Normativity Erosion – #Make Norms Normative Again

by John Holbo on October 11, 2018

That time a ‘Constitution in Exile’ borderline anarchist libertarian and a Catholic integralist wandered into a Twitter thread to discuss political legitimacy, and it crossed neither of their minds it might be a normative notion (rather than a descriptive synonym for power, give or take.)

Scroll down the original thread for the Adrian Vermeule contribution.

Sorry I know it’s weird quoting tweets that are, like, days old. But in the old days, things took longer. Like when there was blogging. Speaking of old days: if Barnett ever gets around to rewriting Restoring The Lost Constitution in light of his new-found, neo-Thrasymachian doctrine of ‘legitimacy’, it will, at least, save trees. (And, I assume, the old cover will be replaced with one of those Banksy-fied images that has been been making the rounds. It is, at any rate, new to propose that the Framers were pranksters who implanted a shredder in the frame, to go off in 2018. And we must play along because – originalism?)

It was not ever thus. A guy named Randy Barnett once wrote:

I will contend that, if a constitution contains adequate procedures to assure that laws imposed on nonconsenting persons are just (or not unjust), it can be legitimate even if not consented to unanimously, whereas a constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if consented to by a majority. Indeed, only by realizing that the “consent of the governed” is a fiction can one appreciate the imperative that lawmakers respect the requirements of justice (whatever one believes those to be).

But this is now!

In order for a constitutional order to be legit it is necessary for critics of it to shut up already. Barnett is casting about for mechanisms. He clutches Thrasymachian pearls at the sight of ‘visigoths’, demanding justice. (The notion!)

Well, it’s possible that equating desire for justice with barbarism will work, rhetorically.

Here’s another idea. All this noise is wrong because it would have been smarter to ‘woo’ Kavanaugh. But, alas, it’s too late.



This wins my vote for most tone-deaf Barnett tweet.

Let’s review. A main concern about Kavanaugh, you may recall, is that he may have held a woman down and assaulted her and, when she cried out, covered her mouth. And then, years later, lied about it, denying he did it. Now, if the thought of such behavior offends against your sense of justice, then Barnett’s suggestion that the prudent (hence proper) thing to do to those who cry out about the one who cried out, and had her mouth covered, is to cover their mouths, so their cries do not further anger Kavenaugh now, causing him to do them harm by his judicial decisions …

Proposing to restage the alleged crime – to inscribe its form, forcefully, into the body of the justice system itself – is … not a great look.

But maybe BK didn’t do it!

That is true.

Let’s review the normative ‘illegitimacy’ charge sheet.

Those who are hopping mad about what happened are not always clear-headed about saying exactly what has got them so mad. This inconsistency can be exploited by those on the other side, making it sound like there really isn’t any coherent critique. But it’s just a case of at least three things seeming ‘illegitimate’, in somewhat different senses.

1) The Garland affair.
2) Brett Kavanaugh.
3) The Countermajoritarian Long Con.

Taking them in order:

1) The Garland affair.

Conservatives have got this thing going about how, actually, they were doing Garland a favor by not giving him a hearing. At least they didn’t drag his name through the mud, like poor Kavanaugh. But this misses the point. The Garland business crossed a line in the following sense: it revealed, in a way that hadn’t been so clear before, that the confirmation process is pure partisan politics. There was no ‘well, if the candidate is qualified …’ pretense. Everyone said Garland deserved it, on the merits. It was nice of them to admit that, in a way. (Nice for Garland.) But admitting that means admitting anything that follows from that.

For example, it concedes Republicans were doing Garland a favor insofar as, if they had been (somehow) forced to give him a hearing, they would have done everything in their power to drag his name through the mud. If you can’t stop the hearing, smear at the hearing. This is the presupposition that is supposed to make Republican look good for not holding a hearing. But, obviously, if the worst you can even imagine Dems did to BK is that they followed the rule Reps themselves follow …?

So the process is pure partisan politics – the Garland business sealed the deal on that. (It’s maybe nice to be able to say, sometimes, it’s not personal, it’s just pure partisan politics. But that’s still partisan politics.) And the nomination process. Obama tried to pick a moderate in Garland. But Republicans will pick the most radical partisan they think they can ram through. The next Dem won’t try to pick a moderate, to woo the other side. There would be no point. So it will go.

It doesn’t follow BK is illegitimate – or that the court is – from the fact that nominations are, post-Garland, completely openly politicized. But it does follow that ‘BK should be given the benefit of the doubt’ is not sensible. No one says ‘should be given the benefit of doubt’ is the standard for a candidate for the House or Senate.

There has been much job interview vs criminal trial back-and-forthing, but a better analogy would be: election. BK got elected by the Senate to the Supreme Court. Each party wants to elect a candidate likely to decide according to that party’s policy preferences (and reject any other candidate.) Now: this does not mean that elected judges will, if they win election, do as they were elected to do by their party. (Why Republicans have had worse luck with judges going rogue – that is, ‘going institutional’, so to speak – is a nice question.) But it does mean it would be odd to expect a SC election process to be less mud-slinging than, say, any other election process.

2) Brett Kavanaugh.

[I don’t know why I didn’t just say: read Henry.]

In his wisdom, Barnett links to this Federalist piece, which is about the thing I just said: the Garland business. Also this:

Kavanaugh, meanwhile, takes his seat amid swirling debates about the Supreme Court’s “legitimacy,” with substantial portions of the population thinking he’s a rapist, or at least that he would’ve been if he weren’t too drunk to pull it off. Justice Clarence Thomas went through something similar 27 years ago, but Kavanaugh’s experience in our new-media age must have been even more searing.

The idea that swirling debates about “legitimacy” caused substantial portions of the population to suspect bad things about BK is, among other strange things, backwards. (And same goes for the Thomas point.) The problem is that a letter came out – and testimony from Ford – making this charge quite plausible. Plausible things are plausible. What are you going to do: repeal epistemology? Political norm erosion may lead to some epistemic erosion, in a descriptive sense – more bias. But it for sure can’t erode it in a normative sense. It is reasonable to suspect that BK did what Ford alleges. There isn’t a force in the universe that can make it not reasonable to calibrate your credence that P to match your estimation of the likelihood of the truth that P. (Anyway, even descriptively, the Federalist cannot reasonably hope to make everyone unreasonable about evidence. Their readership is too small.)

But in what sense does being reasonably suspected of bad stuff undermine BK’s ‘legitimacy’, in either a descriptive or a normative sense?

The descriptive sense is easy: why are people pissed off? (I’ll let you fill that in, to suit your own taste in stating the fairly obvious.)

A harder question is: whether (many) people will be right to regard 5-4 decisions, with BK voting with the 5, as illegitimate – to what degree and in what sense?

Barnett – the old one – had what I think is a pretty good way of framing why we have to ask. Let me quote at some length.

Few stop to consider whether the Constitution is legitimate.

This is unfortunate because if the Constitution is not legitimate, then it is not clear why we should care what it means. And if it is legitimate, we may need to know why before we can settle on how to interpret what it says. The Constitution’s legitimacy cannot, then, simply be assumed. Unless we openly confront the question of its legitimacy, we will never know whether we should obey it, improve upon it, or ignore it altogether. (111)

A following bit is also good and seems relevant as well. Why would, say, a law professor NOT be willing to entertain a facially plausible challenge to constitutional legitimacy?

Perhaps because they seek the obedience of the faithful and, were their delegitimation entirely successful, why on earth would anyone adhere to the commands of a law professor or philosopher or political scientist? For that matter, why adhere to the commands of the man or woman in a black robe, apart from the fact that disobedience is likely to land you behind bars in an extremely treacherous environment? By subtly undercutting the legitimacy of the Constitution while at the same time preserving its much-revered form, a constitutional scholar (or judge) can become the man behind the curtain, which perhaps is every scholar’s fondest wish. Pay no attention to that bookish professor; the great and powerful Constitution has spoken!

This is a fraud on the public. (112)

For example, were it ever to happen that someone – we’ll call him Scott Shapiro – challenged the legitimacy of a judge in a robe, and someone else – we’ll call him Randy Barnett – pantomimed total inability even to hear that challenge in a normative register? What a shame and a fraud that would be. I’m sure all reasonable souls agree. (Now, in fairness to Barnett, the original passage contains a complication. Namely, he thinks the real fraud pinnacle is not plugging your ears to all challenges to legitimacy in a normative register, but doing so while insisting the interpretive norm be living constitutionism. We shall return to this point.)

As I was saying, we have to ask; and I think Barnett’s answer has a lot of plausibility as well. He talks about how legitimacy doesn’t imply (hence doesn’t require) consent. Now, that could sound kind of rape-y, so I could be snarky here. But I won’t because that would be entirely unfair (and, whatever else I may be, I wouldn’t want to be the slightest bit unfair to Barnett here.) Barnett’s simply correct, in my opinion. If everyone has to consent, positively and expressly, for the constitutional order to be legit, then – apart from fairly unusual sorts of cases – you can’t get there from here. If you think any constitutional arrangement can be legitimate, in principle, you’d better find some lower-bar way to clear it as such.

Barnett’s suggestion, as quoted above, is that a constitutional arrangement could be legitimate – that is, could generate a prima facie morally binding duty of obedience – if it is, plausibly, just. “Regardless of what conception of justice one holds, so long as one holds some conception of justice, constitutional legitimacy can be seen as a product of procedural assurances that legal commands are not unjust.”

Now, back to BK. The problem with his legitimacy, as a judge – hence the legitimacy of his judgments, of decisions that result from his vote – is that this condition is, plausibly, unmet. (I’m ok with this Barnettesque way of illegitimizing BK.) How so? There are a couple levels to it. I’ll get down to the deeper levels in the next section – the countermajoritarian long con. But first, the personality problems. If BK overturns Roe, pro-choice folks who don’t like that result may reasonably (important normative notion!) suspect the worst: this guy likes to control women’s bodies, against their will. That is, he just isn’t the type of guy who should be given the say-so about this sort of question. That’s harsh but, under the circumstances, kind of unavoidable. Maybe, in fact, he is innocent as charged. Maybe his legal motives and mental moves are on the up-and-up. But, honestly, given what we’ve seen of the guy, we can’t say we’ve seen that he’s a guy who can put his own emotions and partisan preferences aside and be a fair judge. (I mean: maybe what goes around comes around was a drinking game in high school. But it doesn’t sound like it.)

Maybe this is a casualty of the confirmation process being so partisan. It was an election (post-Garland). Everyone elected looks like a politician. Every politician looks like a partisan, not a fair judge. But, either way, it comes to the same: if the legitimacy of BK’s decisions require that they be seen as ‘a product of procedural assurances that legal commands are not unjust’, it’s hard to see how Grassley and Graham and co. ramming the candidacy through, in this manner, clears the bar. And then, ever after, it’s uncleared. (Polls, so far, make it look like people see it this way. Dems hate it, Reps love it, and independents don’t like more than they like. This is descriptive, not normative. But I’ll be it’s descriptive of people correctly perceiving the normative situation: BK didn’t get seated in a way that establishes him as a reliable source of justice.)

There is one element of the scene that is especially bad and – if BK is really innocent, by some chance – then it is the worst moral luck that this gets hung around his neck. Nevertheless, there it is. What is? They didn’t pull him and put in Barrett. Why not? Well, they wanted the base to be happy. In his testimony, after Ford gave her (credible) performance, BK played to the base. Why not? It’s an election (post-Garland). But, then again, why should someone regard a justice who wins election by playing to the conservative base as being the product of procedural assurances of justice? And there’s this. Trump obviously likes that BK was standing up to accusations of sexual assault. It’s not hard to see Trump’s personal motive in shifting the norms against #METOO. So, when reasonable people look at the court and wonder whether its decisions are legitimate, they naturally ask how the judges got there. And, concerning BK, the answer is: in substantial part because Donald Trump wanted to keep the world safe for sexual assault. That’s harsh but simply true. It may not be fair that BK gets wrapped up in that, if – let’s assume so – he’s totally innocent. Nevertheless, that’s the story of how he got there. It’s not a pretty picture. And by ‘not pretty’ I mean: no one thinks judges seated to keep the world safe for sexual assault have been rightly selected. That’s a problem.

But let’s leave BK behind. He’s just a guy, although one whose bad judicial philosophy is going to wreak havok for decades. This third item is the big ticket, in a normative, legitimation sense.

3) The Countermajoritarian Long Con.

Dems are talking court-packing and other extreme measures. They are protesting the undemocratic quality of the situation. Justices nominated for life by Presidents who didn’t win a majority, then confirmed by a Senate majority that didn’t win a majority. There is a non-trivial chance that the Republicans will retain the House, the Senate, the Presidency and the Supreme Court, without being able to claim legitimacy any any case, based on a Democratic majority. If the Dems manage to take the House, as they probably will – but probably not the Senate – then it’s a little less bad. But the strikingly un-democratic character of the conflict is the same either way. Barnett and other conservatives are telling jokes, as is their wont and their right. Here’s one that Barnett retweets:


One could point out that this isn’t what ‘popular vote’ means (as various people did.) But, honestly, you know where that kind of quibble gets you? You can’t refute a joke. And that’s fine. But the fact remains: when your best bet for answering critics is deflecting with jokes, maybe your position is a joke. Normatively. Not descriptively.

But what about the standard, civics class answer about why the thing is set up this way to keep those who have the advantage, in this system, from getting hypothetically steamrollered by big population California and New York, under some other scheme?

The problem is that, although that is a descriptively true account of why the system was adopted, it is not true that, simply because, in a flood, a firehose would be counter-indicated, therefore in a fire, you shouldn’t use a firehose to put out the fire with water.

But these are the rules!

That’s fair. But only up to a point.

Here, let me help: in politics, messed up stuff happens. Parties and candidates have advantages, and those advantages are clung to, until they slip away and things change. 10 years ago it was Dems riding a wave of demographic destiny. Now Republicans are in the cat-bird’s seat and so it goes. You win, you lose. Losers whine about it until, someday, they win again. There’s wisdom in that, even a kind of normative legitimacy, plausibly. (Justice is balance, and teetering back and forth is a poor man’s balance. But sometimes if it weren’t for poor justice, there would be none at all.)

The problem here is really what the Republicans are aiming at – what their strategy is, their best-case where-do-we-go-from-here. There is often a kind of symmetry between Democratic and Republican efforts. Which is, all the same, morally asymmetrical. Republicans try to suppress votes. Democrats try to register lots of folks to vote. Both sides are trying to win. Nevertheless, winning by forcibly depriving people of their rights is worse than winning by nudging people to exercise their rights. (Unless you want to argue otherwise.) Trying to build a new, emergent majority is morally less problematic than trying to be a permanent, governing minority that can ignore what most of the country wants.

Don’t think I couldn’t go on and on about the thorough-going badness of what Republicans are hoping to bring about, to let them cling to power! But the bottom line is: they will succeed or fail, their power holds or doesn’t. But, either way, it won’t be plausibly legitimate, in a normative sense, if justice is needed for that. If anyone wants to argue otherwise, you are welcome to try. I can’t think that you will do much better than Hugh Hewitt – “Trump May Be Outside Our Norms, But He’s Succeeding For Us All” – and that seems ‘pay no attention to the man behind the curtain’ bad enough, on its bare face. (Again, argue otherwise if you think you can.)

But suppose Barnett wants to cling just to this bit – very first lines from Hewitt’s op-ed:

As President Trump’s first two years in office come to a close, we’ve seen two originalist justices confirmed to the Supreme Court, 26 originalist appeals court judges confirmed, 10 more nominated , and 41 new district court judges on the bench and dozens more pending.

Ah, the dream! After that exile. I’m not going to ask Barnett to disdain what must look to be, from his perspective, an oasis in the desert of long lost constitutionalism. No one who feels parched can be faulted for lapping at dirty stuff. (I’m not an unreasonable person, I hope.) Yes, I get it that all sane people know that conservatives have dominated the judiciary, especially the Supreme Court, for decades. (All that howling about liberal judicial activists is shameless ref-working. I totally agree.) Nevertheless, Barnett is a total flaming radical, and radicals live in exile and have to feel good when it looks like, crazy enough, some part of their radical dream is actually coming true, coming home.

But what about legitimacy?

I’ve been amused by Tom Nichols twitter, of late. His Atlantic article on why Kavanaugh finally broke him and he’s left the Republican Party pissed off some conservatives, naturally. Now, there’s a big contrast between Nichols’ reasons for regarding both Republican means and goals as illegitimate – meaning: very incompetent and destructive and bad – and broadly leftish reasons for thinking the same. (I don’t mean to imply a false unity to the anti-Trump perspectives.) But Nichols’ way of skewering some of his critics seemed to me quite on-point.

First, the maybe-Trump ‘calling balls and strikes’ metaphor is nonsense. I’ll let him say it:


And then there’s the upside argument.


Getting back to the judges. If you like ‘em, I guess you take them. But, against the backdrop of Trump, it’s hard to see why you would call them ‘legitimate’. It’s a category error. ‘Never let a good catastrophe go to waste’ may be Machiavellian wisdom, but it isn’t a recipe for legitimacy, in a normative sense – just for some accidents you may like. Originalists ought to feel very queasy, to say the least, about getting the results they like in this way. If we recover from Trump, originalism will be tainted by association with him, even though – in theory – the two are distinct. Originalism doesn’t just want to be. It wants to be, legitimately. I take it. That’s a big part of it.

But let’s get back to ‘balls and strikes’. The fallacy here is – I dunno what it is. But I think I’ve got a term for those who commit it. Those conservatives who don’t just view Trump from the sidelines as spectators, vaguely hoping for something they like from the wreckage, but who support Trump, while yet saying they view him like an umpire – balls and strikes – are actually ‘con Hindenburgs‘. (I just named them.) Von Hindenburg actually wasn’t such a horrible guy, you see, although remembered badly because the Hitler thing really didn’t pan out. Von Hindenburg teamed up with Hitler, not to destroy the Republic – but not to call balls and strikes on Nazis either.

Conservatives who support Trump, while viewing him more or less as Tom Nichols does, are not judiciously buying a few good bits. By supporting him, in the hopes of good bits, they are buying the package, hoping for a few good bits, but knowing it could blow up.

Now, legitimacy: no con Hindenburg-types are seriously in a position to complain that the other side is illegitimate, if somebody sits on a statue. Or says a mean thing.

The dilemma for originalists (acute, in the age of Trump) can be stated like this …maybe. Suppose the only way to restore the lost Constitution, just possibly, is to ‘heighten the contradictions’, as they say, by riding the Trump tiger and hoping not to end up on the inside (with some others.)

[Dilemma for textualist originalists, if you prefer. Or ‘lost constitutionalists’, perhaps.]

Originalism is, in a doctrinal sense, not an end but a means to an end: namely, legitimate results. There’s something kind of weird about radical devotion, not to an allegedly legitimate end, but to legitimate means to an end. At all costs?

Are you or are you not permitted to use any means necessary – legitimate or illegitimate: fair or foul – in pursuit of your ideal of pursuing ideally legitimate means to your end? Can the means justify … the means? That would be the pinnacle of living constitutionalism. Sacrificed and raised from the dead, as it were.

Well, anyway, I thought it was funny that Barnett and Vermeule pretended not to be aware that ‘legitimate’ can have a normative sense.

Only time will tell, I guess, whether stumping for Trump, in this way, means going to Syracuse – or only, as it were, transferring to the Syracuse branch of Dunder-Mifflin. Let’s hope the latter, for the sake of the republic.

Was this post too short? Probably not.

{ 37 comments }

1

Dave Maier 10.11.18 at 2:52 pm

Was this post too short? Probably not.

I did miss the Attention Conservation Notice, or was that implied?

2

Brett 10.11.18 at 3:15 pm

Honestly, I thought the post could go longer. I’m a fan of any critical examination of Barnett and his ilk – I remember having a good laugh at his “Liberty Amendments”/Bill of Federalism and how they’d let states dump pollution without consequences into rivers that flow into other states.

3

Carol 10.11.18 at 3:38 pm

No, it wasn’t too short. Nice exposition

4

Patrick 10.11.18 at 3:41 pm

The big issue with legitimacy is that in real politics terms legitimacy is subjective. If half the public decides that a politician isn’t legitimate because he’s a Kenyan Muslim who infiltrated at birth to grow up to be President and undermine the nation from within, that has exactly the same real life effects as any other concern about legitimacy. What political scientists usually want to talk about might best be called something like “legitimate legitimacy,” meaning, concerns about legitimacy they think are worth respecting. But in real life legitimacy is a term we use, error theory like, as if it were a trait of a thing, when it is really the fact that some people react to a thing in a certain way.

5

BruceJ 10.11.18 at 4:40 pm

Barnett might consider cracking a history book, because the Visigoths didn’t sack Rome out of boredom and/or greed. Every time Rome was sacked it pretty much brought it upon itself.

6

dino 10.11.18 at 4:42 pm

All well done but isn’t it plain that Barnett is a complete hack who lacks all ethics/morals whether intellectually or personally? Barnett will do or support anything that advances the cause of neo-confederatarianism (especially when it comes to FedSoc and his merry band of white man marches on Mason law profs). But I think the best thing about him is that he fancies himself an anarchist yet used to be a prosecutor who used state power to imprison other people. Can’t make that shit up.

7

Salem 10.11.18 at 4:50 pm

Your argument proves far too much. A judge well known for the extreme rigour of her justice might well be controversial – and I suspect her nomination to the Supreme Court would be highly partisan, depending on whose ox was being gored at the time. But it’s a strange argument indeed that justice and legitimacy demand that our judges aren’t too just!

If the constitution is normatively legitimate to the extent that it’s plausibly just, then duly appointed judges are legitimate to the extent that they act (plausibly?) justly. The “procedural assurances of justice” are that Kavanaugh acts appropriately as a judge, according to some notion of justice. If he doesn’t do so, then that’s the illegitimacy.

There is no infinitely self-grounding system that can bootstrap procedural justice in the face of indefinite motivated disagreement. Any judicial appointment process contains politics. Just because judicial confirmations used to be less controversial, didn’t mean that politics wasn’t present – it just meant the President had a freer hand to inject his own politics. Perhaps the strangest part of your post is the suggestion that this was caused by the Garland nomination, when bitter confirmation fights date at least to Bork, if not to Fortas.

In other words, we want our judges to do justice, they don’t need an additional mandate of heaven. If the legitimate system of judging is originalist, then all judges should follow originalism, never mind how they got put on the bench. Originalism doesn’t need to win some super-secret double legitimacy, once in the realm of justice, and again in Senate norms. But if it is illegitimate, then no judge should be originalist. In other words, let’s have more about Kavanaugh’s bad judicial philosophy, because that’s what really makes him normatively illegitimate.

8

Joseph Brenner 10.11.18 at 5:26 pm

The Supreme Court interfered in the 2000 presidential election, and we’re still debating it’s legitimacy?

I was having a conversation with a conservative at one point about the general badness of electronic voting machines without paper trails, and the possibility they had been used to rig the 2004 presidential election. He was incensed– merely talking about this could undermine faith in the electoral process and lead to violent revolution in the streets and so on.

Needless to say, fears of inciting riots didn’t stop conservatives from spreading stories about Barack Obama, or ranting about “crooked Hillary”. Strangely enough, sometimes they see the virtues of free speech and the rough-and-tumble of democracy.

Nevertheless, it certainly is true the written rules don’t just enforce themselves– people have to believe in them and they get implemented according to “norms” of some sort or another. It’s not hard to think of examples of laws that exist, but only kinda-sorta– California requires cars to give three feet clearance when passing a bicycle, the average car-driver seems to think the rule is three inches.

So it’s at least hypothetically possible that *talking* about how the Supreme Court sucks could lead to some sort of breakdown of respect for the Court, though I’m having trouble imagining the exact scenario that our conservative friends are worrying about– maybe Congress gets off it’s butt and passes rules to rein in the court? Maybe a future Democratic trifecta goes for the court-expansion maneuver? (As I’m sure you folks have heard– polls show a lot of Americans already think the court has more than 9 members, and they seem to think every new president gets to pick a new set– you could completely transform the Supreme Court by making it more like people think it is.)

So I’m not particularly worried about the status of the Supreme Court, myself– it’s legitimacy went belly-up back in 2000.

I might however, suggest that there’s a conundrum here that us intellectual types don’t consider very much (and which you might ponder again some day when it doesn’t just seem like more jamming by the conservacon): we tend to assume that talking about social problems is the first step toward solving them, but it *is* possible that talking about them can have unintended consequences. Discussing your fears of a military action might get people thinking about it and make it more likely it will happen. Statistics about an upswing in racist behavior might encourage more racist behavior as the racists begin to feel normal. Reports on mass gun massacres can inspire copy-cats. Talking about motorist’s careless behavior around cyclists might give people the impression bike riding is horribly dangerous (actually, it isn’t).

There’s an implicit hope underlying something like Chomsky’s criticisms of American foreign policy: if only the people knew, they’d insist we do better. Myself, I fear if only the people knew, they might go “oh fuck it, let’s just be an empire already”.

And coming back to the cold civil war: Once you very carefully document the partisan character of the Supreme Court, you may very well have inadvertently doomed any hope of reversing that, as people accept it as the new Norm.

The quote conservative side loves the fall-back position “both sides do it (so we don’t have to stop!)”.

9

Joseph Brenner 10.11.18 at 5:28 pm

Dave Maier @1: “I did miss the Attention Conservation Notice, or was that implied?”

The Attention Conservation Notice was the word “Twitter”.

10

alfredlordbleep 10.11.18 at 5:38 pm

You might mean Textualists instead of Originalists, JH? Haven’t set aside a sunny day to read you in entirety, you see?
:-)

11

reason 10.11.18 at 7:47 pm

I always find it hard to understand how anybody could think that a constitution that was decided upon almost 250 years ago is somehow legitimate. Nobody alive voted for it. I’m coming to view that as a general rule everybody should be involved in a constitutional renewal process once in their lifetime. Humans learn! We don’t even trust last years software, but we think software our great, great, great, great, great grandparents decided upon is still state of the art?

12

Trader Joe 10.11.18 at 7:49 pm

Plausibly the only way a moderate ends up on the bench is if the Senate is the opposite party of the sitting President and, given the circumstances of the created opening (perhaps a death), either the Senate or the President is able to convince opinion that not filling the opening would be a bad idea.

In which case, at least plausibly, the President would propose some sort of leaning moderate to not be viewed as obstructing filling the court and the Senate might, plausibly, vote them through.

As per the OP, I think the logic is party independent since the proverbial toothpaste is out of the tube now and the race to the bottom (or what I hope is the bottom) has been pretty quick. I think either party that controls both the Senate and WH would do as was done with BK and any split would lean towards what was done with Garland unless a Senate felt it was more damaging to obstruct (which McConnell never felt, but perhaps other leaders would feel different).

One wonders, for example, what McConnell would have done had the Garland nomination been say 1 year earlier. He may still have done what he did, but the argument would have had to be different and even weaker.

13

John Holbo 10.11.18 at 10:25 pm

“You might mean Textualists instead of Originalists, JH?”

I think I meant textualist originalism! But who has time to type such long stuff!

14

Theophylact 10.11.18 at 10:28 pm

One wonders, for example, what McConnell would have done had the Garland nomination been say 1 year earlier. He may still have done what he did, but the argument would have had to be different and even weaker.

The Republicans gained control of the Senate in the 2014 midterm election. Before that, McConnell could have pissed up a tree, but he couldn’t have prevented the nomination process getting at least as far as a floor vote.

15

PatinIowa 10.11.18 at 10:34 pm

I’ve been filling out my Medicare forms this morning, which means I’m old enough to have seen the “Impeach Earl Warren,” bumper stickers and billboards, back in the day.

What drove the right around the bend in that moment were Brown v Board of Education, Gideon, Griswold, voting rights, and freedom from imposed school prayer. Most all, Brown and what followed from that. I know this because Republicans I knew didn’t hesitate to tell me about it at the time. They’d get around to “original intent,” by and by, but they warmed up by bemoaning the fact that they would have to share space and/or power with those–you knew who they meant–people.

So conservatives can spare me their mealy-mouthed invocation of “legitimacy.” For most of them–to be fair, not all–a “legitimate” court is and always will be nine white guys who go to church on Sunday.

I suspect, based on my reading of Corey Robin, that Justice Thomas might agree with.

16

J-D 10.11.18 at 11:45 pm

For that matter, why adhere to the commands of the man or woman in a black robe, apart from the fact that disobedience is likely to land you behind bars in an extremely treacherous environment?

Isn’t that enough reason, and why would anybody need any more?

17

Ebenezer Scrooge 10.11.18 at 11:52 pm

I think Barnett is right–legitimacy is an objective social fact. But he then implies that trying to alter this fact is somehow heinous. Does this mean that the First Amendment is inconsistent with original intent? Or maybe Barnett’s notion of the First Amendment is that it applies to policies, but not institutions? (This is close to the reading of the First Amendment in the Dennis case. Or maybe the First Amendment should be exiled from the Constitution in Exile? Feh.

18

Alan White 10.12.18 at 12:49 am

J-D @ 16 apparently you go with the “right because God commands it” alternative of the Euthyphro dilemma. Right=whoever can kick ass.

19

J-D 10.12.18 at 1:38 am

Alan White

No. The question I quoted made no reference to what is or is not right, and neither did my answer.

Now, if the question were ‘Is it right to adhere to the commands of the man or woman in a black robe?’, then the answer would be ‘It depends: if nothing else, it depends on what the commands are’.

Given these three possible positions–
‘It is always right to adhere to the commands of the judge’;
‘It is never right to adhere to the commands of the judge’;
‘Sometimes it is right to adhere to the commands of the judge and sometimes it isn’t’
–I reject the first two and affirm the third.

The question ‘Why is it right to adhere to the commands of the judge?’ presupposes that it is right to adhere to the commands of the judge, so it’s a loaded question.

Now, in response to the question I actually quoted, I framed a question which could be regarded as rhetorical, but think about it for a moment as if it weren’t rhetorical and I’d be interested to know what answer you come up with.

20

Jerry Vinokurov 10.12.18 at 2:17 am

All well done but isn’t it plain that Barnett is a complete hack who lacks all ethics/morals whether intellectually or personally? Barnett will do or support anything that advances the cause of neo-confederatarianism (especially when it comes to FedSoc and his merry band of white man marches on Mason law profs).

I have to agree with this. All very entertaining and I do appreciate JH diving into the muck for our amusement, but at the same time: who cares? Is Randy Barnett going to be shown wrong by his own logic and therefore vanish in a puff of smoke? No, he is not. Whatever he was writing 10 years ago was being written in another political context so he did the thing that conservative legal academics do when their favored regime is out of power, which is to pitch their ideas in the register apt to be accepted by liberal academics. And it worked! He was invited all over the place to talk about his theories including noted hotbed of conservatism Brown, where I was a grad student in the late aughts. And now his people are in power and the mask drops and he no longer has to pretend that he gives a shit about what liberals think; he’s free to voice his own opinions since they concord with the opinions of those in power. It’s fun to go back and point at how he’s reversed himself and so on but ultimately, it just feels like an empty exercise.

21

J-D 10.12.18 at 3:47 am

reason

It may interest you to know that Thomas Jefferson held the same opinion, arguing that the living should not be ruled by the dead.

22

Alan White 10.12.18 at 4:14 am

JD perhaps I was ungenerous in my interpretation of your use of the quote with respect to your answer. I want to make room for the just nature of at least some civil disobedience based on the rational nature of the latter’s justification, which does not conflict with your affirmation of ‘Sometimes it is right to adhere to the commands of the judge and sometimes it isn’t’.

23

Chris Bertram 10.12.18 at 7:30 am

I often get a sense of vertigo thinking about legitimacy, because of its many senses with their varying degrees of normativity. Apropos the United States (and for that matter the United Kingdom) I think we’ve long been in a condition where a kind of weak philosophical anarchism is roughly the right attitude: sometimes one should obey because one frankly doesn’t have much choice and occasionally because the particular practice co-ordinated by a state authority is, if not fair, at least above a minimal threshold of fairness. When they aren’t even trying to be fair, well, they have a lot of power (so ordinary folk had better knuckle under, mostly) but no reason to grant them respect and authority.

Recalling the English Conservative politician Quintin Hogg (later Lord Hailsham) who railed against “elective dictatorship” and is mostly remembered for having done so, but became in power one of Margaret Thatcher’s faithful enforcers.

24

J-D 10.12.18 at 8:40 am

Alan White

JD perhaps I was ungenerous

No sweat. Perhaps I was too brief.

Now, if the question were ‘why disobey the commands of the man or woman in a black robe, when disobedience is likely to land you behind bars in an extremely treacherous environment?’, my answer would be ‘because some things are worth risking imprisonment for’. It makes a difference how the question is framed. The framing of the question I originally responded to was weird to me, because it suggested that the risk of imprisonment could be discounted as a reason for obeying judges, when it’s obvious to me that the risk of imprisonment is one of the main reasons (not the only one, but one of them) why people do obey judges: hence my response.

25

Z 10.12.18 at 8:55 am

I’m with dino and Jerry Vinokurov: I enjoy reading your entertaining screeds as much as anyone else, sure, but in the end the situation is quite clear. The United States of America has abandoned even the pretense of being ruled under the rule of laws reflecting the political will of the people, and that happened almost 20 years ago. So I see little point in engaging seriously or even semi-seriously with its supposed institutions and norms – even perfectly democratic institutions and norms cannot magically transform an undemocratic society into a democratic society, and American institutions and norms have strong strikingly undemocratic components – and no point in trying to convince people or to state clearly our side of the argument; everyone has made up his mind already. Now is the time to campaign on an explicit radical transformation of the system, seize power on that basis and actually radically transform it. Your fellow blogger Corey Robin has some ideas at his own blog (theses 5 and 7 especially).

26

J-D 10.12.18 at 9:04 am

Salem

Any judicial appointment process contains politics. Just because judicial confirmations used to be less controversial, didn’t mean that politics wasn’t present – it just meant the President had a freer hand to inject his own politics. Perhaps the strangest part of your post is the suggestion that this was caused by the Garland nomination, when bitter confirmation fights date at least to Bork, if not to Fortas.

You don’t want to go further back, to Nathan Clifford? or even further back, to Alexander Wolcott?

27

SusanC 10.12.18 at 11:35 am

I have some sympathy with Barnett’s view here.

In terms of speech act theory, is “the court is illegitimate” a performative, or a statement of fact?

“Down with the King!”, “Down with Communist Party!”, “the court is illegitimate” etc. have a performative feel to them.

Under absolute monarchy, they’re typically a sign that someone is about to have their head cut off, either the people shouting “down with king!” or the king himself, depending on who has the most support.

(NB. The United States us not an absolute monarchy, and is more tolerant of borderline treasonous bloggers)

28

Michael Sullivan 10.12.18 at 11:53 am

Dave@1: If you’ve read crooked timber for more than 5 minutes you realize that the byline was an attention conservation notice.

29

Salem 10.12.18 at 12:52 pm

You don’t want to go further back, to Nathan Clifford? or even further back, to Alexander Wolcott?

Not really, no. Those are not part of the same process.

The judicial confirmation process has seen a continuously escalating war of tit-for-tat since Bork’s failed nomination. Some people think that this really dates back to Fortas, and that there was a brief lull in the late 70s. I’m not so sure about that.

But it’s patently ridiculous to think this starts at the Garland nomination, which was merely the culmination of years of obstruction of Obama’s judicial nominations.

30

Orange Watch 10.12.18 at 3:07 pm

Theophylact@14:

The Republicans gained control of the Senate in the 2014 midterm election. Before that, McConnell could have pissed up a tree, but he couldn’t have prevented the nomination process getting at least as far as a floor vote.

Your timeline is off. Scalia died in Feb ’16, so if he had died a year earlier, the GOP would have still held the Senate.

Having said that, McConnell was recently asked about a hypothetical vacancy in 2020, and replied “we’d have to see” while retconning his reasoning for blocking Garland from “confirmations cannot occur during a presidential election year” to “confirmations cannot occur during a presidential election year when the President is not of the same party as the Senate majority“. So we fairly clearly have our answer of what he’d’ve done a year earlier: find a different means to his fixed end.

31

dilbert dogbert 10.12.18 at 10:57 pm

“Talking about motorist’s careless behavior around cyclists might give people the impression bike riding is horribly dangerous (actually, it isn’t).
From a horseman’s view point:
“Talking about bicyclist’s careless behavior around horses might give people the impression that horseback riding is horribly dangerous (actually, it is).”
Full disclosure: Ride horses and bikes.
I am always amazed at bicyclists riding Hwy 49 from Auburn towards Cool up and down the American River Canyon where on tight corners there is no shoulder. The logging trucks and gravel trucks can only give the bikers 3feet if they take it from the other lane.
Doctors and lawyers in spandex on bikes in the SF Peninsula area don’t give a shit.

32

J-D 10.13.18 at 7:29 am

Salem

In other words, we want our judges to do justice, they don’t need an additional mandate of heaven.

I concur. I have observed in a previous discussion here that judges who do their job well deserve respect for doing well a job which is often (especially if they are judges on the highest appellate courts) important and difficult, but that judges who do their job badly do not acquire an entitlement to respect just for the position they hold.

If you’re getting a lot of bad judges, you may need to think about changing the system that provides you with judges, but the reason for that is not that the process lacks legitimacy (whatever you mean by that) but because it seems to be producing bad results. (On the other hand, if you’ve got a system that is supplying you with mostly excellent judges, then you’ve got no reason to be worrying about its legitimacy.)

The probable result of debating the legitimacy of the system is to divert attention from the actual judges and the way they do their jobs, which is the basis for real practical concern.

33

Heliopause 10.13.18 at 4:23 pm

“The Garland business crossed a line in the following sense: it revealed, in a way that hadn’t been so clear before, that the confirmation process is pure partisan politics.”

I suppose this statement is correct in a sense. Prior to Garland complete idiots were perhaps unaware that partisan politics play a strong role in the SCOTUS confirmation process.

When I was young it was a little bit different. Most but justices filled the following unofficial requirements: (1) have at least some legal background, (2) be personally or politically connected to whomever happened to be President. Things evolved pretty quickly in the 80s, with naked ideology becoming more prominent in the process. That’s when elite media started establishing their own unofficial requirements; the nominee must be “qualified,” and must pretend to not be ideological during a circus-like televised hearing. Behind the scenes, of course, something different was going on; the competing interests were negotiating a kind of ideological “balance” that a majority of senators could live with.

While liberals and Democrats, predictably, cast McConnell as the prime norm-eroder in the Garland affair, in fact it was Obama who started it by nominating a “moderate” for what was an Official Hard Right seat. Not that one should really blame Obama, nominating an unrepentant asshole in the Scalia mold is just not in his nature. So maybe we can say that it’s Scalia’s fault for dying when he did.

It’s at this point that I’ll repeat for the thousandth time that the Constitution has diddly to say about how the POTUS chooses his nominee or what criteria the Senate use to confirm. All of this is perfectly within the “norm” established by the Constitution, as I’m sure all the Strict Constructionists here at CT will appreciate. All the rest about “qualifications,” “temperament,” and so forth are inventions of our elite media.

Back to the norm-erosion. Trump pulled a Reverse Obama and appointed an ideologue to the Official Swing Seat. This was a huge problem for Dems for reasons I explained above, and for elite media because their bullshit about “qualifications” was surely about to be exposed. Whatever else you think of Kavanaugh he is certainly “qualified” by elite media’s standards, so that’s when Dems and media came up with, not only a serious sex allegation, but deconstruction of high school yearbook jargon from the early 80s. Yes, scrutinizing every stupid thing a public figure might have said as a teenager several decades ago is a huge norm erosion in itself, but we live in the times of eroding norms.

34

J-D 10.14.18 at 2:18 am

Heliopause

It is not accurate to say that the issue of whether Supreme Court nominees are qualified was raised by the ‘elite media’ (no matter what that means) in the 1980s.

The American Bar Association (through its Standing Committee on the Federal Judiciary) has been rating nominees for positions on the Federal bench (including, but not only, the Supreme Court) as ‘Well Qualified’, ‘Qualified’, or ‘Not Qualified’ since 1953.

The American Bar Association is not part of the ‘elite media’, no matter what that means: but ABA ratings of Supreme Court nominees are obviously newsworthy.

(The most recent occasion on which the ABA gave a Supreme Court nominee a rating other than ‘Well Qualified’ was the nomination of Clarence Thomas; the nomination of Harriet Miers was withdrawn before the ABA had made a rating.)

35

Chris Bertram 10.14.18 at 7:20 am

Les Green’s reflections here:

https://ljmgreen.com/2018/10/07/the-us-as-a-borderline-case-of-law/

seem relevant to this thread.

36

mpzrd 10.14.18 at 4:22 pm

Trying to build a new, emergent majority is morally less problematic than trying to be a permanent, governing minority that can ignore what most of the country wants. 

I think you can observe a lot of this as interpersonal interactions in office or family or other somewhat organized social settings. What has naturally happened is that our strategies/behavior as aculturated individuals has trickled upwards into our person-like political parties, corporations, whatnot. So eg, the Republican Senate has evolved fom a friendly uncle into an abusive manipulator similar to the average media producer or athletics coach.

You can’t argue somebody into good behavior. What’s needed is a change of heart. A conversion experience.

‘balls and strikes’. The fallacy here is – I dunno what it is.

Framing. The umpire pays attention to lots of stuff besides B&S: balks, timeouts, fan interference, close plays at the plate, communication with other umps, keeping the historical record, personal safety, adherence to norms of display. Game Management, writ large. As for by-th-book B&S, we get a better picture at home from the tv nicely framed, than the ump has behind the plate, and we can see perfectly well that existing umps do a a pretty good but not great job of it.

Every abuser is enabled by their ability to frame perceptions (even literally what can be seen)and semantics, that is, by bystanders acceptance of the frame.

Cool post. [… was Whirrlaway if anybody cares. Fuck that “stable identity” shit.]

37

TM 10.14.18 at 8:17 pm

Heliopause 33: “it was Obama who started it by nominating a “moderate” for what was an Official Hard Right seat”

It’s all Obama’s fault because he nominated a competent moderate instead of a right wing extremist to the highest court. We have heard many outlandish pieces of Obama hatred but the silliness cum viciousness of that one is hard to top.

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