foreignpolicy--2020-09-29--America Needs to Prosecute Its Presidents

America Needs to Prosecute Its Presidents Electoral defeat for Donald Trump , even if the transition of power goes smoothly , will not be the end of the country ’ s political crisis .
It would instead be the beginning of the next test of the American political system : confronting the record of wrongdoing left by the Trump administration , both the crimes committed in office and crimes overlooked due to his power .
Grappling with the Trump post-presidency will include delicate questions about how to investigate potential criminal and civil wrongdoing committed by the president , his associates @ @ @ @ @ @ @ is a chance the country may not be up to this task .
There ’ s one clear precedent for worrying : President Gerald Ford ’ s pardon of his criminal predecessor ( and tax cheat ) Richard Nixon , and the subsequent elite embrace of that pardon .
That means it ’ s important to lay out the case for why a potential President Biden should not pardon Trump for offenses committed against the United States .
To be sure , Biden has pledged not to do so .
Yet there have @ @ @ @ @ @ @ wobbly .
Whereas in 2019 , Biden emphasized that Trump ’ s actions merited scrutiny ( “ This guy does all these things that put us in jeopardy and he gets off ?
” he said to Radio Iowa ) , in an August NPR interview he emphasized instead that pursuing criminal charges against a former president would be “ a very , very unusual thing ” and “ probably not very—how can I say it ?
—good for democracy.
” These shifting stances may just be an attempt to calm nervous voters @ @ @ @ @ @ @ is also what we would expect from a candidate attuned to the conventional wisdom of U.S. elites : that pardons of even criminal ex-presidents can heal the country .
The American political system has no tradition of official disgrace or damnatio memoriae .
All presidents are honored , even those who were awful or , in the case of President John Tyler , disloyal .
Tyler , the tenth president , not only ran a disastrous administration but ended his public life as a congressman in a brief-lived treasonous slave power .
And @ @ @ @ @ @ @ including a presidential dollar coin featuring his image .
That coin illustrates the natural arc of American political culture : institutional ignoring of the misdeeds of the powerful in the name of “ healing.
” Yet this norm does not heal ; it harms .
It makes a mockery of Americans ’ belief that they have a government of laws , not of men , if those laws do not apply to the men who enforce the laws .
It constitutes a denial of justice and an amnesty granted only to the powerful @ @ @ @ @ @ @ protect Trump from the reckoning that the country needs .
Consider how the system dealt with Nixon .
Time has so effaced the details of Nixon ’ s malfeasance that he has regained a patina of statesmanship .
Thus , Richard Haass , president of the Council on Foreign Relations , could recently tweet a favorable comparison between Nixon and Trump , arguing that that “ Nixon , for all his flaws , was a conservative who abided by norms.
” Haass ’ s viral tweet reflects an irony that , in death @ @ @ @ @ @ @ the sort of institution whose rejections kindled in him a lifelong resentment of the Eastern Establishment he tried to join .
In doing so , it reflects a general amnesia about why Watergate was so bad that illustrates how far elite culture will go to forgive the crimes of the powerful .
The signature moment of Watergate is the June 17 , 1972 , break-in , when a team of burglars were caught in the Democratic National Committee headquarters .
Reporting and investigations soon uncovered ties to the White House .
But that @ @ @ @ @ @ @ dirty iceberg .
Subsequent prosecutorial and congressional investigations broke apart not just the Nixon administration ’ s frantic , illegal cover-up of its ties to the burglary but uncovered an entire panoply of what Attorney General John Mitchell called the “ White House horrors.
” These included use and the attempted use of government agencies like the IRS to go after the president ’ s political enemies .
The administration sought to persecute its enemies , leading to abuses like an attempt to steal the files of dissident Daniel Ellsberg ’ s psychiatrist @ @ @ @ @ @ @ retrieve classified papers from the Brookings Institution by any means necessary , including stealing them or firebombing the think tank .
Even the Watergate break-in turned out to be the second one—the first , on May 28 , 1972 , had been undetected .
And Nixon was not above using his position to enrich himself .
He used government agencies to improve his private residences .
And he evaded taxes , including by improperly claiming deductions related to his gift of his vice-presidential papers to the government .
Far from abiding by norms @ @ @ @ @ @ @ None of this should have come as a surprise given Nixon ’ s pre-presidential career , including his use of campaign funds for personal expenses ( sanitized as his so-called Checkers speech ) , his attempt to win the 1968 election by sabotaging Vietnam peace talks , and his ties to various underworlds .
Nixon ’ s wrongdoing extended far beyond the break-in and coverup .
His administration displayed a consistent pattern of abuse of powers matching or exceeding that of Trump .
And yet somehow minimizing that pattern of abuse has become @ @ @ @ @ @ @ In Alan Brinkley ’ s widely assigned high school history textbook The Unfinished Nation ( 1992 ) , for example , Watergate receives two and a half pages , without mentioning any specific crime other than the break-in .
This revisionist history may explain why , in a 2014 CNN survey , only 51 percent of Americans reported considering Watergate a “ very serious matter ” that revealed unusual corruption in the Nixon White House , while 46 percent reported that the scandal was “ just politics–the kind of thing both parties engage @ @ @ @ @ @ @ blandly mentions that President Gerald Ford , Nixon ’ s successor , suffered political consequences from his decision to offer Nixon a blanket pardon for wrongdoing while in office .
Pointedly , Ford had rejected pardoning Nixon during his confirmation hearings as vice president .
Once in office , though , a chorus of voices lobbied him to change his mind , claiming that neither the country nor Nixon himself might survive the trial .
Ford ’ s pardoning of Nixon was unpopular at the time , with 53 percent of Americans rejecting @ @ @ @ @ @ @ wisdom among America ’ s institutional elite that Ford ’ s act was merciful and correct .
In 2001 , a panel of eminences recruited by the John F. Kennedy Library Foundation honored Ford ’ s pardon of Nixon by giving him its Profiles in Courage Award .
At the awards dinner , Senator Ted Kennedy praised the wisdom of Ford ’ s decision .
“ I was one of those who spoke out against his action then , ” Kennedy said .
“ But time has a way of clarifying past events @ @ @ @ @ @ @ Ford was right .
His courage and dedication to our country made it possible for us to begin the process of healing and put the tragedy of Watergate behind us.
” It ’ s hard to find dissenters from this view in D.C. power circles .
Yet there are those who view Kennedy ’ s argument as dangerously wrong-headed .
One of those was Elizabeth Holtzman , who in 1974 was a firebrand first-term liberal representative from New York City who sat on the House Judiciary Committee during its impeachment hearings .
In @ @ @ @ @ @ @ Presidential Library , Holtzman called the “ healing ” argument “ nonsense ” .
“ In my mind , the impeachment process brought the country together , because whether you had voted for Nixon , whether you ’ re Republican or Independent or Democrat or unaffiliated , you felt that the rule of law had finally been carried out , ” she said .
“ We reconnected to our commitment to the rule of law and then we had President Ford come in and [ shatter ] that.
” By downplaying the seriousness @ @ @ @ @ @ @ stopping further consequences , the pardon made it possible to reduce Watergate from the White House horrors to the break-in .
It also enabled Nixon ’ s rehabilitation .
When Nixon died , President Bill Clinton ordered the closing of government offices “ as a mark of respect for Richard Milhous Nixon.
” In a cloying eulogy delivered “ on behalf of a grateful nation , ” Clinton praised Nixon ’ s legacy in domestic and foreign policy , without a single reference to Watergate or abuse of power other than the banal @ @ @ @ @ @ @ The healing myth has become part of a bipartisan catechism even though its central premise—that the pardon healed the country—is unsupportable .
In the long run , as Holtzman said , “ the Nixon pardon has had terrible ramifications.
” It set the stage for later pardons related to executive self-interest , including George H.W .
Bush ’ s pardons of many figures involved in the Iran-Contra scandal .
If U.S. political culture can congratulate itself for rehabilitating Nixon , then the temptations for a Biden administration to do the same for Trump @ @ @ @ @ @ @ let the administration move on to other priorities , sensible centrists will argue .
And the next election is only two years away—do you really want to have Trump still in the news by then ?
Advocates of a pardon or other forms of clemency will point to other factors as well .
They will argue that , in a polarized country , the specter of politicized prosecutions will raise the possibility that vengeful Republicans will retaliate later .
And indeed , it would be disastrous for democracy were each administration to misuse @ @ @ @ @ @ @ given what we already know about the president ’ s finances and conduct in office , an investigation of the Trump administration is unlikely to be politicized in any meaningful sense .
It is only a refusal to prosecute that could be politicized , in the sense of being guided by political calculation rather than a commitment to the rule of law .
( That would apply doubly to the idea that a pardon could help ease Trump out of the White House without strife . )
More sophisticated observers might caution that @ @ @ @ @ @ @ effects on U.S. politics and the country ’ s standing in the world .
The prosecutions of Brazil ’ s most recent presidents—Lula , Dilma , and Michel Temer—did much to clear the way for the election of the country ’ s disastrous current president , Jair Bolsonaro .
Similar concerns have been raised about other prosecutions elsewhere , like Ecuador ’ s conviction of former president Rafael Correa , which barred him from a return to politics .
But it ’ s strange to argue that democracy depends on not prosecuting those @ @ @ @ @ @ @ even a prime minister caught misusing public funds may now go to jail rather than retire to a villa .
And although some have criticized South Korea for prosecuting its ex-presidents ( over half of whom are now in prison ) , measures like the Varieties of Democracy index show that Seoul ’ s record on liberal democracy is stronger than that of the United States .
It should not be surprising that democracy and prosecutions of former officials can go together .
That is , after all , the entire point of @ @ @ @ @ @ @ to account forms a critical part of strengthening democratic institutions .
And the ballot box is only one way to do that .
That is why Biden must not waver .
If a former president has never been prosecuted in American history , that ’ s because the last time the country had a chance to do so it was denied that opportunity .
Far from being bad for democracy , a sober , lengthy , and deliberative investigation would be good for establishing a record of the rot in the Trump administration @ @ @ @ @ @ @ boost for liberal democracy and anti-corruption efforts by demonstrating that in mature democracies , officials face consequences .
Having a president who committed crimes is not unprecedented in American history .
What would be unprecedented would be to end this long national nightmare by letting them face the same justice that any other American should .

Electoral defeat for Donald Trump, even if the transition of power goes smoothly , will not be the end of the country’s political crisis. It would instead be the beginning of the next test of the American political system: confronting the record of wrongdoing left by the Trump administration, both the crimes committed in office and crimes overlooked due to his power.
Electoral defeat for Donald Trump, even if the transition of power goes smoothly, will not be the end of the country’s political crisis. It would instead be the beginning of the next test of the American political system: confronting the record of wrongdoing left by the Trump administration, both the crimes committed in office and crimes overlooked due to his power.
Grappling with the Trump post-presidency will include delicate questions about how to investigate potential criminal and civil wrongdoing committed by the president, his associates, and his family. And there is a chance the country may not be up to this task.
There’s one clear precedent for worrying: President Gerald Ford’s pardon of his criminal predecessor (and tax cheat) Richard Nixon, and the subsequent elite embrace of that pardon. That means it’s important to lay out the case for why a potential President Biden should not pardon Trump for offenses committed against the United States.
To be sure, Biden has pledged not to do so. Yet there have been signs that he may be going wobbly. Whereas in 2019, Biden emphasized that Trump’s actions merited scrutiny (“This guy does all these things that put us in jeopardy and he gets off?” he said to Radio Iowa), in an August NPR interview he emphasized instead that pursuing criminal charges against a former president would be “a very, very unusual thing” and “probably not very—how can I say it?—good for democracy.”
These shifting stances may just be an attempt to calm nervous voters. But the direction of that shift is also what we would expect from a candidate attuned to the conventional wisdom of U.S. elites: that pardons of even criminal ex-presidents can heal the country.
The American political system has no tradition of official disgrace or damnatio memoriae. All presidents are honored, even those who were awful or, in the case of President John Tyler, disloyal. Tyler, the tenth president, not only ran a disastrous administration but ended his public life as a congressman in a brief-lived treasonous slave power. And yet even Tyler receives official remembrances, including a presidential dollar coin featuring his image.
That coin illustrates the natural arc of American political culture: institutional ignoring of the misdeeds of the powerful in the name of “healing.” Yet this norm does not heal; it harms. It makes a mockery of Americans’ belief that they have a government of laws, not of men, if those laws do not apply to the men who enforce the laws. It constitutes a denial of justice and an amnesty granted only to the powerful. Left unchallenged, this norm will protect Trump from the reckoning that the country needs.
Consider how the system dealt with Nixon.
Time has so effaced the details of Nixon’s malfeasance that he has regained a patina of statesmanship. Thus, Richard Haass, president of the Council on Foreign Relations, could recently tweet a favorable comparison between Nixon and Trump, arguing that that “Nixon, for all his flaws, was a conservative who abided by norms.”
Haass’s viral tweet reflects an irony that, in death, Nixon has finally been accepted by the sort of institution whose rejections kindled in him a lifelong resentment of the Eastern Establishment he tried to join. In doing so, it reflects a general amnesia about why Watergate was so bad that illustrates how far elite culture will go to forgive the crimes of the powerful.
The signature moment of Watergate is the June 17, 1972, break-in, when a team of burglars were caught in the Democratic National Committee headquarters. Reporting and investigations soon uncovered ties to the White House. But that was just the tip of a very dirty iceberg. Subsequent prosecutorial and congressional investigations broke apart not just the Nixon administration’s frantic, illegal cover-up of its ties to the burglary but uncovered an entire panoply of what Attorney General John Mitchell called the “White House horrors.”
These included use and the attempted use of government agencies like the IRS to go after the president’s political enemies. The administration sought to persecute its enemies, leading to abuses like an attempt to steal the files of dissident Daniel Ellsberg’s psychiatrist. The president directed his aides to retrieve classified papers from the Brookings Institution by any means necessary, including stealing them or firebombing the think tank. Even the Watergate break-in turned out to be the second one—the first, on May 28, 1972, had been undetected.
And Nixon was not above using his position to enrich himself. He used government agencies to improve his private residences. And he evaded taxes, including by improperly claiming deductions related to his gift of his vice-presidential papers to the government. Far from abiding by norms, he broke them with abandon.
None of this should have come as a surprise given Nixon’s pre-presidential career, including his use of campaign funds for personal expenses (sanitized as his so-called Checkers speech), his attempt to win the 1968 election by sabotaging Vietnam peace talks, and his ties to various underworlds.
Nixon’s wrongdoing extended far beyond the break-in and coverup. His administration displayed a consistent pattern of abuse of powers matching or exceeding that of Trump.
And yet somehow minimizing that pattern of abuse has become the literal textbook version of history. In Alan Brinkley’s widely assigned high school history textbook The Unfinished Nation (1992), for example, Watergate receives two and a half pages, without mentioning any specific crime other than the break-in.
This revisionist history may explain why, in a 2014 CNN survey, only 51 percent of Americans reported considering Watergate a “very serious matter” that revealed unusual corruption in the Nixon White House, while 46 percent reported that the scandal was “just politics–the kind of thing both parties engage in.”
Brinkley’s textbook later blandly mentions that President Gerald Ford, Nixon’s successor, suffered political consequences from his decision to offer Nixon a blanket pardon for wrongdoing while in office.
Pointedly, Ford had rejected pardoning Nixon during his confirmation hearings as vice president. Once in office, though, a chorus of voices lobbied him to change his mind, claiming that neither the country nor Nixon himself might survive the trial.
Ford’s pardoning of Nixon was unpopular at the time, with 53 percent of Americans rejecting it. It has since become conventional wisdom among America’s institutional elite that Ford’s act was merciful and correct. In 2001, a panel of eminences recruited by the John F. Kennedy Library Foundation honored Ford’s pardon of Nixon by giving him its Profiles in Courage Award.
At the awards dinner, Senator Ted Kennedy praised the wisdom of Ford’s decision. “I was one of those who spoke out against his action then,” Kennedy said. “But time has a way of clarifying past events, and now we see that President Ford was right. His courage and dedication to our country made it possible for us to begin the process of healing and put the tragedy of Watergate behind us.”
It’s hard to find dissenters from this view in D.C. power circles. Yet there are those who view Kennedy’s argument as dangerously wrong-headed. One of those was Elizabeth Holtzman, who in 1974 was a firebrand first-term liberal representative from New York City who sat on the House Judiciary Committee during its impeachment hearings.
In an oral history with the federal Nixon Presidential Library, Holtzman called the “healing” argument “nonsense”. “In my mind, the impeachment process brought the country together, because whether you had voted for Nixon, whether you’re Republican or Independent or Democrat or unaffiliated, you felt that the rule of law had finally been carried out,” she said. “We reconnected to our commitment to the rule of law and then we had President Ford come in and [shatter] that.”
By downplaying the seriousness of Nixon’s crimes, and stopping further consequences, the pardon made it possible to reduce Watergate from the White House horrors to the break-in. It also enabled Nixon’s rehabilitation.
When Nixon died, President Bill Clinton ordered the closing of government offices “as a mark of respect for Richard Milhous Nixon.” In a cloying eulogy delivered “on behalf of a grateful nation,” Clinton praised Nixon’s legacy in domestic and foreign policy, without a single reference to Watergate or abuse of power other than the banal acknowledgment that “He made mistakes.”
The healing myth has become part of a bipartisan catechism even though its central premise—that the pardon healed the country—is unsupportable. In the long run, as Holtzman said, “the Nixon pardon has had terrible ramifications.” It set the stage for later pardons related to executive self-interest, including George H.W. Bush’s pardons of many figures involved in the Iran-Contra scandal.
If U.S. political culture can congratulate itself for rehabilitating Nixon, then the temptations for a Biden administration to do the same for Trump will be powerful. Doing so will let the administration move on to other priorities, sensible centrists will argue. And the next election is only two years away—do you really want to have Trump still in the news by then?
Advocates of a pardon or other forms of clemency will point to other factors as well. They will argue that, in a polarized country, the specter of politicized prosecutions will raise the possibility that vengeful Republicans will retaliate later. And indeed, it would be disastrous for democracy were each administration to misuse prosecution against its political enemies.
Yet given what we already know about the president’s finances and conduct in office, an investigation of the Trump administration is unlikely to be politicized in any meaningful sense. It is only a refusal to prosecute that could be politicized, in the sense of being guided by political calculation rather than a commitment to the rule of law. (That would apply doubly to the idea that a pardon could help ease Trump out of the White House without strife.)
More sophisticated observers might caution that even potentially justifiable prosecutions could have deleterious effects on U.S. politics and the country’s standing in the world. The prosecutions of Brazil’s most recent presidents—Lula, Dilma, and Michel Temer—did much to clear the way for the election of the country’s disastrous current president, Jair Bolsonaro. Similar concerns have been raised about other prosecutions elsewhere, like Ecuador’s conviction of former president Rafael Correa, which barred him from a return to politics.
But it’s strange to argue that democracy depends on not prosecuting those who commit crimes. In France, even a prime minister caught misusing public funds may now go to jail rather than retire to a villa. And although some have criticized South Korea for prosecuting its ex-presidents (over half of whom are now in prison), measures like the Varieties of Democracy index show that Seoul’s record on liberal democracy is stronger than that of the United States.
It should not be surprising that democracy and prosecutions of former officials can go together. That is, after all, the entire point of the rule of law. Holding officials to account forms a critical part of strengthening democratic institutions. And the ballot box is only one way to do that.
That is why Biden must not waver. If a former president has never been prosecuted in American history, that’s because the last time the country had a chance to do so it was denied that opportunity. Far from being bad for democracy, a sober, lengthy, and deliberative investigation would be good for establishing a record of the rot in the Trump administration. And it would be a major boost for liberal democracy and anti-corruption efforts by demonstrating that in mature democracies, officials face consequences.
Having a president who committed crimes is not unprecedented in American history. What would be unprecedented would be to end this long national nightmare by letting them face the same justice that any other American should.


foreignpolicy--2020-09-29--Trump’s Pick to Replace Ruth Bader Ginsburg Could Make the Supreme Court ‘America First’

Trump ’ s Pick to Replace Ruth Bader Ginsburg Could Make the Supreme Court ‘ America First ’ You can ’ t accuse him of dithering .
It took just eight days for U.S. President Donald Trump to nominate Seventh Circuit Judge Amy Coney Barrett to take the still-warm seat of the late justice Ruth Bader Ginsburg on the Supreme Court .
If the spectacle of a nomination battle being fought out during an election season proves one thing , it ’ s that the court is political .
In American legal politics , one issue trumps all others : @ @ @ @ @ @ @ that Barrett ’ s likely position on the 1973 case of Roe v Wade that established a woman ’ s right to an abortion was being analyzed even before she was nominated .
But abortion is only one of many pressing issues that ultimately end up before the court .
Another perennial controversy is the status of “ customary ” international law in U.S. jurisprudence .
For the people around the world who often find themselves subject to U.S. law while having no say in its formulation , the way the Supreme Court @ @ @ @ @ @ @ of life , death , and billions of dollars .
When most people think of international law , they have in mind the international treaties that countries sign with other nations .
But in the United States , international treaties ratified by Congress have the force of domestic law , meaning that statutory international law becomes U.S. law .
Up for grabs , however , is the unwritten common law of nations—the legal norms and standards widely practiced around the world but not laid down in binding treaties .
Often called “ customary @ @ @ @ @ @ @ for the courts to interpret—or ignore .
Ginsburg was a champion of customary international law and a proponent of citing international precedents in U.S. legal judgments .
Ginsburg was a champion of customary international law and a proponent of citing international precedents in U.S. legal judgments .
That made her , along with fellow justices Sonia Sotomayor and Stephen Breyer , one of the court ’ s three so-called transnationalists .
Opposing them were the four strict constructionists , Clarence Thomas , Samuel Alito , Neil Gorsuch , and Brett Kavanaugh , who @ @ @ @ @ @ @ global opinion .
The remaining two justices , Elena Kagan and Chief Justice John Roberts , are widely viewed as case-by-case pragmatists .
At the beginning of her career , Barrett clerked for Alito , and although clerks do not necessarily adopt the views of their mentors , Barrett ’ s views seem to be broadly aligned with Alito ’ s judicial thinking .
Serving for less than three years as an appeals court judge in Chicago , she has had little opportunity to issue judgments on international law .
But she has @ @ @ @ @ @ @ for U.S. jurisprudence in her academic writing as a law professor at the University of Notre Dame .
In at least one of those law review articles , she argues that for a judge to consider customary international law is at best superfluous , and at worst a dereliction of duty , since if international law accords with the will of Congress it is unnecessary to take it into account , while if it contradicts the will of Congress , it is the will of Congress that must prevail .
Ginsburg , by @ @ @ @ @ @ @ should actively engage with international legal opinion and international thought about the scope of the common law of nations , and that the United States had as much to learn as it had to teach when it came to understanding the law .
In a 2010 speech to the International Academy of Comparative Law , she reasoned that if “ U.S .
experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality , so too can we learn from others now engaged in measuring @ @ @ @ @ @ @ instruments of government and charters securing basic rights.
” One area where Ginsburg thought it particularly important to take account of the views of what she termed “ humankind ” was capital punishment .
She was a staunch opponent of the death penalty , and although she never argued that it was unconstitutional , she did refer to international opinion in arguing that it violated international norms .
While her views on capital punishment were deeply humane , her references to humankind were inevitably selective .
After all , there is hardly a @ @ @ @ @ @ @ The majority of countries don ’ t use it , but most of the world ’ s population live in countries that do .
The world ’ s five most populous countries all have the death penalty : China , India , the United States , Indonesia , and Pakistan .
A quick look at the death penalty map shows that the United States is not so much an outlier among democratic countries or even an outlier among rich countries in maintaining the death penalty , but an outlier among European-heritage countries .
@ @ @ @ @ @ @ judicial system will be the poorer … if we do not both share our experience with , and learn from , legal systems with values and a commitment to democracy similar to our own , ” citing Canada , South Africa , Germany , and the European Court of Human Rights .
But arguably it is either cherry-picking or plain Eurocentrism not to seek to learn from Japan , Taiwan , and India as well .
International law takes a dim view of the extraterritorial reach of any one country , no matter @ @ @ @ @ @ @ ’ s approach to international opinion—and the strength of Barrett ’ s—arises from the fact that the world is a diverse place , and what was once the law of nations was really only ever the law of Europe .
Whereas Ginsburg stressed the commitment of America ’ s founding generation to European legal norms , Barrett stresses the fact that they only did so until the United States ’ own statute laws began to accumulate .
For Barrett , international opinion is useful for understanding unwritten common law practices , but it @ @ @ @ @ @ @ statute and constitutional law .
America ’ s engagement with customary international law isn ’ t all about respect for the world ’ s opinions ; it cuts both ways .
For example , the 1789 Alien Tort Claims Act , also known as Alien Tort Statute , has in recent decades become an invaluable tool for human rights activists seeking restitution in U.S. courts for atrocities committed by foreigners in foreign countries .
The Supreme Court also decides cases relating to the global scope of U.S. government surveillance and the power of @ @ @ @ @ @ @ And of course we just witnessed how a U.S. federal judge could intervene in foreign policy by halting the ban on TikTok .
All of these potentially violate customary international law , which most interpreters believe takes a dim view of the extraterritorial reach of the laws of any one country , no matter how powerful .
And in all these examples , it is unclear whether ( and which ) international actors would prefer a transnationalist jurist like Ginsburg or a strict constructionist like Barrett .
The only certain thing is that @ @ @ @ @ @ @ one can be sure how any Supreme Court justice will vote on any particular case .
Barrett is no exception .
Her appeals court tenure has been short , and ( notwithstanding White House claims to the contrary ) her 15-year academic career was unremarkable .
Court watchers who want to understand her legal reasoning will just have to watch—and wait .
And when it comes to the Supreme Court ’ s treatment of customary international law , the world will have to wait with them .

You can’t accuse him of dithering. It took just eight days for U.S. President Donald Trump to nominate Seventh Circuit Judge Amy Coney Barrett to take the still-warm seat of the late justice Ruth Bader Ginsburg on the Supreme Court. If the spectacle of a nomination battle being fought out during an election season proves one thing, it’s that the court is political.
You can’t accuse him of dithering. It took just eight days for U.S. President Donald Trump to nominate Seventh Circuit Judge Amy Coney Barrett to take the still-warm seat of the late justice Ruth Bader Ginsburg on the Supreme Court. If the spectacle of a nomination battle being fought out during an election season proves one thing, it’s that the court is political.
In American legal politics, one issue trumps all others: abortion. Little surprise, then, that Barrett’s likely position on the 1973 case of Roe v Wade that established a woman’s right to an abortion was being analyzed even before she was nominated. But abortion is only one of many pressing issues that ultimately end up before the court. Another perennial controversy is the status of “customary” international law in U.S. jurisprudence. For the people around the world who often find themselves subject to U.S. law while having no say in its formulation, the way the Supreme Court treats international law can be a matter of life, death, and billions of dollars.
When most people think of international law, they have in mind the international treaties that countries sign with other nations. But in the United States, international treaties ratified by Congress have the force of domestic law, meaning that statutory international law becomes U.S. law. Up for grabs, however, is the unwritten common law of nations—the legal norms and standards widely practiced around the world but not laid down in binding treaties. Often called “customary international law,” its meaning is for the courts to interpret—or ignore.
Ginsburg was a champion of customary international law and a proponent of citing international precedents in U.S. legal judgments.
Ginsburg was a champion of customary international law and a proponent of citing international precedents in U.S. legal judgments. That made her, along with fellow justices Sonia Sotomayor and Stephen Breyer, one of the court’s three so-called transnationalists. Opposing them were the four strict constructionists, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, who tend to consider U.S. law impervious to global opinion. The remaining two justices, Elena Kagan and Chief Justice John Roberts, are widely viewed as case-by-case pragmatists.
At the beginning of her career, Barrett clerked for former Justice Antonin Scalia, who strictly rejected any relevance of foreign law or opinion to U.S. jurisprudence. Although clerks do not necessarily adopt the views of their mentors, Barrett’s views seem to be broadly aligned with Scalia’s judicial thinking. Serving for less than three years as an appeals court judge in Chicago, she has had little opportunity to issue judgments on international law. But she has touched on the relevance of international law for U.S. jurisprudence in her academic writing as a law professor at the University of Notre Dame. In at least one of those law review articles, she argues that for a judge to consider customary international law is at best superfluous, and at worst a dereliction of duty, since if international law accords with the will of Congress it is unnecessary to take it into account, while if it contradicts the will of Congress, it is the will of Congress that must prevail.
Ginsburg, by contrast, thought that the Supreme Court should actively engage with international legal opinion and international thought about the scope of the common law of nations, and that the United States had as much to learn as it had to teach when it came to understanding the law. In a 2010 speech to the International Academy of Comparative Law, she reasoned that if “U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measuring ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights.”
One area where Ginsburg thought it particularly important to take account of the views of what she termed “humankind” was capital punishment. She was a staunch opponent of the death penalty, and although she never argued that it was unconstitutional, she did refer to international opinion in arguing that it violated international norms. While her views on capital punishment were deeply humane, her references to humankind were inevitably selective. After all, there is hardly a global consensus on the death penalty. The majority of countries don’t use it, but most of the world’s population live in countries that do. The world’s five most populous countries all have the death penalty: China, India, the United States, Indonesia, and Pakistan.
A quick look at the death penalty map shows that the United States is not so much an outlier among democratic countries or even an outlier among rich countries in maintaining the death penalty, but an outlier among European-heritage countries. Ginsburg urged that the “U.S. judicial system will be the poorer … if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own,” citing Canada, South Africa, Germany, and the European Court of Human Rights. But arguably it is either cherry-picking or plain Eurocentrism not to seek to learn from Japan, Taiwan, and India as well.
International law takes a dim view of the extraterritorial reach of any one country, no matter how powerful.
The weakness of Ginsburg’s approach to international opinion—and the strength of Barrett’s—arises from the fact that the world is a diverse place, and what was once the law of nations was really only ever the law of Europe. Whereas Ginsburg stressed the commitment of America’s founding generation to European legal norms, Barrett stresses the fact that they only did so until the United States’ own statute laws began to accumulate. For Barrett, international opinion is useful for understanding unwritten common law practices, but it is irrelevant to the interpretation of express statute and constitutional law.
America’s engagement with customary international law isn’t all about respect for the world’s opinions; it cuts both ways. For example, the 1789 Alien Tort Claims Act, also known as Alien Tort Statute, has in recent decades become an invaluable tool for human rights activists seeking restitution in U.S. courts for atrocities committed by foreigners in foreign countries. The Supreme Court also decides cases relating to the global scope of U.S. government surveillance and the power of the president to order targeted killings. And of course we just witnessed how a U.S. federal judge could intervene in foreign policy by halting the ban on TikTok. All of these potentially violate customary international law, which most interpreters believe takes a dim view of the extraterritorial reach of the laws of any one country, no matter how powerful.
And in all these examples, it is unclear whether (and which) international actors would prefer a transnationalist jurist like Ginsburg or a strict constructionist like Barrett. The only certain thing is that it’s complicated, and no one can be sure how any Supreme Court justice will vote on any particular case. Barrett is no exception. Her appeals court tenure has been short, and (notwithstanding White House claims to the contrary) her 15-year academic career was unremarkable. Court watchers who want to understand her legal reasoning will just have to watch—and wait. And when it comes to the Supreme Court’s treatment of customary international law, the world will have to wait with them.
Correction, Sept. 30, 2020: This article originally stated that Amy Coney Barrett clerked for Samuel Alito. She clerked for Antonin Scalia.


foreignpolicy--2020-09-29--American Leaders Sold a Dream of Changing China

After over 40 years of engagement , China has grown increasingly illiberal at home and assertive abroad .
Beijing ’ s deepening authoritarianism and aggressive nationalism have sparked a heated debate among policy analysts , former government officials , academics , and others about whether the United States got China wrong .
At the heart of this conversation lies the contentious question of whether the United States even sought to change China in the first place .
Defenders of engagement , many of whom built their own professional careers around the notion , claim that American politicians and officials never @ @ @ @ @ @ @ Republic of China into a liberal democracy or a close partner of the United States .
Some argue that “ the goal was to shape Chinese policy to align more with U.S. objectives ” in terms of “ a more open society , reduced overseas disruptive behavior , increasingly transparent business operations.
” Others suggest that the transformative framing of engagement was a rhetorical flourish , claiming that “ critiques often fail to distinguish between the way Washington publicly justifies its policies , by referring to values , and the way it actually @ @ @ @ @ @ @ first.
” These efforts to downplay the missionary impulse of engagement with China amount to historical gaslighting , an attempt to retcon the record to conceal the extent of failure .
During the Cold War , American leaders justified engagement with China as reining in China ’ s revolutionary foreign policy , establishing a stable bilateral relationship , and countering the Soviet threat—all reasonable goals .
But for the first 20 years of the post-Cold War era , American leaders , backed by their advisors and strategists , unambiguously sold engagement with China @ @ @ @ @ @ @ and responsible government in Beijing .
During these years , U.S. Presidents George H.W .
Bush , Bill Clinton , and George W. Bush consistently justified their approach to China using the “ prevailing liberal ideas about the linkages between trade , economic growth and democracy , and a faith in the presumed universality and irresistible power of the human desire for freedom.
” This line of argument began during George H.W .
Bush ’ s time in office .
Before the protests and crackdown of June 1989 , Bush , who had @ @ @ @ @ @ @ in Beijing in the mid-1970s , expressed a deep personal interest in China .
Several days into office , he was already stressing the “ strong , important strategic and commercial and cultural relationship that we have with the Chinese.
” Bush spoke of great potential for robust cooperation with Beijing , expressing hope for collaboration in a wide variety of areas , including conflict resolution , arms control , anti-trafficking , environmental issues , trade and investment , science and technology , and education .
Yet despite his earlier optimism , after @ @ @ @ @ @ @ 1989 , Bush had no choice but to adjust his rhetoric on China .
In a news conference that June 5 , he announced punitive measures and condemned the brutal crackdown , stating that “ the United States can not condone the violent attacks and can not ignore the consequences for our relationship with China.
” Even so , Bush also insisted that “ this is not the time for an emotional response , but for a reasoned , careful action that takes into account both our long-term interests and recognition of a @ @ @ @ @ @ @ strongly emphasized , “ I don ’ t want to see a total break in this relationship , and I will not encourage a total break in the relationship.
” Clearly , Bush was unwilling to fully cast aside his dream of working with China—a position that yielded years of tension between Bush and a more hard-line Congress .
Facing an intense post-Tiananmen backlash , Bush began justifying continued engagement with China on the basis of supporting democratization and liberalization .
At the same June 5 news conference , Bush argued , “ @ @ @ @ @ @ @ contacts have led , in essence , to this quest for more freedom.
” He then added that “ I think as people have commercial incentive , whether it ’ s in China or in other totalitarian systems , the move to democracy becomes more inexorable.
” Bush maintained this linkage throughout his presidency , later claiming that on issues such as human rights , arms control , and trade , “ we are making a difference in China by remaining engaged.
” In doing , Bush presented the American public with the @ @ @ @ @ @ @ toward China .
Despite going after Bush ’ s record on China during the 1992 presidential election , Bill Clinton ultimately doubled down on the language of transformation in office .
At first , Clinton attempted to pressure China to change .
During a major statement on U.S. policy toward China in May 1993 , Clinton derided Bush for hampering congressional efforts to place conditions on the renewal of “ our favorable trade rules toward China , so-called most-favored-nation status.
” He declared , “ it is time that a unified American policy @ @ @ @ @ @ @ the values of America , ” expressing a need for the United States to pressure China on human rights , proliferation , and trade reciprocity .
To this end , Clinton articulated a new ( and ill-fated ) policy toward China .
Clinton ’ s policy placed “ resolute insistence upon significant progress on human rights in China , ” binding the future renewal of the most-favored-nation status to “ whether China makes significant progress in improving its human rights record.
” Clinton justified this policy shift on the belief “ that China @ @ @ @ @ @ @ reform will be accompanied by greater political freedom.
” As Clinton put it , by “ supporting peaceful democratic and pro-market reform , ” the administration planned to “ cultivate these hopeful seeds of change in China.
” A year later in May 1994 , Clinton abandoned this approach , shifting to a policy of seeking change through engagement .
As other areas of the bilateral relationship grew in importance , Clinton announced his move to “ delink human rights from the annual extension of most-favored-nation trading status for China , ” arguing @ @ @ @ @ @ @ of the usefulness of that policy and it is time to take a new path toward the achievement of our constant objective.
” While articulating his new position on China , Clinton proposed : Thus began the second phase of Clinton ’ s policy toward and rhetoric on China , one that justified engagement not just in terms of promoting liberalization within China , but also fostering the growth of a “ responsible power ” on the world stage .
This new stance fed into Clinton ’ s campaign to get China into @ @ @ @ @ @ @ in him advocating for a “ constructive strategic partnership ” with China in 1997 .
Within this new framework , Clinton affirmed his support of engagement with China .
He sold this new era of cooperation to the public on the basis of promoting internal liberalization and because “ a stable , open , prosperous China that assumes its responsibilities for building a more peaceful world is clearly and profoundly in our interests.
” As with Clinton ’ s campaign efforts , George W. Bush initially struck a far more hawkish tone on @ @ @ @ @ @ @ campaign trail , he called for the United States to redefine China as a “ competitor ” and place greater emphasis on its Asian allies .
Once in office , Bush labeled China a “ strategic competitor.
” When speaking before Congress , administration officials called China “ a potential regional rival ” and advocated for Washington to “ be frank about our differences ” with China on such issues as Taiwan , human rights , and proliferation .
But even as the president sought to reorient the bilateral relationship toward competition , @ @ @ @ @ @ @ power of economic engagement with China .
In doing so , Bush mirrored Clinton ’ s moralistic rhetoric , painting trade as a wondrous tool for fostering a more liberal Beijing .
Speaking before the Los Angeles World Affairs Council in May 2001 , Bush declared “ When we open trade , we open minds .
We trade with China because trade is good policy for our economy , because trade is good policy for democracy , and because trade is good policy for our national security.
” 9/11 was the final blow @ @ @ @ @ @ @ strategic opponent .
A month after the attacks , during a press conference in Shanghai , the president pivoted to describing China as one of the United States ’ “ important partners ” in the “ global coalition against terror.
” Bush welcomed China ’ s accession into the World Trade Organization and called for a “ candid , constructive , and cooperative ” relationship with China .
Though Bush switched his focus from competition to cooperation , he continued to explain U.S. policy in terms of shaping China ’ s future .
@ @ @ @ @ @ @ , the president reiterated that “ economic freedom and political freedom will go hand in hand ” and that “ the advance of Chinese prosperity depends on China ’ s full integration into the rules and norms of international institutions.
” The administration eventually expanded and rebranded this stance on China ’ s role in the world , calling for Beijing to become a “ responsible stakeholder ” in 2005 .
As such , George W. Bush ultimately replicated the rhetoric and policies of Bill Clinton and George H.W .
Bush .
Each @ @ @ @ @ @ @ U.S policy toward China in remarkably similar terms , stressing that engagement could liberalize the government and shape its behavior .
Defenders of engagement may argue that George H.W .
Bush , Bill Clinton , and George W. Bush did not actually believe their own rhetoric on China , that their advisors and strategists held a more realistic view of U.S. goals , and that the idealist rhetoric existed only to sell engagement to the public .
There is little evidence to support such claims .
Moreover , the United States is a @ @ @ @ @ @ @ accountable to the public .
If three successive administrations knowingly misled the American public on U.S. policy toward China , that would amount to a significant betrayal of public trust .
Rather , in the optimistic days of the unipolar moment , American leaders believed in their ability to change China .
Even though American rhetoric shifted under President Barack Obama , who abandoned any pretense of changing China internally and instead emphasized cooperation with China on global issues , defenders of engagement can not sweep the early post-Cold War era under the @ @ @ @ @ @ @ American leaders sold engagement with Beijing as changing China .
This is not to say the United States should not have engaged China , but rather that Americans can not learn from the successes and failures of engagement if they blind themselves to the motivations behind two decades of U.S. policy toward China .

After over 40 years of engagement, China has grown increasingly illiberal at home and assertive abroad. Beijing’s deepening authoritarianism and aggressive nationalism have sparked a heated debate among policy analysts, former government officials, academics, and others about whether the United States got China wrong . At the heart of this conversation lies the contentious question of whether the United States even sought to change China in the first place.
After over 40 years of engagement, China has grown increasingly illiberal at home and assertive abroad. Beijing’s deepening authoritarianism and aggressive nationalism have sparked a heated debate among policy analysts, former government officials, academics, and others about whether the United States got China wrong. At the heart of this conversation lies the contentious question of whether the United States even sought to change China in the first place.
Defenders of engagement, many of whom built their own professional careers around the notion, claim that American politicians and officials never aimed to transform the People’s Republic of China into a liberal democracy or a close partner of the United States. Some argue that “the goal was to shape Chinese policy to align more with U.S. objectives” in terms of “a more open society, reduced overseas disruptive behavior, increasingly transparent business operations.” Others suggest that the transformative framing of engagement was a rhetorical flourish, claiming that “critiques often fail to distinguish between the way Washington publicly justifies its policies, by referring to values, and the way it actually formulates them, by putting national interests first.”
These efforts to downplay the missionary impulse of engagement with China amount to historical gaslighting, an attempt to retcon the record to conceal the extent of failure. During the Cold War, American leaders justified engagement with China as reining in China’s revolutionary foreign policy, establishing a stable bilateral relationship, and countering the Soviet threat—all reasonable goals. But for the first 20 years of the post-Cold War era, American leaders, backed by their advisors and strategists, unambiguously sold engagement with China on the basis of fostering a democratic and responsible government in Beijing. During these years, U.S. Presidents George H.W. Bush, Bill Clinton, and George W. Bush consistently justified their approach to China using the “prevailing liberal ideas about the linkages between trade, economic growth and democracy, and a faith in the presumed universality and irresistible power of the human desire for freedom.”
This line of argument began during George H.W. Bush’s time in office. Before the protests and crackdown of June 1989, Bush, who had been chief of the U.S. Liaison Office in Beijing in the mid-1970s, expressed a deep personal interest in China. Several days into office, he was already stressing the “strong, important strategic and commercial and cultural relationship that we have with the Chinese.” Bush spoke of great potential for robust cooperation with Beijing, expressing hope for collaboration in a wide variety of areas, including conflict resolution, arms control, anti-trafficking, environmental issues, trade and investment, science and technology, and education.
Yet despite his earlier optimism, after the bloody Tiananmen Square massacre of June 1989, Bush had no choice but to adjust his rhetoric on China. In a news conference that June 5, he announced punitive measures and condemned the brutal crackdown, stating that “the United States cannot condone the violent attacks and cannot ignore the consequences for our relationship with China.” Even so, Bush also insisted that “this is not the time for an emotional response, but for a reasoned, careful action that takes into account both our long-term interests and recognition of a complex internal situation in China.” He strongly emphasized, “I don’t want to see a total break in this relationship, and I will not encourage a total break in the relationship.” Clearly, Bush was unwilling to fully cast aside his dream of working with China—a position that yielded years of tension between Bush and a more hard-line Congress.
Facing an intense post-Tiananmen backlash, Bush began justifying continued engagement with China on the basis of supporting democratization and liberalization. At the same June 5 news conference, Bush argued, “I happen to believe that the commercial contacts have led, in essence, to this quest for more freedom.” He then added that “I think as people have commercial incentive, whether it’s in China or in other totalitarian systems, the move to democracy becomes more inexorable.” Bush maintained this linkage throughout his presidency, later claiming that on issues such as human rights, arms control, and trade, “we are making a difference in China by remaining engaged.” In doing, Bush presented the American public with the first comprehensive change-focused conceptualization of U.S. policy toward China.
Despite going after Bush’s record on China during the 1992 presidential election, Bill Clinton ultimately doubled down on the language of transformation in office. At first, Clinton attempted to pressure China to change. During a major statement on U.S. policy toward China in May 1993, Clinton derided Bush for hampering congressional efforts to place conditions on the renewal of “our favorable trade rules toward China, so-called most-favored-nation status.” He declared, “it is time that a unified American policy recognize both the value of China and the values of America,” expressing a need for the United States to pressure China on human rights, proliferation, and trade reciprocity.
To this end, Clinton articulated a new (and ill-fated) policy toward China. Clinton’s policy placed “resolute insistence upon significant progress on human rights in China,” binding the future renewal of the most-favored-nation status to “whether China makes significant progress in improving its human rights record.” Clinton justified this policy shift on the belief “that China’s process of development and economic reform will be accompanied by greater political freedom.” As Clinton put it, by “supporting peaceful democratic and pro-market reform,” the administration planned to “cultivate these hopeful seeds of change in China.”
A year later in May 1994, Clinton abandoned this approach, shifting to a policy of seeking change through engagement. As other areas of the bilateral relationship grew in importance, Clinton announced his move to “delink human rights from the annual extension of most-favored-nation trading status for China,” arguing that “we have reached the end of the usefulness of that policy and it is time to take a new path toward the achievement of our constant objective.” While articulating his new position on China, Clinton proposed:
I believe the question, therefore, is not whether we continue to support human rights in China but how we can best support human rights in China and advance our other very significant issues and interests. I believe we can do it by engaging the Chinese. … We will have that in an atmosphere which gives us the chance to see China evolve as a responsible power, ever growing not only economically but growing in political maturity so that human rights can be observed.
Thus began the second phase of Clinton’s policy toward and rhetoric on China, one that justified engagement not just in terms of promoting liberalization within China, but also fostering the growth of a “responsible power” on the world stage. This new stance fed into Clinton’s campaign to get China into the World Trade Organization and eventually resulted in him advocating for a “constructive strategic partnership” with China in 1997. Within this new framework, Clinton affirmed his support of engagement with China. He sold this new era of cooperation to the public on the basis of promoting internal liberalization and because “a stable, open, prosperous China that assumes its responsibilities for building a more peaceful world is clearly and profoundly in our interests.”
As with Clinton’s campaign efforts, George W. Bush initially struck a far more hawkish tone on China than his predecessor. On the campaign trail, he called for the United States to redefine China as a “competitor” and place greater emphasis on its Asian allies. Once in office, Bush labeled China a “strategic competitor.” When speaking before Congress, administration officials called China “a potential regional rival” and advocated for Washington to “be frank about our differences” with China on such issues as Taiwan, human rights, and proliferation.
But even as the president sought to reorient the bilateral relationship toward competition, Bush also doubled down on the transformative power of economic engagement with China. In doing so, Bush mirrored Clinton’s moralistic rhetoric, painting trade as a wondrous tool for fostering a more liberal Beijing. Speaking before the Los Angeles World Affairs Council in May 2001, Bush declared “When we open trade, we open minds. We trade with China because trade is good policy for our economy, because trade is good policy for democracy, and because trade is good policy for our national security.”
9/11 was the final blow to any idea of China as a strategic opponent. A month after the attacks, during a press conference in Shanghai, the president pivoted to describing China as one of the United States’ “important partners” in the “global coalition against terror.” Bush welcomed China’s accession into the World Trade Organization and called for a “candid, constructive, and cooperative” relationship with China.
Though Bush switched his focus from competition to cooperation, he continued to explain U.S. policy in terms of shaping China’s future. At the same press conference in Shanghai, the president reiterated that “economic freedom and political freedom will go hand in hand” and that “the advance of Chinese prosperity depends on China’s full integration into the rules and norms of international institutions.” The administration eventually expanded and rebranded this stance on China’s role in the world, calling for Beijing to become a “responsible stakeholder” in 2005.
As such, George W. Bush ultimately replicated the rhetoric and policies of Bill Clinton and George H.W. Bush. Each of these three presidents came to frame U.S policy toward China in remarkably similar terms, stressing that engagement could liberalize the government and shape its behavior.
Defenders of engagement may argue that George H.W. Bush, Bill Clinton, and George W. Bush did not actually believe their own rhetoric on China, that their advisors and strategists held a more realistic view of U.S. goals, and that the idealist rhetoric existed only to sell engagement to the public. There is little evidence to support such claims. Moreover, the United States is a democracy, and presidential administrations are ultimately accountable to the public. If three successive administrations knowingly misled the American public on U.S. policy toward China, that would amount to a significant betrayal of public trust.
Rather, in the optimistic days of the unipolar moment, American leaders believed in their ability to change China. Even though American rhetoric shifted under President Barack Obama, who abandoned any pretense of changing China internally and instead emphasized cooperation with China on global issues, defenders of engagement cannot sweep the early post-Cold War era under the rug. For nearly 20 years, American leaders sold engagement with Beijing as changing China. This is not to say the United States should not have engaged China, but rather that Americans cannot learn from the successes and failures of engagement if they blind themselves to the motivations behind two decades of U.S. policy toward China.


foreignpolicy--2020-09-29--The Latest Brexit Crisis May Save Ireland’s Shaky Coalition Government

Ministerial resignations , internal party squabbles , a global pandemic , and a major national scandal—no government would choose to face these obstacles at the beginning of its first term in office .
Yet this summer , that was the unfortunate fate of Ireland ’ s new coalition administration—the first ever to bring the rival parties of Fianna Fail and Fine Gael together , along with the Green Party .
For a time , it seemed as though one of the most remarkable and unconventional political alliances in Irish history would also be one of its most short-lived .
“ @ @ @ @ @ @ @ to say the least , ” said Mary C. Murphy , a senior lecturer in government and politics at University College Cork .
“ It ’ s all been quite unprecedented.
” Now , however , the return of an external threat—Brexit—may save the alliance from an untimely end .
On Sept. 9 , the British government abruptly sent Brexit talks into crisis by introducing new legislation that seeks to overturn key provisions of Britain ’ s withdrawal agreement with Brussels , including a pledge to establish what is effectively a customs border @ @ @ @ @ @ @ Britain .
By the British government ’ s own admission , its move breaks international law , and it could jeopardize any Brexit deal .
Since the legislation was announced , Ireland ’ s taoiseach , or prime minister , Micheal Martin , has been able to shrug off his profile as the leader of a disaster-prone administration and emerge as Ireland ’ s national champion .
In publicly criticizing U.K. Prime Minister Boris Johnson and calling on Britain to drop the legislation , Martin has given the Irish something to rally around @ @ @ @ @ @ @ be the taoiseach , ” the Irish Times political editor Pat Leahy told me .
“ It gives the government a platform to act like a government.
” “ We are at the cusp of the old system crumbling.
” Yet damage caused by Brexit may also be fatal for Ireland ’ s government in the long term , particularly if the United Kingdom finally leaves the European Union without a trade deal .
Meanwhile , underlying shifts in Irish politics—foregrounded by responses to recent scandals—continue to haunt the two main governing parties @ @ @ @ @ @ @ of the old system crumbling , ” said David Farrell , the head of University College Dublin ’ s School of Politics and International Relations .
“ What happens next is what we are all trying to figure out now.
” It was also extraordinary that they managed to pull the Green Party on board as the third coalition member .
The Green Party advocates environmental legislation anathema to many rural Fianna Fail and Fine Gael members , and it nearly didn ’ t join the coalition due to party infighting .
This @ @ @ @ @ @ @ major change in Irish politics : the electoral triumph in February ’ s general elections of Sinn Fein , the left-wing nationalist party that ’ s the former political wing of the paramilitary Provisional Irish Republican Army ( IRA ) .
Outvoting all three current coalition members to emerge as the largest party in Irish politics , Sinn Fein ’ s unexpected triumph highlighted a growing shift away from the platforms of Fianna Fail and Fine Gael .
Rather than old Civil War-era loyalties , Sinn Fein gave economic issues center stage—though it @ @ @ @ @ @ @ form a majority .
“ Sinn Fein played a good hand by highlighting problems in housing and health in particular , ” Farrell said .
“ Ireland ’ s hangover from the global economic crisis is still going , with people facing long hospital queues and financial losses .
Sinn Fein capitalized on all that.
” The election left neither Fianna Fail nor Fine Gael with enough seats to form a government , separately or in coalition , and the two parties were unwilling to join up with Sinn Fein .
So after @ @ @ @ @ @ @ coalition that would have enough seats to form a majority , the Green Party was pulled on board .
After taking office on June 27 , the new government rapidly ran into trouble .
Within a few weeks , Martin had sacked his first cabinet appointee , Agriculture Minister Barry Cowen , following an embarrassing drunk driving incident .
Several leading members of the Green Party then quit over their party ’ s decision to join the coalition , while others voted against government bills in the parliament .
Meanwhile , the COVID-19 @ @ @ @ @ @ @ the difficult task of bringing the country out of a successful lockdown , which had been managed by former Taoiseach Leo Varadkar of Fine Gael , whose government had remained in office after the election in February , until the new coalition was formed in June .
As the lockdown ended and the number of infections rose while confusing new rules and restrictions were instated , Martin ’ s stewardship of the crisis contrasted poorly with Varadkar ’ s .
Arguments between Martin and the more cautious Varadkar , who is now the @ @ @ @ @ @ @ publicity .
Then came what ’ s known as Golfgate .
On Aug. 19 , members of the parliament ’ s Golf Society had a gathering that broke the government ’ s own lockdown rules on the number of people allowed to meet .
In attendance were senators , party officials from Fine Gael and Fianna Fail , a Supreme Court judge , and Ireland ’ s representative on the European Commission , Phil Hogan .
“ It was symbolically immensely damaging , ” said Tom McDonnell , the co-director of the Nevin @ @ @ @ @ @ @ Many people have died , been isolated , endured so much .
Yet then they see the people who make the rules attending parties.
” A cull of senior politicians on this scale was unprecedented in modern Irish history—but so was the public ’ s response .
Hogan eventually resigned , along with Dara Calleary , the coalition ’ s second agriculture minister and Fianna Fail deputy leader , and Jerry Buttimer , the deputy speaker for the parliament ’ s upper house .
“ There was a sense that if they allowed @ @ @ @ @ @ @ with it , the government wouldn ’ t last long , ” McDonnell said .
A cull of senior politicians on this scale was unprecedented in modern Irish history—but so was the public ’ s response .
“ It ’ s difficult to remember a past parallel where there was such immediate outrage , ” said Leahy , the Irish Times editor .
“ It simply wasn ’ t possible for those involved to ride it out.
” The lower house of the parliament was recalled early from its summer break to debate @ @ @ @ @ @ @ media—social and otherwise—there was an enormous display of anger .
In a September opinion poll , only 10 percent of participants said they would give their first preference vote to Fianna Fail , Martin ’ s party—five points below the previous poll in May .
The severity of the public reaction , and the damage the scandal caused the establishment parties of Fianna Fail and Fine Gael , shows just how much Irish politics has been changing in recent years .
The strength of the public ’ s response also reveals that the @ @ @ @ @ @ @ edge .
The pandemic has already resulted in nearly 2,000 deaths in Ireland and may cause an 8.5 percent contraction of the Irish economy this year .
Brexit , meanwhile , may also lead to major economic disruption , especially if Britain leaves with no deal .
Irish beef , for example , may face a 50 percent hike in tariffs when exported to the United Kingdom—the industry ’ s largest export market .
No deal would also raise major concerns about the Northern Ireland peace process .
The foundation stone of this @ @ @ @ @ @ @ , allowed for an open border between Northern Ireland , which is part of the U.K. , and the Republic of Ireland , removing a source of tension between Irish nationalists and British unionists dating back to the 1920s .
If the United Kingdom leaves the EU without a deal , the border may become a hard frontier again .
This would be anathema to Irish nationalist groups—the more radical of which , such as the New IRA , have declared their intention to attack any new border posts .
A bad Brexit @ @ @ @ @ @ @ even further .
While the taoiseach has affirmed that there will be “ no return of a hard border ” between Ireland and Northern Ireland , it ’ s unclear how that could be ensured .
The coalition , for instance , might have to conduct customs checks on vehicles traveling from Northern Ireland into the EU single market of the Republic of Ireland .
“ There ’ s no right answer to that one , ” said Murphy , the lecturer at University College Cork , “ but it will expose political @ @ @ @ @ @ @ was , after all , the question of what to do about that border that first pitted Fianna Fail and Fine Gael against each other nearly a century ago .
“ [ The government ] will have to choose , ” Leahy said , “ between border checks and the single market , between the North and the EU.
” For Fianna Fail in particular , whose ancestors fought a bitter war against the imposition of the border , taking steps to implement border checks may be too much for many old party @ @ @ @ @ @ @ likely benefit from this , pulling members away from Fianna Fail .
And the ones who remain may find themselves wondering if it is not finally time to bury the Civil War hatchet and merge with their old rivals , Fine Gael .

Ministerial resignations, internal party squabbles, a global pandemic, and a major national scandal—no government would choose to face these obstacles at the beginning of its first term in office. Yet this summer, that was the unfortunate fate of Ireland’s new coalition administration—the first ever to bring the rival parties of Fianna Fail and Fine Gael together, along with the Green Party. For a time, it seemed as though one of the most remarkable and unconventional political alliances in Irish history would also be one of its most short-lived. “They had a very rocky start, to say the least,” said Mary C. Murphy, a senior lecturer in government and politics at University College Cork. “It’s all been quite unprecedented.”
Ministerial resignations, internal party squabbles, a global pandemic, and a major national scandal—no government would choose to face these obstacles at the beginning of its first term in office. Yet this summer, that was the unfortunate fate of Ireland’s new coalition administration—the first ever to bring the rival parties of Fianna Fail and Fine Gael together, along with the Green Party. For a time, it seemed as though one of the most remarkable and unconventional political alliances in Irish history would also be one of its most short-lived. “They had a very rocky start, to say the least,” said Mary C. Murphy, a senior lecturer in government and politics at University College Cork. “It’s all been quite unprecedented.”
Now, however, the return of an external threat—Brexit—may save the alliance from an untimely end. On Sept. 9, the British government abruptly sent Brexit talks into crisis by introducing new legislation that seeks to overturn key provisions of Britain’s withdrawal agreement with Brussels, including a pledge to establish what is effectively a customs border between Northern Ireland and the rest of Britain. By the British government’s own admission, its move breaks international law, and it could jeopardize any Brexit deal.
Since the legislation was announced, Ireland’s taoiseach, or prime minister, Micheal Martin, has been able to shrug off his profile as the leader of a disaster-prone administration and emerge as Ireland’s national champion. In publicly criticizing U.K. Prime Minister Boris Johnson and calling on Britain to drop the legislation, Martin has given the Irish something to rally around. “Brexit enables the taoiseach to be the taoiseach,” the Irish Times political editor Pat Leahy told me. “It gives the government a platform to act like a government.”“We are at the cusp of the old system crumbling.”
Yet damage caused by Brexit may also be fatal for Ireland’s government in the long term, particularly if the United Kingdom finally leaves the European Union without a trade deal. Meanwhile, underlying shifts in Irish politics—foregrounded by responses to recent scandals—continue to haunt the two main governing parties. “We are at the cusp of the old system crumbling,” said David Farrell, the head of University College Dublin’s School of Politics and International Relations. “What happens next is what we are all trying to figure out now.”
Before its potential demise, though, the old system has certainly thrown Ireland a curveball. “Perhaps you’d have to be Irish to understand just how remarkable the coming together of Fianna Fail and Fine Gael to form a coalition government was,” Murphy said. The two parties had fought against each other during the bloody Irish Civil War of 1922 to 1923 and remained bitterly opposed for decades afterward. And while both follow roughly similar center-right policies, this history has always precluded them from merging. Instead, they’ve alternated as the party in power for nearly a century.
It was also extraordinary that they managed to pull the Green Party on board as the third coalition member. The Green Party advocates environmental legislation anathema to many rural Fianna Fail and Fine Gael members, and it nearly didn’t join the coalition due to party infighting.
This unlikely coalition was made possible by a major change in Irish politics: the electoral triumph in February’s general elections of Sinn Fein, the left-wing nationalist party that’s the former political wing of the paramilitary Provisional Irish Republican Army (IRA). Outvoting all three current coalition members to emerge as the largest party in Irish politics, Sinn Fein’s unexpected triumph highlighted a growing shift away from the platforms of Fianna Fail and Fine Gael. Rather than old Civil War-era loyalties, Sinn Fein gave economic issues center stage—though it didn’t have enough seats to form a majority.
“Sinn Fein played a good hand by highlighting problems in housing and health in particular,” Farrell said. “Ireland’s hangover from the global economic crisis is still going, with people facing long hospital queues and financial losses. Sinn Fein capitalized on all that.”
The election left neither Fianna Fail nor Fine Gael with enough seats to form a government, separately or in coalition, and the two parties were unwilling to join up with Sinn Fein. So after four months of searching for a workable coalition that would have enough seats to form a majority, the Green Party was pulled on board.
After taking office on June 27, the new government rapidly ran into trouble. Within a few weeks, Martin had sacked his first cabinet appointee, Agriculture Minister Barry Cowen, following an embarrassing drunk driving incident. Several leading members of the Green Party then quit over their party’s decision to join the coalition, while others voted against government bills in the parliament.
Meanwhile, the COVID-19 crisis continued, and the government faced the difficult task of bringing the country out of a successful lockdown, which had been managed by former Taoiseach Leo Varadkar of Fine Gael, whose government had remained in office after the election in February, until the new coalition was formed in June. As the lockdown ended and the number of infections rose while confusing new rules and restrictions were instated, Martin’s stewardship of the crisis contrasted poorly with Varadkar’s. Arguments between Martin and the more cautious Varadkar, who is now the deputy taoiseach, also began to attract publicity.
Then came what’s known as Golfgate. On Aug. 19, members of the parliament’s Golf Society had a gathering that broke the government’s own lockdown rules on the number of people allowed to meet. In attendance were senators, party officials from Fine Gael and Fianna Fail, a Supreme Court judge, and Ireland’s representative on the European Commission, Phil Hogan. “It was symbolically immensely damaging,” said Tom McDonnell, the co-director of the Nevin Economic Research Institute in Dublin. “Many people have died, been isolated, endured so much. Yet then they see the people who make the rules attending parties.”A cull of senior politicians on this scale was unprecedented in modern Irish history—but so was the public’s response.
Hogan eventually resigned, along with Dara Calleary, the coalition’s second agriculture minister and Fianna Fail deputy leader, and Jerry Buttimer, the deputy speaker for the parliament’s upper house. “There was a sense that if they allowed those that were there to get away with it, the government wouldn’t last long,” McDonnell said.
A cull of senior politicians on this scale was unprecedented in modern Irish history—but so was the public’s response. “It’s difficult to remember a past parallel where there was such immediate outrage,” said Leahy, the Irish Times editor. “It simply wasn’t possible for those involved to ride it out.” The lower house of the parliament was recalled early from its summer break to debate the scandal, and all across Irish media—social and otherwise—there was an enormous display of anger. In a September opinion poll, only 10 percent of participants said they would give their first preference vote to Fianna Fail, Martin’s party—five points below the previous poll in May.
The severity of the public reaction, and the damage the scandal caused the establishment parties of Fianna Fail and Fine Gael, shows just how much Irish politics has been changing in recent years. The strength of the public’s response also reveals that the current coalition is now on a knife edge.
Surviving will not be easy, though, given the major challenges the coalition now faces. “We will be dealing with a double economic shock come winter,” McDonnell said, “when we’ll have the impact of both COVID-19 and Brexit.”
The pandemic has already resulted in nearly 2,000 deaths in Ireland and may cause an 8.5 percent contraction of the Irish economy this year. Brexit, meanwhile, may also lead to major economic disruption, especially if Britain leaves with no deal. Irish beef, for example, may face a 50 percent hike in tariffs when exported to the United Kingdom—the industry’s largest export market.
No deal would also raise major concerns about the Northern Ireland peace process. The foundation stone of this, the Good Friday Agreement of 1998, allowed for an open border between Northern Ireland, which is part of the U.K., and the Republic of Ireland, removing a source of tension between Irish nationalists and British unionists dating back to the 1920s. If the United Kingdom leaves the EU without a deal, the border may become a hard frontier again. This would be anathema to Irish nationalist groups—the more radical of which, such as the New IRA, have declared their intention to attack any new border posts.
A bad Brexit would almost certainly strain the new coalition even further. While the taoiseach has affirmed that there will be “no return of a hard border” between Ireland and Northern Ireland, it’s unclear how that could be ensured. The coalition, for instance, might have to conduct customs checks on vehicles traveling from Northern Ireland into the EU single market of the Republic of Ireland. “There’s no right answer to that one,” said Murphy, the lecturer at University College Cork, “but it will expose political division across the party system.”
It was, after all, the question of what to do about that border that first pitted Fianna Fail and Fine Gael against each other nearly a century ago. “[The government] will have to choose,” Leahy said, “between border checks and the single market, between the North and the EU.” For Fianna Fail in particular, whose ancestors fought a bitter war against the imposition of the border, taking steps to implement border checks may be too much for many old party stalwarts to swallow. Sinn Fein would likely benefit from this, pulling members away from Fianna Fail. And the ones who remain may find themselves wondering if it is not finally time to bury the Civil War hatchet and merge with their old rivals, Fine Gael.