The authoritarian’s compromise
by Tom Sullivan
A tweet the other day quipped that Republicans are the party of law and order so long as they write the laws and give the orders.
It wasn’t always so. Democrats of the Old South were committed to law and order: states’ rights (to maintain slavery), property rights (to treat humans as), and to compromise. We learned yesterday from White House chief of staff John F. Kelly it was lack of compromise that led to the Civil War. So long as the North compromised by acknowledging that black slaves were “rightfully held and regarded as an inferior and dependent race,” the union would remain intact.
Facing westward expansion and the addition of new, free states that, over time, would erode slaveholders’ power in Congress, the South saw its only path forward was for the North to compromise at the muzzle end of a cannon.
It is a peculiar notion that laws — and democracy itself — are only legitimate so long as one can predetermine an outcome. To persons of a certain cast of mind, when public attitudes and demographics shift, weakening their position, compromise in the form of an opponents’ surrender or gaming the legal process is required.
Jonathan Chait observes the drift among Republicans to assert the president’s right to quash any legal investigation he chooses. The Wall Street Journal op-ed page the other day asserted:
A president cannot obstruct justice through the exercise of his constitutional and discretionary authority over executive-branch officials like Mr. Comey. If a president can be held to account for “obstruction of justice” by ending an investigation or firing a prosecutor or law-enforcement official — an authority the constitution vests in him as chief executive — then one of the presidency’s most formidable powers is transferred from an elected, accountable official to unelected, unaccountable bureaucrats and judges.
If only Richard Nixon had asserted this claim regarding a certain hotel break-in. Chait writes that the efforts of modern-day GOP reformers such as Steve Bannon are “easily understood as an effort to cleanse its ranks of any members who might be inclined to uphold the rule of law at Trump’s expense.” The only path Republican lawmakers have to remaining in office, in Bannon’s view, is to compromise whatever integrity they have left.
Dahlia Lithwick and Stephen I. Vladeck observe in the Washington Post a dangerous effort to discredit any judges that rule against the sitting president. Those who do have joined “the resistance.”
Lithwick and Vladeck write:
But discrediting federal jurists as having joined “the resistance” isn’t merely an argument lacking in analysis or evidentiary support; it’s also profoundly dangerous, for it suggests that any and all rulings against President Trump are not just doctrinally incorrect but also illegitimate. Much like criticism of all unflattering media reports as “fake news,” and attacks on the loyalty or patriotism of legislators who don’t vote in support of the president’s agenda, denouncing and dismissing all judges with the temerity to rule against Mr. Trump represents a direct attack on the independence and integrity of the entire judicial branch.
Attacks on individual judges based on a single ruling or upon the geographic location of their court or the president who appointed them are broadsides against the entire judicial branch. These attacks undermine public confidence in the impartiality of judges and will make it harder in the future for the courts to stand up to the political branches, even in cases in which their current critics think they should.
Undermining the courts is not just a Beltway pastime. North Carolina Republicans have found federal courts decidedly uncooperative, having ruled against a string of their legislative efforts to game the state’s elections process. But since the NCGOP has no authority over federal courts, members have targeted state judges for some creative compromise. They propose exposing them to more political pressure by making them run for office every two years.
The unusual move by legislators prompted unusual comment from sitting Wake County Superior Court Judge Donald Stephens, who calls the maneuver “an affront to the rule of law, an attempt to compromise the integrity of the separation of powers.”
It’s what you get when a party’s principles are whatever works and its commitment to the Constitution is a mile wide and an inch deep.
But undermining the rule of law is what people of a certain cast of mind — call them Confederates, if you will — do when they cannot prevail through legitimate means. If they cannot win court cases, they delegitimize the courts, remove their jurisdiction, or rewrite the laws by which judges are chosen and courts operate. If they cannot win elections, they prevent the “wrong” people from voting and erode the franchise to ensure their power doesn’t erode further. Whatever ethical compromises are required to maintain power.
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