that this was the plan all along: The Trump administration planned or at least gave the ex ante green light to Gorsuch's comments precisely as part of the confirmation strategy.

How plausible is the conspiracy theory? Plausible enough that it appears not just in your Facebook feed but in an article in the Washington Post.  But still not very plausible, in my view, and if you read the Post story all the way to the end, you see that even the Democratic National Committee, which has been pushing the conspiracy theory, does not confidently assume that Trump himself was in on the supposed ruse. And I don't see how he could have been. Let me game this out.

Suppose you are Judge Gorsuch. You are about to pay courtesy calls to Senate Democrats. You expect that you may be asked about Trump's attacks on judges who rule against him. You don't want to lie but you don't want to jeopardize your confirmation. So you ask Reince Priebus or some other high-ranking White House official whether it would be okay to say what you think, which is that while it's fine for a president to disagree with a court, he should refrain from running down the legitimacy of the judicial branch and that the president's comments are therefore disheartening and demoralizing. Priebus says "go ahead. Say that." Would you?

If you were a simple careerist, you would not take the word of Priebus alone. You'd want to know whether Trump would be okay with "disheartening" and "demoralizing." After all, this is the most erratic president in the history of the republic, with a strong vindictive streak. Even if these are relatively mild condemnations, they are condemnations nonetheless, and so you would face a non-trivial risk that in response the president would withdraw your nomination. So if you were being purely pragmatic, you'd ask Priebus whether he could clear the answer with Trump himself.

Yet that seems absurd. Imagine the conversation.

Priebus: Mr. President, Neil Gorsuch has a question.

Trump: Who?

Priebus: Judge Neil Gorsuch, your nominee to the Supreme Court.

Trump: Oh right. What's the question?

Priebus: He wants to know whether it would be okay for him to say that your tweets and comments challenging the legitimacy of federal judges and the whole federal judiciary are disheartening and demoralizing.

Trump: Is that a joke?

Priebus: No sir.

Trump: Of course it's not okay. I'm trying to keep the country safe. I wasn't talking about him. I was talking about those Democrat judges who are siding with terrorists.

Priebus: Judge Robart is a Republican, sir.

Trump: Who?

Priebus: Never mind. Anyway, so that's a no on disheartening and demoralizing?

Trump: You bet your Badger ass it's a no.

Really, could it go any differently? And if not, that is, assuming that Judge Gorsuch did not have advance assurance that Trump was okay with "disheartening" and "demoralizing", I for one am prepared to give him some credit for taking a risk.

BUT, notice where we now are. The whole episode has done two things for Team Trump.

First, the bar for Gorsuch has been moved and lowered. We are not talking about why the seat is open--Senate Republicans' refusal to hold hearings for Merrick Garland--and we're applying a standard of bare minimal qualification. Yes, it's good that Judge Gorsuch has enough backbone to run the small but non-zero risk of having his nomination withdrawn for criticizing the president, but it should be taken for granted that any Republican or Democratic nominee who is minimally qualified by way of judicial temperament would disapprove of a president aiming to delegitimize the judiciary in the crudest way. The conversation has shifted to civics-lesson ground and completely off of the Garland-related process concerns and the deeply conservative views of Judge Gorsuch on quite consequential matters.

Second, we have moved step by step away from the fundamental moral issue that gives rise to the episode in the first place. Trump's grotesque executive order is immoral because it gratuitously causes suffering to tens or hundreds of thousands of people without advancing national security--indeed, through the backlash it inspires, probably undermining national security. The lawsuits to block the order are already at one level of remove from the fundamental moral issues, because statutory and constitutional law permit a great deal of immoral policy, especially with respect to immigration. Trump's indecorous attacks on the judiciary are at a second remove. Judge Gorsuch's response takes us a third layer away. Speculation about how that response will affect the confirmation process is layer four. And the conspiracy theorizing about who's behind the Gorsuch comments is layer five. Thus, here, as in other contexts, one outrageous Trump outburst distracts the media and the public from something even worse.

Some of this is probably deliberate, as the great cognitive linguist George Lakoff argues. But some of it quite likely is not. An administration that can't operate the light switches in the White House is probably not very good at checkers, much less five-dimensional chess. But in the end, it doesn't really matter whether or not Trump and/or his minions are deliberately playing the media and the public. One way or another, they're being played.


Joe said...

I gather it's possible that Team Trump uses certain strategies that they know that Trump himself doesn't have the self-control to consistently follow. The charm here is that it plays into his tendencies even if he wasn't the one who thought of it.

It is of course a low bar and any half-way skillful nominee would realize it was in his or her best interests to say something along those lines. The matter would surely come up in the hearings, so why not pre-empt the matter like this somewhat? And, the language (without more) has a certain cheap nature to it. It is not just "disheartening and demoralizing," but a basic challenge to the legitimacy of the courts. He isn't calling the guy a clown or something. He said "so-called."

I don't know his full remarks, but this particular sound bite is what is getting the most attention.

el roam said...

Thanks for the post , many complications , endless in fact , yet , In my view , there is more plausible option to look at :

Judge Gorsuch , has just been appointed to that post ( until approved by Senate of course ) . In such, whatsoever, he has certain responsibilities, public responsibility. In light of that announcement of Trump , attacking so the judiciary , he can't stay mute , can't stay oblivious . He is in the focus of the events . He is in a transitional state of being a candidate for the supreme court. If he stays silent and put, It would appear, in the light of such direct attack, that: he has become humble and cowered, but not to jeopardize his appointment. Other judges , are already in , and don't mix their independent status , with politics , but he : can't stay mute !! He must look as impartial , honest , independent , and not the puppet of Trump . His integrity and loyalty are not to the politician appointing him, but, to the duties of a judge, and judiciary. And why again ?? because he is in the focus of events currently . couldn't simply stay mute !!

That post , and the whole event , show clearly , the defect of the system , where , politicians appoint a judge . Judges are in no way subordinate to no one , but to the law , and ruling of law . As such , politicians , are the last on earth , to appoint judges .


Shag from Brookline said...

If we can agree that the president nominating a justice/judge and Senators approving the nomination are politicians, under the Constitution that is the procedure. Perhaps a constitutional amendment is called for to keep politicians out of the appointment process. CJ Marshall was clearly a political choice back in 1801. Perhaps some earlier justices were political choices as well. Many, perhaps most, since were also political choices.

Frankly, I think the scenario for judge Gorsuch was scripted and will be further edited along the way to Senate hearings. Vetting is extensive because of the potential political implications. It might be naive to think that somehow eliminating politicians from the process might improve the role of the Court. I wonder what a well reasoned process might read.

matt30 said...

Whether Gorsuch gets confirmed or not I don't think makes a huge difference in the 30 year history of the court. I'm satisfied enough that the man is competent enough to put together a well reasoned opinion and make a good faith effort to remain internally consistent.

In the sense that we're talking about whether Gorsuch's comments/history suggest that he won't just be a Conway/Pribus functionary, I think that's an improvement on the normal "reading the tea leaves" attempts to figure out how a nominee will come out on hot button issues.

As a political strategy, I think you're not giving the Democrats enough credit. Anyone who has worked for a judge knows that you'll eventually get the sermon about the importance of the independent judiciary. I suspect that Gorsuch was just giving an unthinking response in that vein and the Democrats pounced on the opportunity to create a little news. But even if it was planned by the administration, it backfired as soon as Trump opened his big mouth. I think Democrats are starting to realize that, whether or not Gorsuch gets confirmed, the court isn't going to be radically different than it has been for the the last 30 years. It's the perfect time to play nonsense games (instead of doing it with, say, the debt ceiling or something else more important).

IMO, the ultimate objective of the Gorsuch fight should be the future of the filibuster and whether this country should look more like a parliamentary democracy (where the party in power has the ability to really shape policy and ultimately be responsible for the outcome) or whether Democrats are going to have to remain the minority party that bails the GOP out of its totally nutso ideas and gets zero benefit from it.

Joe said...

President Washington balanced various things in his judicial nominations, including certain political concerns.

I don't think "competent enough to put together a well reasoned opinion and make a good faith effort to remain internally consistent" is a high bar ... few justices violated it, even if they weren't that great.

As Prof. Dorf recently noted, and the comment basically says too, the nominee isn't ultimately about Gorsuch individually. But, even there, putting aside maybe Harriet Miers, the concern wasn't independence in recent years (that would be an issue let's say for the Fortas nomination). Trump's actions will cause a minority to simply not trust anyone he picks; on the front, he is aggravating the problem, such as when he fans the flames of 'voter fraud' beliefs or 'fake news' etc.

The concern is ideology and his vote can make the difference there as seen by the actions of the current at times 4-4 Court.

But, though how blatant is unclear, it's quite possible independence will be a concern for some lower court Trump nominees -- his mindset makes it much more likely he will nominate hacks there. Something not generally a concern from what I can tell from presidents of both parties in recent years (the concern again was ideology). So, sending a message that independence is important is a good strategy.

qwoijzacxoi said...

Yes but how do we like Judge Gorsuch?? Will he be a great jurist?

Sunny said...

Look every body has a different way to see situation nor trump is wrong neither judiciary is..

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Shag from Brookline said...

I understand that Judge Gorsuch now claims through his handlers that his "disheartening" and "demoralizing" comment was not referring to Trump, after Team Trump seemed a little upset with reports following reportage of the Judge's comment. Mere coincidence?