The Last Conservative Judge

By Nick Catoggio

Friday, May 30, 2025

 

There are many stories in literature about people making deals with the devil. Weirdly, in most of them the devil is a square dealer.

 

That is, he keeps up his end of the bargain. He offers the protagonist wealth or power in exchange for something ethereal, like their immortal soul, and when they agree he delivers. The Prince of Lies turns out not to be a swindler. Most of the drama happens after he makes good on his promise and comes to collect.

 

The moral of those stories isn’t that you’re a fool to trade with Beelzebub because you’ll be cheated. It’s that you’re a fool to sacrifice your noblest self for something as fleeting as worldly power.

 

Conservatives made a deal like that in 2016. Donald Trump offered to stock the federal judiciary with their favorite judges, beginning with the vacancy left by Antonin Scalia on the Supreme Court; in return they would set aside their moral, civic, and ideological objections to him and support him in virtually anything he wanted to do, even if it affronted their conservative beliefs. Or basic decency.

 

The bargain was struck—and he delivered. Three eminent conservative jurists were added to the Supreme Court. Hundreds more were confirmed to federal appellate and district courts. The great white whale of social conservatism, Roe v. Wade, was harpooned in 2022 after a 50-year chase. Many other landmark legal victories for the American right have accumulated since Trump took office in 2017.

 

Conservatives weren’t cheated. The devil made good.

 

Fast-forward to last night, when the president broke his unnerving silence about Wednesday’s ruling by the U.S. Court of International Trade declaring his “Liberation Day” tariffs unlawful. He was angry, of course, but it wasn’t chiefly the court that he was angry at. He was mad at the people who had advised him on judicial nominees during his first term, producing a bench of conservative appointees who haven’t been nearly as “loyal” as he had expected.

 

“I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges,” he explained to supporters on Truth Social. “I did so, openly and freely, but then realized that they were under the thumb of a real ‘sleazebag’ named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions.”

 

Leo spent many years as the Federalist Society’s sherpa on judicial nominees, advising Republican presidents on whom to appoint and helping to shepherd candidates through the confirmation process. With the exception of Mitch McConnell, no one has done more this century to build a federal bench of originalist judges. But Trump didn’t want originalists—he wanted flunkies—and so Leo’s influence, and the influence of the organization he serves, have gone up in smoke. “I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations,” the president whined in his Truth Social post. “This is something that cannot be forgotten!”

 

Conservatives got the judiciary they wanted in exchange for supporting a man who radiates contempt for the constitutional order. In doing so, they empowered a postliberal movement that despises judges who do their jobs conscientiously instead of dutifully midwifing a Trumpist autocracy. As the Republican Party proceeds further down the path to fascism that those conservatives enabled, eventually the federal judiciary will consist entirely of believers in the “living Constitution,” half authoritarian and half progressive. In the long run, as Reaganites age out and are replaced by younger Trumpists, conservative judges as we’ve known them will go mostly extinct.

 

That’s what conservatives got for their bargain. The devil has come to collect.

 

Sleazebags.

 

It felt meaningful that Trump chose to deride Leonard Leo as a “sleazebag” on the same day that he nominated “highly respected attorney, writer, and Constitutional Scholar” Paul Ingrassia to lead the Office of Special Counsel.

 

I could spend the rest of this newsletter on Ingrassia, but will direct you to Jason Hart’s dossier on him for a deep dive. Briefly, he’s around 30 years old, graduated from law school three years ago, and was sworn into the bar just last summer. He’s a passionate admirer of accused rapist Andrew Tate, has been spotted at a rally held by white nationalist Nick Fuentes, and declared a week after Hamas’ October 7 slaughter of Israelis in 2023 that “Israel/Palestine” was a “psy op.” Per Hart, he’s also accused Nikki Haley, Vivek Ramaswamy, and Ben Shapiro of not being Americans.

 

This is the guy whom Trump chose to head an office that’s supposed to protect federal whistleblowers from retaliation if they come forward to expose wrongdoing.

 

It touched my cynical heart to see people on social media who are mortified by Ingrassia’s selection demanding to know who’s vetting nominees for our dear president, as if he isn’t the platonic ideal of the sort of ruthless amoral toady that Trump adores. Ingrassia got the job for the same reason “Eagle Ed” Martin was elevated to pardon attorney at the Justice Department: He understands the assignment. If forced to choose between the president’s wishes and the ethical obligations of his office, there isn’t an iota of doubt what he’ll do.

 

Postliberalism is an ethic of government that demands impunity for one’s “friends” and persecution of one’s enemies. It can’t coexist with Enlightenment notions of law. And so, logically enough, the great project of Trump’s first four months back in office has been to start undoing those Enlightenment expectations by introducing postliberalism into federal law enforcement. Appointing figures like Ingrassia, Martin, and Kash Patel who’ll prioritize friends over enemies instead of neutrally apply the law is one way to do it. “No MAGA left behind,” as Eagle Ed candidly put it.

 

The president is also using his own powers to normalize treating friends and enemies differently. Every time he punishes an adversary by rescinding a legal privilege or rewards an ally by granting unjustified clemency, he reinforces public expectations that whether the law will be followed depends on whether someone has caused him trouble or not. The New York Times published a story on Friday that described his approach as nothing more or less than trying to “redefine crime,” which sounds hysterical but in fact describes the new reality. If you’re accused of a federal offense, Donald Trump’s opinion of you is now a crucial variable in whether you’ll serve time—or even be able to find a lawyer willing to represent you.

 

Authoritarians face a big problem in overcoming Enlightenment norms about law, though. In a word: judges.

 

Most elements of federal law enforcement answer to the president, and Trump has taken full advantage—purging DOJ prosecutors and FBI officials, firing the Pentagon’s top lawyers, letting DOGE run roughshod over the IRS and other federal bureaucracies. He has enormous discretion to make personnel changes that will imprint postliberal priorities on how American law is carried out …

 

… until the process reaches the courthouse door, where his power ends. He can’t replace the personnel there, as federal judges famously serve for life. And when he did have a chance to replace them in his first term, Leonard Leo and the Federalist Society pushed conservative nominees on him instead of the postliberal ones he thought he was getting.

 

I almost sympathize with him. To a man addled by sociopathy, who assesses merit entirely through the lens of whether someone is favorable to him or not, being told that so-and-so would make a “great judge” must have sounded indistinguishable from a pledge that so-and-so would dependably rule in his favor. That’s certainly the vibe one gets from his Truth Social post about Leonard Leo. The sense of betrayal, never mind resentment, is palpable.

 

The president could have created a judiciary that respects him more than it respects the Constitution and instead the Federalist Society duped him into creating one that did the opposite. It’s a momentous missed opportunity that’s left him with no good options. If he goes full authoritarian by ignoring court rulings, the public (and markets) won’t like it. But if he follows court rulings, the authoritarian project will founder.

 

Postliberalism can’t coexist with Enlightenment notions of law, and thanks to the Federalist Society, the Enlightenment retains an enormous advantage. What now?

 

They want flunkies.

 

The president is going to have to start filling judicial vacancies with the sort of servile flunkies he thought he was getting the first time around.

 

His advisers figured that out a while ago, actually. As far back as November 2023, Trump cronies like Russell Vought were complaining to the media that “the Federalist Society doesn’t know what time it is,” using a bit of autocratic lingo that’s in vogue among postliberal bootlickers. “Trump allies are building new recruiting pipelines separate from the Federalist Society” for his second term, the Times reported at the time, in hopes of finding attorneys “willing to use theories that more establishment lawyers would reject to advance his cause.”

 

The new administration would look beyond Leo-approved “squishes” who were “too worried about maintaining their standing in polite society and their employment prospects at big law firms to advance their movement’s most contentious tactics and goals,” the story continued. If it isn’t clear from all that what sort of lawyer Trump and his team are looking for, the Wall Street Journal got specific in a piece published last October: “This ascendant faction [in his orbit] wants more judges like U.S. District Judge Aileen Cannon, the controversial Trump-appointed Florida jurist who dismissed one of the criminal cases against Trump.”

 

They want flunkies. True to form, they intend to emulate the worst tendencies of the left by appointing judges who’ll approach the Constitution as a sort of “living” document whose meaning shifts as their political needs do. Remember the conservative rallying cry “no more Souters!” that sank Harriet Miers? The new version, essentially, is “no more Amy Coney Barretts”—never mind that Barrett, Brett Kavanaugh, and Neil Gorsuch did precisely what Souter notoriously declined to do by striking down Roe.

 

The postliberal right wants flunkies. Which brings us to Emil Bove.

 

Last week rumors spread that Trump was considering Bove for a vacancy on the 3rd Circuit Court of Appeals. A smart conservative lawyer I know scoffed that “a lot of people are ‘considered,’” seemingly skeptical that a character like him might end up on the federal bench. Bove helped defend Trump from criminal charges last year and was rewarded for it with a high position at the Justice Department. You may remember that he used that position to pressure prosecutors in Manhattan’s U.S. attorney’s office to drop criminal charges against New York Mayor Eric Adams, in part because Adams was useful politically to the White House.

 

Several lawyers in that office resigned in protest over the grossly unethical nature of the request. But Emil Bove, rumor had it, was in line for a promotion. And why not? By postliberal logic, the “sleazebags” in that story are the ones who refused to accord Adams the legal privileges due to an ally of the president. Emil Bove, Trump “henchman,” understood the assignment.

 

On Wednesday the rumors were confirmed. Bove is officially the president’s nominee for a seat on the 3rd Circuit. They want flunkies and they’re going to have them.

 

That probably also explains why Attorney General Pam Bondi notified the American Bar Association on Thursday that it’ll no longer be given special access to judicial nominees to assess their fitness for the bench. That’s not the first time that a Republican president has punished the ABA for liberal biases by rescinding its privileges in the confirmation process; George W. Bush did it as well. But in light of Bove’s nomination and the clamor among the worst people on the right for judges who “know what time it is,” it’s likely not so much the ABA’s “liberal” bias that Bondi is worried about as its bias against nominees who really are frighteningly ethically or intellectually unfit.

 

The right wants flunkies. Having a well-known legal gatekeeper raising public alarm about flunkies who are in the judicial pipeline is unhelpful to that project.

 

The long march.

 

Conservatives voted for this.

 

Many will claim that they didn’t, that they assumed they’d be getting the same caliber of jurist that they got during Trump’s first term, but in that case they’re as guilty of not paying attention to politics as the chumps who now complain that they didn’t vote for higher prices on foreign goods. The president’s interest in appointing flunky judges in a second term was as inevitable as his trade war was, as stories like the Times piece from 2023 demonstrate.

 

It’s the logical result of his descent into go-for-broke postliberalism that began with trying to overturn the 2020 election, a topic explored in, oh, the last 600 or so editions of this newsletter. When you voted for a guy who attempted a coup, who spent the whole campaign burbling about “retribution,” who’s casually called for suspending the Constitution, did you really expect him to do things by the book and keep appointing rule-of-law conservatives to the bench?

 

The good news for conservatives is that the postliberal program to create a judiciary full of fascists will take time, possibly decades. Trump will fill scores of vacancies before 2029, but he won’t come close to replacing every conservative with a gavel. His demagoguery of the Federalist Society might even backfire by spooking some Republican judges who were thinking of retiring but don’t want to be replaced by a clown. If you’re Samuel Alito, how might it influence your career plans to know that Emil Bove is waiting to take your seat?

 

The Federalist Society won’t wield much influence over future judicial appointees, but originalism will continue to be the default approach for most right-wing judges for the rest of Trump’s term, and for the next Republican administration, and maybe even for the one after that. The march through the institutions of the judiciary by right-wing Stalinists will in fact be long.

 

The president and his fans aren’t known for patience, though, so here we can make a few easy predictions. First, if the Supreme Court thwarts him by limiting his authority over matters that he cares about, like tariffs or immigration, Trump and his MAGA cheerleaders will call for court-packing. The fact that they derided the idea when Democrats took it up during Joe Biden’s presidency won’t matter to them any more than that they derided Kamala Harris for endorsing price controls before Trump did.

 

Another easy one: Trump will continue to appoint Federalist Society members to some judicial vacancies, mainly because there still aren’t enough prominent lawyers on the postliberal farm team to fill every open seat. The most influential appointments will be reserved for flunkies, however. We’ll see Paul Ingrassia land on the Supreme Court—or Aileen Cannon, more likely—before we see someone in the Paul Clement mold.

 

Another, easier than the first two: If conservatives on the court really do thwart Trump in a major ruling limiting his executive authority, the American right’s hatred of Neil Gorsuch, Brett Kavanaugh, and especially Amy Coney Barrett will exceed the hostility they feel for any Democrat. (Barrett’s extended family is already receiving veiled threats.) MAGA has learned to live with liberals in power, but they’ll never abide someone who accepted Trump’s invitation to join the court and then ungratefully insisted on holding him accountable to the law.

 

Last but not least: Most conservatives will be just fine with seeing their party’s judges become contemptible stooges for a contemptible strongman.

 

That’s the lesson of the last 10 years of right-wing politics, no? We’ve learned that the Republican Party consists of a small but powerful minority of actual fascists atop a much broader base of people who identify as “conservatives,” but assign no intellectual meaning to the term. To be a “conservative” means to favor owning the libs; whatever form that lib-owning takes, whatever moral demands it makes, matters not a bit.

 

Even conservatives who do assign ideological content to the term will find ways to rationalize supporting the Boves and Cannons. It’ll be the same old story: Yes, Trump is flawed, but better him than Hillary Clinton, Joe Biden, or Kamala Harris. Yes, Justice Bove is flawed, but better him than Justice Sotomayor. If we’re doomed to have a “living Constitution,” we should prefer to have fascists rather than communists bringing it to life.

 

Eventually, I expect, the Federalist Society will be known not as a platform for conservatives who favor originalism but as a platform for postliberals who believe the law should do whatever the president—a Republican president, at least—wants it to do. (That’s basically what happened to the Heritage Foundation, no?) The group has always attracted ambitious young lawyers in part because the networking it offers can advance their careers. If advancement in the GOP now requires showing loyalty to the president, not to the Constitution, why should we assume that the supply of right-wing legal talent won’t shift to meet the demand?

 

The devil is forever offering deals to American conservatives and they’re forever accepting, no matter how often he comes to collect. In the end, they’ll have traded away everything they ever claimed to care about.

Pretext Upon Pretext

By Jonah Goldberg

Friday, May 30, 2025

 

As some of you may recall, I love this scene from Whit Stillman’s Barcelona.

 

 

If you don’t want to watch the video, here’s the dialogue:

 

Fred: Maybe you can clarify something for me. You know, since I’ve been waiting for the fleet to show up, I’ve read a lot … and one of the things that keeps cropping up is this about “subtext.” Plays, novels, songs—they all have a subtext, which I take to mean a hidden message or import of some kind. So, subtext, we know. But what do you call the message or meaning that’s right there on the surface, completely open and obvious? They never talk about that. What do you call what’s above the subtext?

 

Ted: The text.

 

Fred: OK, that’s right, but they never talk about that.

 

Fred’s right of course: People talk about subtext a lot. Indeed, I think one of the reasons the humanities are such a mess is that academics got so drunk on subtext hunting that they convinced themselves that the text is for suckers.

 

“Anyone can just read the words!” seems to be a lot of people’s attitude. Caring about the text is bougie, middlebrow stuff. The really sharp people spend their time looking for hidden evidence of racism, sexism, colonizer-oppressor ideology, homoeroticism, or homophobia.

 

Back in the 1990s, some friends and I coined a phrase: the “Tequila Sunrise Effect” (I wrote about it 25 years ago).  Tequila Sunrise, starring Mel Gibson, Kurt Russell, and Michelle Pfeiffer, was a fairly forgettable movie. So forgettable, in fact, I’ve mostly forgotten what it was about. But that doesn’t matter.

 

John Leonard reviewed the movie for The Nation and wrote:

 

In the movie Tequila Sunrise, Mel Gibson and Kurt Russell are high school buddies who grew up on opposite sides of the law. They compete for Michelle Pfeiffer. If not to them, what’s clear to us is that Gibson and Russell really want to go to bed with each other. Since they can’t, they go to bed with Pfeiffer. She’s the go-between, the trampoline, a universal joint, a portable gopher-hole, a surrogate and a Chinese finger puzzle. Once you have seen it in the movie, you’ll see it everywhere.

 

We came up with the Tequila Sunrise Effect to describe the way critics often want movies to be about the thing they want them to be about—the subtext—rather than, you know, the text. Sometimes, they have a point (but if Tequila Sunrise was about repressed gay longings, we missed it entirely).

 

When my daughter was in high school, she had a teacher who insisted that To Kill a Mockingbird’s Atticus Finch was a deeply problematic character because he was a “white savior.” That’s not a wholly illegitimate argument, but if you find yourself arguing that the hero of To Kill a Mockingbird is sort of a bad guy because the subtext says so—when the actual text says the complete opposite—you’ve taken a wrong turn somewhere.

 

From subtext to pretext.

 

Anyway, back to the point. If text is what you see on the page or the screen, and subtext is the hidden or implied meaning “between the lines” as it were, what do you call it when the words are bullshit?

 

Well, you could call it a lie. But that would ruin the point of my setup. Fortunately, there’s another word that helps provide a veneer of intent in the weaving together of this “news”letter: Pretext.

 

Pretext comes from the Latin praetexere, meaning “to disguise, cover,” or literally, “weave in front.” When the prison guards come into your cell for a “hygiene inspection” but are really just there to mess with you and steal your money and old Playboy magazines, the “hygiene inspection” was a pretext. When Russian President Vladimir Putin says Ukraine has been taken over by Nazis, that’s a pretext for his unlawful invasion. If former U.S. Rep. Matt Gaetz were to tell a woman she has a spider on her blouse and then gropes her to get rid of it, the arachnid warning would be a pretext.

 

In other words a pretext is a lie—of varying degrees of plausibility—that would give a person the authority to do something he wouldn’t otherwise have.

 

I’m sorry if I sound condescending in spelling this out. I’m sure most of you know what the word means. I’m just not sure very many people know pretext when they see it—particularly when they don’t want to see it.

 

And the thing is, America is running on pretext these days. It’s been this way for a while, but it’s getting worse by the day.

 

In his first term, Donald Trump used Covid as a pretext to deport illegal immigrants. Biden kept that pretext going for a while too. He tried over and over to cancel student loans invoking all sorts of arguments that were just obviously pretextual—including Covid. Biden also used Covid as a pretext for extending a moratorium on rental payments, which Trump had issued on a pretextual basis as well. The rent freeze and eviction ban made sense when the country was on lockdown, but keeping it around long after the lockdowns was simply politics.

 

I focus on the Covid stuff because crises are the mother of pretextual politics. In our system, the only time a president has the ability to assume quasi dictatorial powers and subvert the rule of law, checks and balances, etc., is during a national emergency, especially a war.

 

This is not new to Trump or Biden. The founders, having lived through the impotence of the federal government under the Articles of Confederation, recognized that the government needed the ability to deal with emergencies. “The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed,” Alexander Hamilton writes in Federalist 23.

 

This is not an argument for an unfettered imperial president, even in times of crisis.

 

Hamilton is talking about the powers of government itself, which includes Congress and the courts. In Federalist 69, Hamilton admits that “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior.”

 

Why inferior? Because, he explains, the president is constrained by Congress and its dictates and power of the purse. Congress declares the emergency and directs the president to deal with it. And, unlike the king of Great Britain, the president can be impeached and removed and “afterwards be liable to prosecution and punishment in the ordinary course of law.”

 

It’s no accident that the power to suspend habeas corpus during an invasion or war is laid out in Article 1 of the Constitution: It’s a legislative power, which Abraham Lincoln eventually conceded. Don’t tell that to Homeland Security Secretary Kristi Noem, who recently told Congress, “Habeas corpus is a constitutional right that the president has to be able to remove people from this country.” Put aside the question of whether she was speaking from astonishing innocence or deeply unpatriotic trolling. I do want to note that presidents don’t have any special “constitutional rights.” Presidents have specific constitutional authorities—and suspending habeas corpus isn’t one of them.

 

Anyway, the point is that virtually the entire agenda of the second Trump administration is grounded in pretextual arguments. On almost every front, his stated arguments for why he’s doing what he’s doing, and from where he derives the authority to do it, are just BS.

 

He invokes the Alien Enemies Act, which grants certain powers to the president during a war or invasion, when we’re not at war and not being invaded. Spare me the argument that the presence of illegal immigrants is an invasion. It might be in some metaphorical sense, but it’s not in any legal sense. These are not foreign troops or enemy agents. I have no doubt that some enemy agents did cross our formerly porous border, but serious people can agree that for every Iranian or Chinese spy in the U.S. who came in illegally, there are, I dunno, a half million illegal immigrants who came here in search of landscaping jobs and the like. It’s fine to argue they should be deported—and for the most part they should be—but it’s not a justification to suspend habeas corpus, ignore courts, or sentence people to prison in El Salvador without a trial.

 

More to the point, Congress didn’t declare this an invasion or war. And the founders were quite explicit that the president can’t do that unilaterally.

 

On trade, it’s the same thing. He invokes emergency powers to impose taxes on the American people when the “emergency” he has in mind is that the American economy isn’t structured the way he wants. That’s not an emergency. That’s the modern economy, which he fundamentally doesn’t understand.

 

He declares fentanyl overdoses a national emergency, which is fair enough. We’ve had a lot of presidentially declared emergencies, and you can make the case that the fentanyl crisis deserves to be one too.  And I think it’s a defensible argument that a judge shouldn’t be able to gainsay a president’s judgment on what constitutes a national emergency. Of course, if the Republican-controlled Congress had the president’s back with legislation, judges wouldn’t be put in the position of doing that.

 

Regardless, why should the president be allowed to impose tariffs on Canadian timber or maple syrup because of the fentanyl crisis? Trump adviser Peter Navarro claimed that Canada had been “taken over by Mexican [drug] cartels.” That is a lie, of course (you can tell because Navarro’s lips were moving). But Trump routinely talks about those tariffs as bargaining tools and leverage for his broader trade agenda. If they’re necessary to stop the (near-nonexistent) flow of fentanyl from Canada, then using them as simply another bargaining chip illustrates that they’re not actually about fentanyl in the first place. 

 

And now Trump is pulling grants for cancer research from Harvard under the pretext of what? Fighting antisemitism? Come on.

 

He’s waging war on law firms by unilaterally declaring they are guilty of bad things, when it’s quite obvious he just likes bullying and shaking down law firms and punishing his enemies.

 

Health and Human Services Secretary Robert F. Kennedy issued a big “MAHA” report to justify a whole slew of “reforms” he wants to pursue. It turns out that much of the report is literally made up, with fictional studies and non-existent findings. It is the very definition of public policy by pretext. We want to do X: ask Chat GPT to write a report saying we’re right.

 

I’m glibly disregarding and dismissing many of the administration’s stated arguments on these and many other fronts because I find the lies insulting.

 

The whole point of a pretextual argument is to craft a plausible, often hypothetical, case for doing something that you want to do anyway. Kevin Hassett, the head of Trump’s National Economic Council, responded to the Court of International Trade’s ruling this week that blocked most of Trump’s tariffs by saying it’s a “hiccup” and that the administration is going to keep using these emergency powers as if they are constitutionally sound presidential powers. They aren’t. To the extent they have any constitutional soundness, it’s because they were granted to presidents by Congress. But, as the court rightly concluded, Trump isn’t using them the way Congress intended.

 

But you know who Trump’s obviously pretextual arguments work on? The people who simply want Trump to have as much power to do whatever he wants. They want Trump to have monarchical power. And to back up the claim that he should have them, they prattle about how he has a “mandate” to do whatever he “needs” to do to fulfill the promises he made when he campaigned for president. Never mind that I think the cult of mandates is pernicious anti-constitutional hogwash. No president has a “mandate” to violate the Constitution. And, even if you think he does, the reason we have a Constitution in the first place is to restrain politicians from exerting monarchical powers. If a candidate runs on a vow to kill every illegal immigrant in America, he has no such power or authority once elected—yes, even if he won all the swing states. Why? Because elections don’t confer any power not delineated in the Constitution.

 

But more to the point, even if you believe in the un-republican fantasy that mandates confer some supra-constitutional power to do whatever you want, the notion that this is what a majority of Americans voted for is propagandistic pretextual hooey. For sure, some people essentially voted for a reboot of the Trump show and enjoy him playing the part of wannabe autocrat. But all of them? Most of them? Almost surely not. Saying he has a mandate to do anything he wants because people believed he’d lower prices or end the war in Ukraine in a day or anything else he said is an incredibly dumb argument for saying Congress and the courts have no responsibility to play their parts in the constitutional order. By the way, if mandates are real, you know who else has a mandate? Congress. That many congressional Republicans think their mandate is to be cowardly enablers of Trump’s abuses of power isn’t the boffo argument they seem to think it is.

 

In a nutshell, this is my problem with this political moment. I like arguments. I think democracy is about arguments. Not unity. Not some majestic, mystical, expression of the Volksgemeinschaft. Our Constitution is designed to foster arguments, in Congress and between Congress and the executive. They argue about the best way to deal with a problem in an adversarial system, and the end product of those arguments is some sort of rough, temporary, consensus. Voters don’t just get their way. They get the ability to have their arguments heard and acted upon by politicians who have to deal with other politicians with different agendas derived from different voters. That’s it. That’s the system.

 

And that system can only work when there’s some truth to the texts of their arguments. It’s politics, so of course there will always be subtexts. Politicians argue that businesses need this or labor needs that, but beneath the stated arguments are unstated agendas for specific constituencies. I can live with that. But the stated arguments need some connective tissue with the facts, with truth, with good faith representations about motives and intent. When the arguments are all pretextual, you don’t get that. So arguments stop mattering because arguing with liars and fabulists is a waste of time. That’s why I am more interested in the legal fights, because at least in a courtroom, there’s a penalty for lying. In politics right now there are precious few penalties for lies, at least in part because a lot of voters have lost faith that politicians and the press really believe anything that they’re saying. If the politicians and pundits won’t bother caring about the truth, why should we? Better to just pick the lies you want to believe and call everyone else a liar for choosing different lies.