Neil Gorsuch makes "originalism" accessible to the masses.
During his confirmation hearing yesterday, Judge Neil Gorsuch introduced the members of the Senate Judiciary Committee to Mutton Busting, a rodeo event which the jurist described as follows: “You take a poor little kid, you find a sheep, and you attach the one to the other and see how long they can hold on.” With his fourth day of hearings still ahead, Gorsuch may just as well have been describing the confirmation process itself.
Confirmation hearings provide the Senate, which has a constitutional duty to provide advice and consent to the President on Supreme Court nominees, with an opportunity to ask the nominee probing questions about his judicial record and intellectual commitments. Moreover, they provide Americans as a whole, whose lives are directly affected by Supreme Court decisions, with an opportunity to learn about the nominee generally.
In Judge Gorsuch’s case, Senate Democrats have largely squandered these opportunities, preferring instead to conjure the ghost of Justice Scalia, to wave the bloody shirt of Merrick Garland, and to frame the whole of constitutional law as a struggle between the “big guy” and the “little guy.” Unedifying as much of this political rodeo has been, there have been a few moments of depth and authenticity that should be encouraging even to those skeptical of Judge Gorsuch’s candidacy.
Originalism has repeatedly taken center stage during the hearings, sometimes as an empty platitude and sometimes as a sneering byword for reactionism. To his credit, Judge Gorsuch has seized upon these moments to explain to the nation–in layman’s terms–exactly what the judicial method entails and why it is important to democratic governance. Originalism, he explained, is not a partisan ideology, but a method of interpreting the law that upholds two fundamental principles of justice: it constrains the personal discretion of judges and it affirms the due process of law.
As an originalist judge, Gorsuch explained yesterday, “you go back and you look at the evidence of what [the Constitution] was understood at the time to protect… No one is looking to take us back to the horse and buggy or quill pens or turn the clock back on anything. The point is to apply the law in a way that allows us to be able to say, as judges, [that the law is] not what we wish. It’s what the law was understood to mean. It has a fixed meaning.”
To Gorsuch, when a judge is called upon to interpret the Constitution, he must determine what the text would have meant to a reasonable reader at the time it was framed—what originalists term the “original public meaning” of the Constitution.
Throughout the hearings, Gorsuch noted that this method of constitutional interpretation serves a fundamental due process value, lending stability and determinacy to the letter of the law. Originalists believe that the law has a fixed meaning that does not change over time or at the whim of an individual judge. This means that people can determine what the law requires of them simply by looking at the text of a statute. This is important because litigants are judged for their past conduct. As a result, they should be governed by the legal standards that applied at the time of that conduct–not by what a judge subsequently thinks the law ought to have required their conduct to be.
After much talk of whether warrantless thermal imaging is an unlawful search under the Fourth Amendment even though the technology did not exist in 1789 (yes) and whether a fish is a corporate record under Sarbanes-Oxley (no), on Day Three the hearings finally addressed a serious critique (and misapprehension) of originalism head-on. Senator Dianne Feinstein asked Gorsuch whether originalism eviscerates the protection of women and gays under the Fourteenth Amendment because the framers of the Amendment did not intend to protect those groups. Gorsuch’s response was revelatory:
First of all, a good judge starts with precedent and doesn’t reinvent the wheel, so to the extent there are decisions on those topics, and there are, a good judge respects precedent. That’s the first point. [The] second point I would make is it would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it–what a good judge always strives to do and what we all do–is to understand what the words on the page mean, not [to] import words that come from us, but [to] apply what you, the people’s representatives, the lawmakers, have done. And so when it comes to equal protection of the laws, for example, it matters not a whit that some of the drafters of the Fourteenth Amendment were racists–because they were–or sexists–because they were. The law they drafted promises equal protection of the law to all persons… I think that guarantee… is the most radical guarantee in all of the Constitution and maybe in all of human history. It’s a fantastic thing and that’s why it’s chiseled in Vermont marble over the entrance to the Supreme Court of the United States.
An originalist is not a medium, conjuring the secret, unexpressed intentions of the Constitution’s framers in a judicial séance. An originalist seeks to give effect to the original meaning of the text of the law, an approach most poignantly adopted by Justice Harlan in his blistering dissent in Plessy v. Ferguson, in which he wrote: “in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here… In respect of civil rights, all citizens are equal before the law.”
Gorsuch’s originalism should be heartening to every citizen because it prioritizes the will of the people, as expressed in the Constitution and in the laws of the land, over the will of the individual judge. Gorsuch’s workmanlike approach to judging is a natural consequence of this approach. To him, the federal judge is not a philosopher king who rules from the bench, remaking the laws in accordance with his own vision of the good. The role of the judge, Gorsuch has said pointedly and repeatedly during the hearings, “is to decide cases.”
Barring any ghastly surprises, Neil Gorsuch is likely to sail through the Senate. All he has to do during this week’s political rodeo is heed the Mutton Busting advice he gave his young daughters: HOLD ON.
Originalism Goes to the Rodeo
Must-Reads from Magazine
Waiting for a mature Trump.
It took fewer than 12 hours for Donald Trump to effectively retract his condemnation of the white nationalists behind the weekend bloodshed in Charlottesville, Virginia.
Amid intense criticism over his initial equivocation and refusal to name the Hitlerite goons who had instigated the violence, the president corrected course Monday afternoon. At a White House news conference, he railed against the “KKK, neo-Nazis, white supremacists, and other hate groups that are repugnant to everything we hold dear as Americans.” It was a scripted moment, and it came two days later than it should have. Still, you could almost hear the sighs of relief from Trump’s conservative-media defenders.
The president reversed himself – again – in classic Trumpian fashion. Late Monday evening, he tweeted: “Made additional remarks on Charlottesville and realize once again that the #Fake News Media will never be satisfied… truly bad people!” Which made the afternoon statement look like a begrudging concession to an ungrateful press corps rather than a genuine expression. As if to validate the impression, Trump retweeted an alt-right figure a few hours later.
Set aside the inane whataboutism of the tweet itself: “39 shootings in Chicago this weekend, 9 deaths. No national media outrage. Why is that?” Chicago’s crime epidemic deserves media coverage, to be sure, but so does a white-nationalist rally that ends with a motor-vehicle rampage, the death of one innocent and the maiming of at least 19 others.
More notable was the author of the tweet, Jack Posobiec. The activist and “reporter” is a creature of the alt-right fever swamps. He wouldn’t deserve a minute’s attention but for the fact that he has now been thrust into global prominence by the leader of the Free World.
Posobiec has described Richard Spencer, the organizer of the Charlottesville night of the long torches, as “indispensable.” He has peddled the conspiracy theory that Democrats ran a pedophilia ring out of a Washington pizza parlor. Most bizarre, by my lights, is his claim that globalist forces have drugged French President Emmanuel Macron since his earliest days and are now using him as a puppet.
“It may be a way that they found this guy [Macron] very, very young,” he told the conspiracy network Infowars in May, “and they were using that to essentially turn him into a puppet, turn him into a marionette, and now they’re plying him with drugs, keeping him drugged up and getting him to do whatever they want.”
The expression that comes to mind is double discourse. The president offers one set of messages when he is scripted and facing media pressure while telegraphing something else–sometimes the diametric opposite–when addressing his nutsy online base. As for his defenders in the conservative media, the ones who are convinced that a responsible, presidential Trump is just around the corner: He will always disappoint you. And with each disappointment comes a fresh dose of humiliation.
Controversies come and go so fast in the Trump administration that it’s all too easy to lose sight of individual issues. It is, therefore, worth remembering that before the events in Charlottesville grabbed public attention on Saturday, the president had been making news with his bellicose statements against North Korea and Venezuela.
Unlike many of the other victims of Trump’s invective, Kim Jong-un and Nicolas Maduro both deserve to be vilified. They are vicious dictators who show no regard for human life or the basic norms of civilized society. Kim’s villainy is of a higher order than Maduro’s—North Korea is the most repressive place on Earth—and he poses a much greater threat to the United States. Maduro isn’t developing nuclear weapons or threatening to attack U.S. territory. He does, however, deserve considerable calumny for destroying the last remnants of Venezuela’s democracy, whereas Kim Jong-un has simply continued the totalitarianism that he inherited from his father and grandfather.
It is entirely fit and proper for a president of the United States to denounce both Kim and Maduro. But that doesn’t mean that the way Trump went about is smart. He is, in fact, playing right into the dictators’ hands with his over-the-top threats.
He warned Kim Jong-un: “North Korea best not make any more threats to the United States. They will be met with fire and fury like the world has never seen.” Far from backing down after these comments were criticized, he doubled down, saying that the U.S. was “locked and loaded” for war. If taken seriously, Trump’s comments suggest that he is prepared to wage war not in response to North Korean actions but simply North Korean words.
There is, in fact, no sign that the U.S. is getting ready for conflict. If that were the case, the U.S. armed forces would be evacuating 200,000 American civilians from South Korea and rushing in the additional forces called for under the Pentagon’s war plan—Oplan 5027. That’s not happening, and senior officials—Secretary of State Rex Tillerson, Secretary of Defense Jim Mattis, National Security Advisor H.R. McMaster, and Chairman of the Joint Chiefs of Staff Gen. Joe Dunford—all say that conflict is not “imminent.”
Trump’s saber-rattling is unlikely to cause North Korea to stop its nuclear program. If anything, Kim will only redouble his efforts in the face of this American threat, while basking in further confirmation that the U.S. really is, as his propaganda claims, a warmonger intent on destroying North Korea. With Kim already on the verge of acquiring the capability to hit the U.S. with nuclear-tipped ICBMs, either the North Korean despot will call Trump’s bluff, leading to a loss of American credibility, or he will invite a catastrophic conflict. Neither option, needless to say, is a good one.
Trump’s threat of a “military option” against Venezuela is even more misguided. The U.S. is not going to invade Venezuela no matter how many human-rights abuses Maduro commits because we don’t have any national-security interest in doing so. Normally Trump himself is the first one to argue against humanitarian interventions, but, in this case, he allowed his rhetoric to run away with him.
Whatever his motivation, the Defense Department is even less prepared and willing to attack Venezuela than it is North Korea. The only concrete consequences of Trump’s wild threat is to force America’s Latin American allies to distance themselves from Washington and to hand Maduro a propaganda victory. Like Kim Jong-un, he, too, justifies his dictatorship as a defense against Yanqui colonialism and militarism, and Trump’s words seem to provide support for his propaganda. Moreover, assuming that Trump’s words don’t lead Maduro to change his repressive policies, the failure to back up this threat will further dent American credibility.
Trump found hyperbole to be a useful tool in the real estate business and his pursuit of the White House. But a president in control of the world’s mightiest military cannot afford so much loose talk without doing grave damage to American security and running the risk of needless conflict. Many hoped that the arrival of Gen. John Kelly as White House chief of staff would lead to a more moderate tone from the president. So far it hasn’t happened, but it’s never too late for Trump to adopt Theodore Roosevelt’s motto: “speak softly and carry a big stick.”
We ignored the warning signs.
The only morally acceptable response to the events in Charlottesville is full-throated condemnation. Full stop. This is not the time for moral equivalencies. The barbarism committed by a white supremacist in the name of white supremacy should not elicit sympathy or a deeper exploration of root causes. The root cause of this weekend’s murderous violence is racism. The end.
When addressing the events in Virginia on Saturday, the president declined to condemn and isolate the fringe racist extremists within his supporters’ ranks. Those elements heard his silence loud and clear, as did his more responsible partners—including Kenneth Frazier, the CEO of Merck who resigned from Trump’s advisory council on American manufacturing in protest. The president tried to correct for the oversight on Monday, but the damage was done. Presidents don’t get mulligans.
Yet it is because Trump passed on such an easy opportunity to make examples of subjects so obviously worthy of condemnation that all Americans should engage in some introspection. We posture self-righteously at our moral peril.
The condemnations of Trump and the alt-right proliferate on Facebook and Twitter, in part, because it’s easy. Charlottesville is not complicated. There is nothing morally ambiguous about the actors on that stage. Anachronistic fascists bearing the symbols of racial hatred and genocide are a familiar adversary. It is a dangerous adversary, to be sure, but also one that lost the struggle for hearts and minds generations ago. Charlottesville may provide observers with a rare moral binary, but it may also be the culmination of our refusal to tackle more abstruse conflicts over the last 18 months.
The vehicular attack on peaceful demonstrators this weekend was preceded hours earlier by a violent melee in the streets between white supremacists and counter-demonstrators. This wasn’t the first time in recent history that two demonstrators flying, respectively, the symbols of Nazism and Bolshevism have clashed in American streets. It’s just the first time we as a country stood up and took notice.
In June of last year, a group of neo-Nazis emboldened by Donald Trump’s casual winking in the direction of their movement took to Sacramento’s streets armed with permits allowing them to demonstrate. They were met by a group of counter-protesters and a street battle ensued. “By Any Means Necessary,” a counter-protest group organized by individuals who formed the nucleus of what would become “Antifa,” engaged in a blood-curdling combat with white supremacists. Ten people were injured, some critically, as both groups attacked one another with bats, knives, and other improvised implements. It was not, however, the neo-Nazis who inaugurated violence outside the California state capitol.
“If I had to say who started it and who didn’t, I’d say the permitted group didn’t start it,” said protective services division head and California Highway Patrol officer George Granada. “They came onto the grounds and were met almost instantly with a group of protesters there not to talk.” Authorities alleged that the “Antifa” organizers had prepared for weeks to meet the white supremacist rally with the express intention of shutting it down. One year later, former middle school teacher and “Antifa” organizer Yvette Felarca was arrested and charged with assault and inciting a riot in connection with her role in that event.
Considering the heat of a presidential election year and the relevance of this attack, coverage of this event was muted. Even at the time, this nightmare obviously portended more violence, but few Americans seemed to want to explore its relevance. Perhaps the spectacle was representative of a breakdown of the American social compact too terrible to contemplate. Perhaps it was too evocative of Weimar to contemplate. Maybe the moral complexities of the situation and the ambiguity of the heroes and villains involved rendered the story impossible to relate in a simple soundbite. Whatever the case, we didn’t reckon with what it meant.
There have been other, briefer and less violent confrontations between alt-right agitators and “Antifa,” to say nothing of the confrontations between both organizations and law enforcement, but none of them seared themselves into the national consciousness like the events in Virginia. All the while, a culture of romanticized political violence was taking root in the psyches of America’s political activists.
For a year, the left has muddled through an intramural debate over whether it was noble to physically assault white supremacists (like the kind that was meted out against Richard Spencer earlier this year). For its part, the alt-right has evinced violence. “A man wielding a sword hunted and killed a black man in New York City,” National Review’s David French noted. “A member of an ‘alt-Reich Nation’ Facebook group killed another black man in Maryland. A man opened fire on two immigrants at a bar in Kansas, killing one. A white supremacist in Portland murdered two men on a train who intervened when he harassed a Muslim and her black friend.” In 2016, the violence committed by Trump supporters at his explicit behest was well covered, but the organized campaign of counter-violence—a campaign that long outlasted the president’s incitement—was not.
Donald Trump is a coward. He has repeatedly refused to cast out the most undeserving elements of his coalition, but his cowardice is not unique. America has slouched silently toward this moment of crisis, ignoring all the glaring warning signs along the way. Amid our cowardice, we are sleepwalking back into a terrible past. Absent steely conviction on all our parts, the worst is yet to come.
The nucleolus of Trump.
You can choose to have whatever opinion you have on the president’s statement today condemning white supremacists, but it’s hard to believe he would have read it out if he’d had his druthers. No, the real Donald Trump was the one we saw on Saturday when he decided to condemn violence “on many sides” in response to the deliberately provocative and intentionally violent neo-Nazi march in Charlottesville, Virginia; when he decided to refer to the events as “sad” in tweets; when he wished “best regards” to those injured by the car that was deliberately smashed into them, killing 1 and injuring 20. When he acted in that way, he was operating according to his instinct. And his instinct said: Do not attack the white supremacists.
Why? The answer, I think, has everything to do with how he became president. Let me lay it out for you.
One of the mysteries of Trump’s rise in 2015 was just how meteoric it was. A week after he declared for president he came in second place in a Suffolk University poll in New Hampshire with 11 percent; 29 days after he came down the escalator, he was in the lead in the Suffolk poll nationally. He never surrendered that lead. How did Trump happen so fast?
The usual explanation is that he was just so famous and people didn’t realize how famous he was, how potent his brand would be. Sure. But that explanation is insufficient because Kim Kardashian is famous in a similar way and I doubt she would have led in a Democratic Party poll in 2015. The question is, whose early support for Trump itself played a key role in leading others to take him seriously and help propel him into the nomination?
The answer to this question is one Trump himself knows, I think. If there’s one thing politicians can feel in their marrow, even a non-pol pol like Trump, it’s who is in their base and what it is that binds the base to them. Only in this case, I’m not talking about a base as it’s commonly understood—the wellspring of a politician’s mass support. I’m talking about a nucleus—the very heart of a base, the root of the root of support. Trump found himself with 14 percent support in a month. Those early supporters had been primed to rally to him for a long time.
For years, under the radar and likely with the guidance of his political guru Roger Stone, Trump built a powerful and loyal following through what could be called—yes, I know this is going to sound condescending and elitist, but what can I say, I’m condescending and elitist—the proletarian media.
I’m talking about Alex Jones and Infowars, the conspiracy-theory radio-show/website on which Trump has appeared for years; the radio show has 2 million listeners a week, and Jones was said in 2011 to have a larger online presence than Rush Limbaugh or Glenn Beck. I’m talking about the WWE, which televises wrestling and which, in 2014, could claim a weekly audience of 15 million and on whose programs Trump intermittently served as a kind of Special Guest Villain in the manner of a villain on the 1960s Batman show. I’m talking about American Media, the company that owns the National Enquirer, the Star, the Sun, and the Weekly World News run by Trump’s close friend David Pecker; the combined weekly circulation of its publications is well in excess of 2 million. Trump helped make the birther issue a major one for a month in 2011 by talking about it on “Meet the Press” and “Good Morning America,” on network television. But he was surfacing an issue that had been roiling in the proletarian media, stirred and shaken constantly by his political guru, Roger Stone.
We’ve heard ad nauseam about Trump’s symbiotic relation to the New York City tabloids in the late 1980s and early 1990s, but in point of fact, that relationship declined sharply as his personal life began to calm down, as his proven ability to work the system began to shrink in importance, as Rudy Giuliani’s New York boomed, and new tabloid stars emerged (including Rudy himself).
So his relationship with the Post and the Daily News was replaced in time by a different relationship with a different kind of tabloid media—which is actually far rougher, far harder edged, considerably poorer, and overwhelmingly male. (It’s a mistake to think that the New York Post‘s audience is lumpen. There was a time when the Post outsold the New York Times in Manhattan. ) Trump’s goal was no longer to be the most talked-about person in New York City. It was something else, something larger.
Talk about flying under the radar. These media institutions have no cultural purchase whatsoever except for the contempt they breed. Nobody in the elites ever paid attention to them except to goggle at their ludicrousness as a passing Porsche on the way to the beach might goggle at a townie home with cars up on blocks in the front yard; or to express horror at the potential libelousness of the charges hurled in them. Such coverage would, in essence, wonder at the crudity of some Americans, and then move on.
By paying them heed, Trump was not only feeding his inexhaustible maw for attention. He was reaching a group of disaffected Americans entirely on the margins of American life, politically and culturally and organizationally. The dedicated prole-media audience, which might make up 5 or 6 percent of the electorate, is not enough to make a base. But it’s enough to make a nucleus. And what they knew is that he didn’t dismiss them. They knew he was listening to them. They knew he wanted to talk to them, wanted to hear from them.
They saw how he was jazzed by their conspiracy theories. He loathed Barack Obama as much as they did. He too thought Obama had been born in another country, that something untoward had happened to bury the fact, and that there had been a master plan to get this kid in Hawaii to the White House put in the works decades earlier. He liked them. So they liked him. A lot. And when he began his run for office by saying America was a dump and had left its best people behind by making bad deals with foreigners, they knew he was talking about what had been done to them, and they came to love him.
It was not this nucleus that showed up in Charlottesville. These were, instead, subatomic elements inside what we might call the nucleolus of Trump’s support, the tiny machine inside the atomic machine that forms the core of the Trump base. And that nucleolus is governed by rage, hatred, a sense of being wronged, and the loathing of others due to race and national origin. They are numerically insignificant to a man who secured 63 million votes in November 2016. But he—he, not I—seems to feel they are necessary to the constitution of his core. And he basically let them off with a mild warning.