Balkinization  

Thursday, May 19, 2016

The Going Rate is Thirty Pieces of Silver

Gerard N. Magliocca

Last night, Donald Trump appeared on Press Secretary Hannity's program to discuss (among other things) his proposed Supreme Court list.  There are many fine judges on the list, but any conservative who believes that Trump will pick any of them is a sucker no different from the folks who think that President Trump will build a wall along our southern border paid for by Mexico.

Suppose, though, that I am wrong about what President Trump would do about the Court. So what? What astonishes me as a member of the Federalist Society and as a person who considers himself a conservative (albeit a Burkean one) is how easily so many conservatives are selling out.  Who cares how the Executive Branch might act for the next four years, the argument seems to go. At least the Court would be doing the "right" thing. Not only is that attitude plainly wrong, but it assumes that a President Trump will give the Court the kind of deference that presidents usually give to its decisions.  I submit that everything about Trump's personality argues against that view, and that the first time his Administration lost a big case the Justices (including conservatives) would be trashed as losers and the Court would suffer as an institution.

There is some admirable resistance to this capitulation, especially among some conservative radio talk-show hosts and most of the bloggers at the Volokh Conspiracy. Truth must continue to speak to power.

Comments:

This is known as "responding to evidence".

Every time he issues a policy paper, or announces a short list of possible judicial nominees, this is evidence as to how he will govern. Absolutely reliable evidence? No, of course not. But it's evidence.

What are you asking here? That these people remain fixed opinions in the face of accumulating evidence?
 

Brett, I'm curious, were you satisfied with Romney's policy papers when he was the nominee? He ticked off all the conservative boxes in them.
 

I specifically said that position papers and lists of potential nominees aren't reliable evidence. But they ARE evidence, and you shouldn't attack people for changing their minds in response to evidence.

I mean, come on. Thirty pieces of silver? Trump isn't Hitler now, he's Judas?
 

This comment has been removed by the author.
 

Off topic given the author of the forthcoming "The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights" stating his views here.

I'm reading "Neither Snow Nor Rain," a biography of the U.S. Post Office. One chapter discusses targeting of the mailing of certain works, including free love materials in the late 19th Century, which was deemed legally acceptable with some critical reactions.

One in 1880 noted in response to an arrest: “Two plainer violations of the Bill of Rights—two meaner outrages upon liberty, decency, and morality—have never been perpetrated among our people!"

http://lithub.com/the-life-and-times-of-a-true-american-moral-hysteric/

The usage of the term "Bill of Rights" over the years is an interesting subject and I wish the professor good luck -- I enjoyed his other three books.
 

Brett

I think the pieces of silver reference is made about the conservatives who opposed Trump for what they saw as his violations of conservative principles but are now 'selling their principles' in embracing him, it's they that are the 'Judas'' in the analogy.
 

I think he's analogizing promises of policy they approve of, to a bribe. "Pieces of silver".

But, if the policy promises are actually delivered on, they actually SHOULD approve of Trump, right? The only thing they care about Trump is his policies.

They're not being bribed to do the wrong thing, they're doing the right thing.

Now, you can complain that there's reason to believe that they won't GET the policy. But in that case there's no silver.

I don't think the analogy works. The guilt if they get what they're promised just isn't there.
 

What policy promise has he made? He very carefully refrained from promising that he would nominate any of those particular judges. He said "..he would consider them" and they are "...representative of the kind of constitutional principles I value." I guess that suffices for many conservatives, considering the alternative.
 

GM thinks conservatives are making a bad deal.

The "silver" here are things like the court nominees. As Mr. Gould, GM, Orin Kerr etc. note, the offer should be taken with a big grain of salt. Particularly for conservatives given his "personal" characteristics, his "pragmatic" (not conservative as such) tendencies etc. Meanwhile, GM thinks they are risking too much about how Trump will otherwise "act."

Biblical references of this nature probably give him too much credit though it does suggest the almost sacred sense of principle conservatives (he voted Republican) like GM and others feel are at stake.
 

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"What policy promise has he made?"

Yeah, the media isn't very big on talking about his policy papers. That doesn't imply they don't exist.

Essentially his campaign as two sides to it: The serious side that is quietly energizing conservatives, and the public side where he manipulates the media into covering him to the point where all the oxygen gets sucked out of his opponents' campaigns.

"The "silver" here are things like the court nominees."

Yeah, I get that, but the analogy doesn't work. It requires you to assume that electing Trump is similar to crucifying Jesus, which, to put it mildly, doesn't compute. Then you have to assert that getting good policy is like a bribe.

But things like court nominees and 2nd amendment policy aren't bribes, they're what we elect politicians for. It's not taking a bribe to respond positively to them, it's just sensible.

I certainly understand the complaint that it's questionable whether he'll deliver on these promises. I only wish Hillary's promise to nominate justices who'd gut the Bill of Rights were as dubious.

But that's actually a standard risk with politicians. It's not like Republicans elected Bush in order to vastly expand entitlements.

No, I just don't think the analogy works. You need to think supporting Trump is inherently bad, apart from policy, for it to make any sense.
 

Gerard: Suppose, though, that I am wrong about what President Trump would do about the Court. So what?

For a time, it would theoretically keep the Supreme Court from becoming a rubber stamp for government overreach of its constitutional limits, depending of course on whether Roberts and/or Kennedy cave. That is no small thing.

If I could be assured that Trump would choose from this list, maybe I could swallow my bile and vote for the man. Unfortunately, like Clinton, Trump is a serial liar.

Who cares how the Executive Branch might act for the next four years, the argument seems to go. At least the Court would be doing the "right" thing. Not only is that attitude plainly wrong, but it assumes that a President Trump will give the Court the kind of deference that presidents usually give to its decisions.

No matter whether Clinton or Trump gets into office, the executive will be headed by a corrupt, lying progressive with inclinations toward dictatorship.

If Trump gets into office and actually appoints anyone on that list, the Supreme Court MIGHT check his overreaches.

If Clinton gets into office, she will appoint a rubber stamp and nothing will stand in her way. (The GOP Congress has shown no willingness to apply its constitutional checks and balances on the many Obama overreaches.)

In sum, the nation is pretty well screwed.
 

It's a fairly common comparison so someone need not be "Jesus" to use it though given everything involved, wary about using it.

It might not "compute" for you, but some conservatives are very concerned about how Trump being chosen President would affect our constitutional republic. He is not them, I realize you think differently basically, he not some average person here who amounts to a somewhat dubious bargain. Disagreement here doesn't mean one can't understand where these people are coming from. GM thinks Trump is a gigantic threat and things like judicial picks is token price -- thirty pieces of silver -- for that. And, and this is only a "this makes a worse," he thinks it is a fool's bet.

So, they are not merely making sacrifices to get "good policy," but you are threatening too much given the guy involved. It is NOT a "standard risk."
 

Gerard: There is some admirable resistance to this capitulation, especially among some conservative radio talk-show hosts and most of the bloggers at the Volokh Conspiracy. Truth must continue to speak to power.

When will truth start speaking to power among Democrats?
 

"No matter whether Clinton or Trump gets into office, the executive will be headed by a corrupt, lying progressive with inclinations toward dictatorship."

GM, who is a conservative, doesn't think they are of the same level in this regard. Ditto various other conservatives. And, GM at the very least thinks you shouldn't vote for one of them, especially accept him as a valid choice. We get ymmv.

One reason why the media doesn't talk much about "policy papers" is that he isn't out there making policy arguments that much as compared to Hillary Clinton or for that matter in the past various Republican candidates. In fact, he repeatedly comes off as Mr. W. notes a "buffoon" talking about policy, including when he shifts on basic points during the campaign, even on the same day.

As with Trump doing a range of things that supporters think are DRAWS that concerns conservatives (not just "Democrats") a lot but are continuously ignored, even by those who over and over again voices their concern about just that, seems wrong to talk about "the media" as such here.
 

BD: No matter whether Clinton or Trump gets into office, the executive will be headed by a corrupt, lying progressive with inclinations toward dictatorship.

Joe: GM, who is a conservative, doesn't think they are of the same level in this regard.


I had not noticed that Gerard is a conservative or a Republican.

In any case, Clinton has a demonstrably longer resume as a liar and has teamed up with her husband to make a nine figure fortune selling influence while she occupied various offices.

https://www.youtube.com/watch?v=-dY77j6uBHI

http://fortune.com/2016/02/15/hillary-clinton-net-worth-finances/

Clinton is the worst of the two.

The dilemma facing principled libertarians and conservatives is whether Clinton is bad enough to cause them to cast a ballot for Trump as the lesser of two obvious evils.
 

SPAM I AM! continues his oxymoronism with this reference: " ... principled libertarians and conservatives ...."
 

Bart de Palma: "When will truth start speaking to power among Democrats?" That's a pretty good description of how Bernie Sanders and his supporters see themselves, and that's a big movement.
 

"Yeah, the media isn't very big on talking about his policy papers. That doesn't imply they don't exist."

I was specifically referring to policy promises made by this list of potential nominees, which is ostensibly the topic of this thread.
 

BD: "When will truth start speaking to power among Democrats?"

James Wimberley said... That's a pretty good description of how Bernie Sanders and his supporters see themselves, and that's a big movement.


Somewhat.

Sanders has disappointed me in not going much further in calling out Clinton's corruption and barely saying anything at all about her lies.

The dowager queen in waiting is a target rich environment which I expect Trump to fully target.
 

"Sanders has disappointed me in not going much further in calling out Clinton's corruption and barely saying anything at all about her lies."

I would say Bernie's strategy has been to position himself as the only viable candidate should Hillary self-destruct, while not going at her so viciously that the Democratic establishment would decide he needs to be destroyed. It's a narrow path he's threading here.
 

"Sanders has disappointed me in not going much further"

Unlike yourself he might feel bound to stick with what he can actually prove.
 

There has been various interesting discussions on the role of Judas including explorations of a "Gospel of Judas," a Gnostic gospel that uses Judas as a means to profess true knowledge. Judas, not Peter, here saw the truth, the other apostles risible for their ignorance. The gospel ends:

"And he received some money and handed him over to them."

But, it seems that it was merely his body, Jesus' true essence surviving separately. It is opaque but some scholars argue (including working off the canonical gospels) that Judas is not a traitor here but helped Jesus obtain his true purpose. Others take Judas as more of a misguided figure. The same applies to the Jewish leaders, whose judgment is debatable.

Perhaps, the metaphor is fitting, if not quite in the way intended.
 

[one scholar in the field? Bart D Ehrman]
 

Sanders has disappointed me in not going much further in calling out Clinton's corruption and barely saying anything at all about her lies.

The dowager queen in waiting is a target rich environment which I expect Trump to fully target.
# posted by Blogger Bart DePalma : 11:47 AM


Bernie needs to maintain his credibility. That isn't an issue for you.

 

The Libertarian Party may present a dynamic duo of Johnson/Weld. The addition of Weld may attract #NEVERTRUMP voters. Weld and Trump are about the same age. They have in common experience in running for-profit schools and failing to show profits. Also, Weld, a redhead, when Gov. of MA, with a group of reporters on the Boston side of the Charles River, demonstrated the improving water quality of the Charles by diving in, fully clothed, perhaps for a nooner at his Cambridge home on the other side of the river, got halfway across and turned back because he didn't think he could made it. The water quality turned his hair orange. A goal of the Libertarian Party is to get into TV debates for the general election. Query: Might that benefit The Donald? Johnson might, however, effectively trump small hands Trump.
 

http://www.latimes.com/opinion/op-ed/la-oe-welch-libertarians-never-trump-20160519-snap-story.html

https://www.washingtonpost.com/news/opinions/wp/2016/05/20/trumps-cold-dead-tiny-hands/

So, the true race will be Johnson/Weld v. Jill Stein/Kreml (?) ... Kreml will attract that large Taoist vote.
 

Kreml was a popular hair tonic when I was a kid. I understand it was powered with alcohol. Put some on your scalp and your teeth would tingle.
 

I specifically said that position papers and lists of potential nominees aren't reliable evidence. But they ARE evidence, and you shouldn't attack people for changing their minds in response to evidence.

I've been out of town for 2 weeks, so I'm late to this discussion, but I wanted to respond to this.

One problem with Trump is that his position statements are not even evidence. There are 3 reasons for that: (1) He contradicts himself regularly, often within minutes; (2) he lies constantly; and (3) he's ignorant of actual policy issues.

So we can't rely even a little bit on Trump's "promises". What, then, can we rely on? Well, we know that he's a racist -- he has a long history of that; many of his supporters eagerly praise him for that; and his approval ratings among relevant ethnic groups show that they too have picked up on his tone. We also know that he's a misogynist, again with a long history. Finally, we know that he's a narcissist. So while we can't know what policies he'll adopt, we can be sure that he's a dangerously unacceptable candidate.
 

I figure that position statements are of a little value, at least so his people would know what to do if doesn't care about something. But, as GM notes in the lede, there is always a risk he will insert himself partially for reasons Mark Field notes.

The three reasons are well put. I keep on returning as well to the basic point, again along with some of the other stuff this is labeled a draw or at least (unlike the racist stuff) what supporters are well willing to admit, he is a pragmatist. He'll do what he thinks will make a good deal, not being tied to position papers.

Anyway, politicians are flexible based on the situation, at times lie or b.s. etc. but the problem is Trump takes it to "11." OTOH, some will say "everyone does it" or "Clinton is a demon." Perspective is a useful thing to have.
 

Trump supporters may be in awe of "megalomelania."
 

"Well, we know that he's a racist -- he has a long history of that; many of his supporters eagerly praise him for that;"

Look, his supporters praising him for stands you idiosyncraticly label "racist" doesn't equal them praising home for being racist. "Racist!" has become the Left's all purpose, content free epithet. We're all supposed to cower the moment the charge is leveled, or better, preemptively avoid any position that might prompt you to utter the word.

Trump refuses to do that, and that does gain him a lot of support, from people who understand that the left isn't entitled to decide for everybody else the acceptable range of discourse by exercising some kind of automatic veteran over any idea they don't like.
 

Darned uppity Apple auto-correct. It's either incredibly good or stubbornly moronic, but never predictable.
 

"Racist" probably is the wrong word in this context. Trump's a racist, but the attraction of his policies to folks like those at Stormfront is that he's a white supremacist.
 

Sen. Lindsey Graham (R-SC) also "idiosyncratically" calls him "racist" as do others who few would call "the Left." They do so since they have facts to back it up other than "any idea they don't like." It is true that not "cowering" as is other stuff conservatives et. al. deem problematic make his supporters happy there.

It is almost like the one using empty labels might not be "the left" here.
 

Is Brett defending himself or the rest of the Trump supporters? Brett has provided ample evidence of his personal views at this Blog over the years to be judged (in non-legal terms, of course).
 

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Is Trump a misogynist? I ask this as a linguistic question not a political one. The dictionary definition is "hatred, dislike, or mistrust of women". Trump likes women, in subservient positions: wife, mistress, assistant, showgirl. He clearly thinks women are inferior and made to be dominated by men, especially alpha men like himself. A parallel question arises with racism: some white people fear and dislike people with dark skin, others merely think they are congenitally inferior. Some anti-Semites fear and dislike Jews while thinking they are superior in some dimensions like cunning. There are are a lot of different snakes in this bucket.
 

This comment has been removed by the author.
 

Today, the Washington Post published an interesting article about the rapidly expanding militia movement.

http://www.washingtonpost.com/sf/national/2016/05/21/armed-with-guns-and-constitutions-the-patriot-movement-sees-america-under-threat/

The reporters concentrated on a single militia leader by the name of B.J. Soper, who formed his group Central Oregon Constitutional Guard in order to defend the Constitution. The Post recorded Soper providing a very reasonable and concise textual interpretation of Article I, Section 8, Clause 17 of the Constitution limiting Congress' power to own property to argue that the federal ownership of half of the territory west of the Mississippi is illegal. Then the Post recorded a law professor ridiculing applying this clause as written and instead arguing without any textual basis that Congress' power to own any land it pleases is somehow granted by the Commerce Clause or Spending Clause through the Necessary and Proper Clause. I doubt that this was the Post's purpose, but this point/counterpoint perfectly makes Soper's point that the government is lawless and by extension legitimizes Soper's justification for forming a militia.

The contention that Justice Robert's lawless decisions rubber stamping Obamacare led to the nomination of Donald Trump only scratched the surface of this rebellion. If you give credence to the Southern Poverty Law Center's data, the number of militia groups have multiplied by nearly seven fold since 2008. Government lawlessness since 2008 is hardly limited to the two Obamacare cases and there definitely appears to be a cause and effect between that lawlessness and the growth of a militia movement which is potentially far more dangerous than Trump.




 

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# posted by Blogger Bart DePalma : 9:52 PM


Dumbfuck, you supported the government torturing people.
 

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"If you give credence to the Southern Poverty Law Center's data"

But who with any sense would?
 

Is brett aware that he is in its sights?
 

Of course I'm in the SPLC's sights. I'm not a Democrat.
 

"Of course I'm in the SPLC's sights. I'm not a Democrat."

It's early. Brett is on autopilot again.
 

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