The Republican Surrender Caucus Returns

Over the weekend, Americans were again reminded that the default position of Republican “leaders” in Congress is to preach about the evils of unlimited government but to work at every turn to undermine anyone who actually stands up to do something about it.

This reality became apparent when GOP senators issued swift denunciations of President Trump’s tweets critical of a federal judge who issued a temporary restraining order on the implementation of his executive order on travel. Trump’s order puts a brief hold on immigration from seven countries beset by terrorism and unwilling, or unable, to comply with our requirements for vetting. In response to District Judge James L. Robart’s ruling, which various legal commentators have dissected and found severely wanting, Trump tweeted:


In response to this attempt of the President to defend his actions, what kind of support has his party offered? Instead of slamming the baseless decision of a liberal judge (don’t get caught up in the “But he’s a Bush appointee!” narrative peddled by the press) who spouts Black Lives Matters narratives from the bench, members of the GOPe political class quickly rushed to the studios of Sunday morning talk shows to denounce Trump.

Senate Majority Leader Mitch McConnell (R-Ky.) told ABC’s Jake Tapper,

“It is best not to single out judges. We all get disappointed from time to time. I think it is best to avoid criticizing them individually.”

Senator Ben Sasse of Nebraska, a Never Trumper and a darling of Beltway conservatives, said,

“I’ll be honest, I don’t understand language like that. We don’t have so–called judges. We don’t have so-called senators. We don’t have so-called presidents.”

If this isn’t the dictionary definition of perfidy, I don’t know what is. Evidently criticizing judges and their opinions is now squarely outside of the mainstream of American politics. It’s something only aspiring tyrants do, apparently.

But if Trump is a Mussolini in waiting, then so must be a certain longstanding member of the Senate who, on a number of occasions, has criticized decisions of the Supreme Court and judicial nominees coming before that body for confirmation.

When President Obama nominated Elena Kagan to the fill an open seat on the Supreme Court, the senator in question said:

“When we look at her résumé, we find a woman who has worked fervently to advance the goals of the Democratic Party and liberal causes, usually at the expense of those with whom she disagrees politically or ideologically.”

Concerning President Obama’s pick of Merrick Garland for the seat Justice Antonin Scalia held until his death last year, the same senator had this to say:

“I don’t think you could have a worse, from a conservative point of view, I don’t think you could have a worse nominee than Merrick Garland. There’s nothing about him that is moderate.”

This incognito senator is none other than Mitch McConnell. Why was criticizing judges kosher then but now is a harbinger of autocracy? (If you ask me, I think someone has been reading a bit too much David Frum lately.)

Sasse, who has not been in the Senate long, perhaps can be forgiven for not having better political sense. Apparently, he hasn’t figured out the favorite leftist tactic of holding opponents up against their own standards while embracing political expediency when it suits their own needs. But Sasse is going to have learn sooner or later that lectures delivered at AEI filled with conservative buzzwords are not the same thing as statesmanship. Exhibiting cluelessness about political realities in an attempted high-toned defense of liberty is no virtue.

As McConnell once knew but seems now to have forgotten and Sasse, who has a Ph.D. from Yale and is a past president of a college, should know, attacks on judicial decisions that are thought to warp and twist the Constitution and upon the judges who write them are the hallmark of American politics.

Thomas Jefferson famously warred against his arch-nemesis on the Supreme Court, Chief Justice John Marshall. He despised Marshall’s decisions from the bench—especially the celebrated case of Marbury v. Madison—and denounced Marshall for his “lax lounging manners … and a profound hypocrisy.” Jefferson advocated for the impeachment of District Judge John Pickering of New Hampshire and backed the impeachment of Supreme Court Justice Samuel Chase for getting too involved in partisan politics (Chase was eventually impeached but not removed from the bench). Jefferson, incensed at the slow speed at which the impeachment proceedings moved, eventually supported amending the Constitution so that the president could remove a judge through faster means.

Andrew Jackson famously pushed back against the Supreme Court in his message vetoing a bill that would have re-chartered the Second Bank of the United States. There, he hit back hard against the principle of judicial supremacy, the now almost universally accepted notion (certainly in our most elite law schools) that the Supreme Court is the final arbiter of the Constitution. Jackson instead countered, “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.”

“The opinion of the judges,” Jackson noted, “has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”

Jackson reasoned that if the Constitution was conflated with constitutional law—or what the Supreme Court says about the Constitution—then the country would cease to be a republic based on a self-governing citizenry.

In his speech on the infamous Dred Scott decision, Abraham Lincoln assailed Chief Justice Roger Taney’s turgid opinion, which he vigorously argued bowdlerized both the text of the Constitution and the principles of the Declaration of Independence. Taney’s two central claims were that blacks could not sue in court because they were not citizens of the United States and that Congress did not have the power to restrict slavery in the territories. Taney grounded these two findings upon the shocking idea—even in 1857—that blacks were “so far inferior that they had no rights which the white man was bound to respect.”

Lincoln, incensed at the decision, called it “erroneous” and argued that it was “based on assumed historical facts which were not really true.” He attacked Taney’s claim that the opinion of Americans regarding blacks had actually gotten better since the Founding, noting that notion was a “mistake,” “grossly incorrect,” and absolutely counter to all historical facts. He accused Taney’s majority opinion of being “a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism.”

Lincoln even went so far as to charge Taney with acting as a co-conspirator on behalf of the cause of expanding slavery nationwide:

In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.

Lincoln continued touting Taney’s part in helping the political elites expand slavery in his House Divided Speech. He likened Taney, along with Presidents Franklin Pierce and James Buchanan and Senator Stephen Douglas, to “workmen” who were working from a “common plan” in constructing a house. According to Lincoln, the timbers just happened to join together; the “tenons and mortices exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places.” Though these men didn’t necessarily conspire with each other directly, Lincoln maintained that Taney—the sitting Chief Justice of the United States—worked tirelessly to advance the slave power and thereby rejected the fundamental idea of the natural equality of all human beings on which our nation was built and from which the people derive their sovereignty.

I wonder what Sasse would have said about Lincoln’s severe language and arguments—language that is off the charts in its harshness when compared with Trump’s much milder tweet. Maybe Sasse would have written a long pamphlet detailing his myriad conflicted feelings on Lincoln’s temperament while sitting on the banks of the Platte River.

Oblivious to political realities, Republican leaders in the Senate have reverted back to majoring in the minors and cutting off their noses to spite their faces. In the face of an unprecedented onslaught of attacks on a president who is of the same party, they instead join in every seeming breach of decorum and thus miss the forest for the trees. As Harvard political theorist Harvey C. Mansfield said of Trump, he is no gentleman. Well, these men and women need to learn that hidebound Victorian “gentlemanly” virtue is not what is necessary during this political moment. Instead, the situation clearly calls for spiritedness on behalf of the people and securing their right to rule—whatever they may think about the policy implications such rule may bring.

If principle truly is their motivation in these rear guard intramural disputes, then it is high time they started acting like it and allow the policy chips to fall where they may. Trump has answered the call. But it looks like those in Congress are reverting back the only thing they know how to do: turn and run.

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