theamericanconservative--2020-09-24--Bob Woodward: Stenographer of the Washington Establishment

`` Rage '' by Bob Woodward is offered for sale at a Barnes & Noble store on September 15 , 2020 in Chicago , Illinois .
The book , based on interviews that Woodward had with President Donald Trump , went on sale today .
( Photo by Scott Olson/Getty Images ) At the end of Trump ’ s first term , there are scores of people the president has humiliated , fired by tweet , and excoriated publicly after nasty and public fallings out , and all of them have stories to tell .
These angry , jilted rejects @ @ @ @ @ @ @ version of The Apprentice , have poured out their hearts , and their grievances , to Washington ’ s reporting angel , Bob Woodward .
From national security heavyweights , to former and current senators and White House officials , to generals famous for their silence , the veteran Watergate journalist transcribes them all in his latest book Rage .
While Trump wasn ’ t interviewed for Woodward ’ s first book on the administration , the president picked up the phone and spoke to Woodward a total of 18 times for this @ @ @ @ @ @ @ level of access , the book suffers from Woodward ’ s uncritical embrace of narratives spun by ex-officials transparently attempting to resuscitate their own reputations after Trump ’ s unceremonious defenestrations .
Rage is awash with an astonishing array of self-serving narratives : Deputy Attorney General Rod Rosenstein drafting the memo that justified firing FBI Director James Comey in May 2017 ; pious Marine Corps General Jim Mattis praying at Washington ’ s National Cathedral for the country ’ s fate under Trump ’ s command ; oil executive and erstwhile Secretary of @ @ @ @ @ @ @ his word and his fire-by-tweet ; Jared Kushner opining on his brilliant father-in-law ’ s “ great strength ” of unpredictability , to name a few .
The biggest problem with Woodward ’ s books on the Trump administration is that he serves up these self-interested perspectives with far too much credulity .
History is written by the winners , and everyone wants to be certain Woodward captures their version of events .
Throughout both Fear and Rage , the reader can never be certain who is talking , because Woodward serves up @ @ @ @ @ @ @ all the original reporting Woodward conducted is on “ deep background.
” Whomever it is that spoke to Woodward wasn ’ t willing to publicly put their names to what they told him .
But it ’ s not too difficult to guess who his sources are , because in their own telling , they are the heroes .
And who , other than the people present in the room themselves , could tell Woodward the thoughts of central players or word for word what happened at private White House meetings , or @ @ @ @ @ @ @ In Fear , a predictable bevy of former White House officials like Steve Bannon , Gary Cohn , Rob Porter , H.R .
McMaster , John Kelly and Chris Christie tell Woodward how lunatic , imbecilic , or angry Trump is , and how they personally stood between the president and disaster .
In Rage , Woodward has some new sources , and new heroes .
In this passage from the Epilogue of Rage , see if you can guess who they are : It ’ s Mattis , Tillerson and former director @ @ @ @ @ @ @ same people whom Woodward has heavily relied on for his Rage narrative .
In one particularly striking scene , Woodward writes that Mattis told Coats , “ There may come a time when we have to take collective action ” since Trump is “ dangerous .
He ’ s unfit.
” It ’ s not clear what sort of action Mattis is referring to .
After all , Mattis famously declined to dish any dirt on his former boss after resigning .
Mattis said , “ if you leave an administration , you @ @ @ @ @ @ @ when the time ’ s right to speak out about policy or strategy , I ’ ll speak out.
” Mattis resigned in December 2018 after disagreeing with Trump on withdrawing troops from Syria , something the president had promised to do many times during the 2016 presidential campaign .
As recently as June 2020 , Mattis said he had just come to the realization that Trump was a threat to the Constitutionas a result of Trump ’ s decision to deploy soldiers to quell the George Floyd protests in Washington , D.C @ @ @ @ @ @ @ account , in which Mattis calls Trump “ dangerous ” and “ unfit ” in 2019 , can ’ t be true .
According to Woodward , Mattis disagreed with Trump on policy : Trump made “ a terrible decision ” on Syria ; he “ didn ’ t agree ” with Mattis and crossed his “ red line.
” “ I was often trying to impose reason over impulse .
And you see where I wasn ’ t able to , because the tweets would get out there , ” Mattis said @ @ @ @ @ @ @ s attitude towards allies “ indefensible.
” “ It was jingoism .
It was a misguided form of nationalism .
It was not patriotism.
” When Mattis resigned , he reportedly told Trump , “ You ’ re going to have to get the next secretary of defense to lose to ISIS .
I ’ m not going to do it.
” The retired Marine Corps general tells Woodward he ’ s “ buried too many boys ” to risk Trump escalating violence in the Middle East .
Trump is the first president @ @ @ @ @ @ @ war or brought the U.S. into a new armed conflict in over 39 years .
Yet Woodward doesn ’ t press Mattis on his conclusion that Trump is “ dangerous , ” “ unfit , ” and going to get boys killed .
In another chapter of Rage , Woodward writes uncritically that Tillerson and Mattis “ had stopped or slowed some of Trump ’ s intentions in Afghanistan and South Korea , but their ambitious goal of directing foreign policy had largely failed.
” In another chapter , Tillerson is unceremoniously fired @ @ @ @ @ @ @ told why he was fired .
The president did not give him a reason.
” Maybe Tillerson was axed because he was , on his own admission , obstructing the president ’ s wishes on foreign policy ?
None of these people were forced to work for the Trump administration .
But by doing so , one would presume they all agreed to carry out Trump ’ s policies , not surreptitiously work to sabotage his agenda behind his back .
They also all had the option of resigning and speaking out publicly @ @ @ @ @ @ @ saw were .
But that ’ s not what they did .
They talked to Woodward , anonymously , and in his telling , people like Mattis and Tillerson are the “ adults in the room ” —even when they behave appallingly , openly flouting Trump ’ s policy goals , Woodward doesn ’ t seriously question their accounts .
Consider this scene Woodward describes : Gary Cohn , then-chief White House economic adviser , prevented President Trump from withdrawing from a trade agreement with South Korea by simply removing a letter announcing @ @ @ @ @ @ @ Trump reportedly never noticed the letter was missing .
In conversations with former White House adviser Rob Porter , Cohn threatened to reprise his tactic and remove another letter in order to prevent Trump from leaving the North American Free Trade Agreement ( NAFTA . )
“ I can stop this .
I ’ ll just take the paper off his desk , ” Cohn tells Porter .
It is shocking that Cohn felt empowered to literally take options off the table of the duly-elected president of the United States ; and more @ @ @ @ @ @ @ putting any pressure on Cohn as to the story ’ s veracity or the narrator ’ s chutzpah .
While there ’ s an endless parade of self-serving accounts from disgruntled former staff in both books , there ’ s nothing about the deal President Trump helped facilitate between Israeli Prime Minister Benjamin Netanyahu and the foreign ministers of the United Arab Emirates and Bahrain .
While the deal is only the third Arab-Israeli peace deal negotiated since Israel ’ s declaration of independence in 1948 , and the first time a diplomatic @ @ @ @ @ @ @ a Gulf Arab country , it doesn ’ t merit a single word in the forty six chapters of Rage .
In the epilogue , Woodward abandons journalistic impartiality and weighs in on his opinion of Trump : he ’ s “ the wrong man for the job ” of president .
But Woodward need not have written this for the reader to know his conclusion .
Napoleon once said that history is “ an agreed upon fable.
” Through his unquestioning use of self-serving sources , Woodward allows Rage to be nothing @ @ @ @ @ @ @ the Washington establishment .

At the end of Trump’s first term, there are scores of people the president has humiliated, fired by tweet, and excoriated publicly after nasty and public fallings out, and all of them have stories to tell. These angry, jilted rejects from the Trump administration, the presidential version of The Apprentice, have poured out their hearts, and their grievances, to Washington’s reporting angel, Bob Woodward. From national security heavyweights, to former and current senators and White House officials, to generals famous for their silence, the veteran Watergate journalist transcribes them all in his latest book Rage.
While Trump wasn’t interviewed for Woodward’s first book on the administration, the president picked up the phone and spoke to Woodward a total of 18 times for this latest offering. Yet even with that level of access, the book suffers from Woodward’s uncritical embrace of narratives spun by ex-officials transparently attempting to resuscitate their own reputations after Trump’s unceremonious defenestrations.
Rage is awash with an astonishing array of self-serving narratives: Deputy Attorney General Rod Rosenstein drafting the memo that justified firing FBI Director James Comey in May 2017; pious Marine Corps General Jim Mattis praying at Washington’s National Cathedral for the country’s fate under Trump’s command; oil executive and erstwhile Secretary of State Rex Tillerson bemoaning Trump not keeping his word and his fire-by-tweet; Jared Kushner opining on his brilliant father-in-law’s “great strength” of unpredictability, to name a few.
The biggest problem with Woodward’s books on the Trump administration is that he serves up these self-interested perspectives with far too much credulity. History is written by the winners, and everyone wants to be certain Woodward captures their version of events. Throughout both Fear and Rage, the reader can never be certain who is talking, because Woodward serves up his narrative in omniscient voice. Almost all the original reporting Woodward conducted is on “deep background.” Whomever it is that spoke to Woodward wasn’t willing to publicly put their names to what they told him.
But it’s not too difficult to guess who his sources are, because in their own telling, they are the heroes. And who, other than the people present in the room themselves, could tell Woodward the thoughts of central players or word for word what happened at private White House meetings, or on the golf course with Trump?
In Fear, a predictable bevy of former White House officials like Steve Bannon, Gary Cohn, Rob Porter, H.R. McMaster, John Kelly and Chris Christie tell Woodward how lunatic, imbecilic, or angry Trump is, and how they personally stood between the president and disaster.
In Rage, Woodward has some new sources, and new heroes. In this passage from the Epilogue of Rage, see if you can guess who they are:
Mattis, Tillerson and Coats are all conservatives or apolitical people who wanted to help him and the country. Imperfect men who answered the call to public service. They were not the deep state. Yet each departed with cruel words from their leader. They concluded that Trump was an unstable threat to their country. Think about that for a moment: The top national security leaders thought the president of the United States was a danger to the country.
It’s Mattis, Tillerson and former director of national intelligence Dan Coats—coincidentally the very same people whom Woodward has heavily relied on for his Rage narrative.
In one particularly striking scene, Woodward writes that Mattis told Coats, “There may come a time when we have to take collective action” since Trump is “dangerous. He’s unfit.”
It’s not clear what sort of action Mattis is referring to. After all, Mattis famously declined to dish any dirt on his former boss after resigning. Mattis said, “if you leave an administration, you owe some silence,” and “when the time’s right to speak out about policy or strategy, I’ll speak out.”
Mattis resigned in December 2018 after disagreeing with Trump on withdrawing troops from Syria, something the president had promised to do many times during the 2016 presidential campaign. As recently as June 2020, Mattis said he had just come to the realization that Trump was a threat to the Constitution as a result of Trump’s decision to deploy soldiers to quell the George Floyd protests in Washington, D.C. This means that Woodward’s account, in which Mattis calls Trump “dangerous” and “unfit” in 2019, can’t be true.
According to Woodward, Mattis disagreed with Trump on policy: Trump made “a terrible decision” on Syria; he “didn’t agree” with Mattis and crossed his “red line.”
“I was often trying to impose reason over impulse. And you see where I wasn’t able to, because the tweets would get out there,” Mattis said of Trump. He calls Trump’s attitude towards allies “indefensible.”
“It was jingoism. It was a misguided form of nationalism. It was not patriotism.”
When Mattis resigned, he reportedly told Trump, “You’re going to have to get the next secretary of defense to lose to ISIS. I’m not going to do it.”
The retired Marine Corps general tells Woodward he’s “buried too many boys” to risk Trump escalating violence in the Middle East. Trump is the first president that hasn’t either started a war or brought the U.S. into a new armed conflict in over 39 years. Yet Woodward doesn’t press Mattis on his conclusion that Trump is “dangerous,” “unfit,” and going to get boys killed.
In another chapter of Rage, Woodward writes uncritically that Tillerson and Mattis “had stopped or slowed some of Trump’s intentions in Afghanistan and South Korea, but their ambitious goal of directing foreign policy had largely failed.”
In another chapter, Tillerson is unceremoniously fired via tweet. Tillerson “was never told why he was fired. The president did not give him a reason.”
Maybe Tillerson was axed because he was, on his own admission, obstructing the president’s wishes on foreign policy?
None of these people were forced to work for the Trump administration. But by doing so, one would presume they all agreed to carry out Trump’s policies, not surreptitiously work to sabotage his agenda behind his back. They also all had the option of resigning and speaking out publicly about what they believed the dangers they saw were.
But that’s not what they did. They talked to Woodward, anonymously, and in his telling, people like Mattis and Tillerson are the “adults in the room”—even when they behave appallingly, openly flouting Trump’s policy goals, Woodward doesn’t seriously question their accounts.
Consider this scene Woodward describes: Gary Cohn, then-chief White House economic adviser, prevented President Trump from withdrawing from a trade agreement with South Korea by simply removing a letter announcing the withdrawal from the Resolute desk. Trump reportedly never noticed the letter was missing.
In conversations with former White House adviser Rob Porter, Cohn threatened to reprise his tactic and remove another letter in order to prevent Trump from leaving the North American Free Trade Agreement (NAFTA.)
“I can stop this. I’ll just take the paper off his desk,” Cohn tells Porter.
It is shocking that Cohn felt empowered to literally take options off the table of the duly-elected president of the United States; and more shocking still, Woodward recounts this without putting any pressure on Cohn as to the story’s veracity or the narrator’s chutzpah.
While there’s an endless parade of self-serving accounts from disgruntled former staff in both books, there’s nothing about the deal President Trump helped facilitate between Israeli Prime Minister Benjamin Netanyahu and the foreign ministers of the United Arab Emirates and Bahrain. While the deal is only the third Arab-Israeli peace deal negotiated since Israel’s declaration of independence in 1948, and the first time a diplomatic relationship has been established between Israel and a Gulf Arab country, it doesn’t merit a single word in the forty six chapters of Rage.
In the epilogue, Woodward abandons journalistic impartiality and weighs in on his opinion of Trump: he’s “the wrong man for the job” of president. But Woodward need not have written this for the reader to know his conclusion. Napoleon once said that history is “an agreed upon fable.” Through his unquestioning use of self-serving sources, Woodward allows Rage to be nothing more than a shockingly unabashed stenography of the Washington establishment.


theamericanconservative--2020-09-26--Meet the Russian Oligarch Who Helped Drive Russiagate

Russian businessman Mikhail Khodorkovsky attends a photocall for the film `` Citizen K '' on August 31 , 2019 presented out of competition during the 76th Venice Film Festival at Venice Lido .
( ALBERTO PIZZOLI/AFP via Getty Images ) Since 2016 , the specter of “ Russian interference ” has been an idée fixe of the Washington political establishment and its media allies .
Between the Mueller investigation , the Senate Intelligence Committee report , and the House impeachment saga , the long procession of Kremlin-related scandals collectively known as “ Russiagate ” have occupied a vast chunk of @ @ @ @ @ @ @ we were told by our politicians and journalists that American society is infested by swarms of Russian intelligence assets working tirelessly to corrupt our institutions , poison us against one another , and destroy our way of life .
These same politicians and journalists insisted that only they , in their great wisdom and foresight , could save us from the invisible Russian menace .
From calling Senator Mitchell McConnell a “ Russian asset ” to cynically promoting the unverified , and now debunked , Steele Dossier , our intrepid investigators have left @ @ @ @ @ @ @ to expose the Kremlin ’ s malign influence .
The many failures and embarrassments of Russiagate are well-catalogued .
There is , however , a particular dimension of the Russiagate saga that has long been overlooked—namely , the shocking extent to which these narratives have been propelled and amplified with the help of powerful Russians who have been permitted , if not invited , to meddle in American politics .
Mikhail Borisovich Khodorkovsky was a Communist Party functionary-turned-businessman who amassed a fortune during Russia ’ s haphazard privatization drive in the aftermath of @ @ @ @ @ @ @ banking scheme that involved loaning the bankrupt Russian government money that he knew it could never repay , Khodorkovsky seized a controlling share in oil and gas producer Yukos and became one of Russia ’ s most powerful new oligarchs .
Questions abound concerning the legality and morality of Khodorkovsky ’ s business dealings , some of which have been characterized by Russia experts as , at the very least , obscenely unethical .
Described in a New York Timesprofile as radiating “ the unlikely allure of a muscular technocrat , ” Khodorkovsky @ @ @ @ @ @ @ placed him on a collision course with Vladimir Putin ’ s early 2000s efforts to curb the influence of Russia ’ s new oligarch class .
The two clashed in a 2003 power struggle over Russia ’ s political direction , and Khodorkovsky lost .
He was subsequently arrested , charged with a bouquet of corporate white-collar crimes as part of a 662-page guilty verdict , and imprisoned for several years .
His sentence was later extended through 2017 , but , following an international pressure campaign that included personal appeals from former @ @ @ @ @ @ @ and released him in December 2013 .
From his exile in London , the Russian businessman wasted little time tapping into his considerable financial resources to begin financing opposition movements within Russia and across the Russian diaspora .
The Kremlin responded in 2015 by reopening a 1998 murder probe , formally charging Khodorkovsky with facilitating the killing of Siberian mayor Vladimir Petukhov .
There is no need to dwell further on Khodorkovsky ’ s biography , except to underscore exactly who he is : an exiled Russian oligarch with an active stake in @ @ @ @ @ @ @ , arguably the world ’ s leading benefactor of anti-Kremlin efforts .
But his operations extend far beyond Russia ’ s borders—in fact , he is deeply invested in lobbying foreign governments to adopt a hardline stance against the Kremlin .
Beginning with his Open Russia Foundation , Khodorkovsky established a growing list of proxy groups—among them , think tanks , news outlets , and NGO ’ s—to marshal Western support for regime change in Russia .
Then came the 2016 election .
In the months following Donald Trump ’ s blowout November @ @ @ @ @ @ @ narrative began to take shape .
Trump , posited the shellshocked Democrats and their media allies , had wittingly or unwittingly colluded with Putin ’ s Russia to rig the election in his favor .
For the first time since the Soviet collapse , “ Russia ” surged to the forefront of American political discourse ; “ Russian meddling ” became a household term in U.S. politics .
Special Counsel Robert Mueller was handed a wide mandate to investigate Trump and the Trump campaign for Russian collusion and any other crimes that might @ @ @ @ @ @ @ publications raced to indulge in Manchurian Candidate-inspired fantasies .
Donald Trump did not merely accept Russian help , claimed a sizable subset of activist journalists , Moscow had been grooming him since the 1980s as an intelligence asset who would one day run for president .
In the years of chaos and confusion that followed , Khodorkovsky saw a golden opportunity : more than ever , the American political landscape was ripe to be shaped in an anti-Kremlin direction .
Without delay , he mobilized his vast network of assets to propagate and @ @ @ @ @ @ @ Center , a project devoted to tracking “ the criminal activity of various people associated with the Kremlin.
” Just as the Trump Tower meeting scandal was roiling the news cycle , the Dossier Center published a batch of emails claiming to show that Natalia Veselnitskaya—the Moscow lawyer who secured a meeting with Trump Jr. in 2016 on the pretense of having presidential campaign dirt on Hillary Clinton—was more closely tied to the Kremlin than she previously let on .
Eager to add fuel to media speculation that Trump is somehow compromised by @ @ @ @ @ @ @ out to NBC News with emails allegedly showing that a top Trump donor offered to brief a Russian businessman on the Trump campaign .
In the following year , the Center published documents repeating the popular Russiagate talking point that Russian intelligence services are plotting to stoke racial violence on American streets .
The Dossier Center is only the tip of a sophisticated influence operation , helmed by an interconnected web of think tanks working to shape U.S. foreign policy .
There is the previously-mentioned Open Russia Foundation , the umbrella organization used @ @ @ @ @ @ @ numerous media , education , and activism projects .
The Institute of Modern Russia ( IMR ) , nominally headed by Khodorkovsky ’ s son Pavel , comprises one part of his reach in the Washington D.C. think tank orbit .
Open Russia is also associated with the D.C.-based think tank Free Russia Foundation , through their shared work with Russian opposition movement “ Living Politics ” ( Zhivaya Politika ) and close professional cooperation .
These groups are linked by a revolving door of staffers who are regularly shuffled between the three @ @ @ @ @ @ @ , for instance , Vladimir Vladimirovich Kara-Murza , a prominent Russian opposition figure and Khodorkovsky associate who serves as vice-chairman of Open Russia , senior advisor to IMR , and vice president of Free Russia .
There is a strong research continuity between these groups , partly because they share an overlapping pool of authors .
A typical example is journalist Michael Weiss , who was a research fellow at IMR before becoming “ director of special investigations ” for Free Russia .
These think tanks have waded knee-deep into Russiagate .
Most @ @ @ @ @ @ @ report , “ Kill The Messenger , ” framed Trump as a “ populist ” who “ routinely threatens journalists and rails against so-called ‘ fake news ’ .
” The report went on to chide the Daily Caller for publishing an op-ed by Russian oligarch Oleg Deripaska—admittedly a somewhat curious accusation coming from a think tank that aligns with a Russian oligarch .
Again missing the irony of the situation , the report concluded that “ it remains ludicrous that Americans—American organizations , and American groups—can not only continue their close relationships @ @ @ @ @ @ @ they can continue to host and provide platforms for such figures.
” Got that ?
Foreign meddling from Russian oligarchs is bad , unless that Russian oligarch is Mikhail Khodorkovsky and unless that meddling happens to be politically convenient to the Russiagate narrative .
“ Ludicrous , ” indeed .
On select occasions , Khodorkovsky emerges from the background to express his views directly .
In 2018 , his personal news blog covered the Trump-Putin Helsinki Summit with the following headline : “ As Trump Gives Way To Putin , The World Is @ @ @ @ @ @ @ Trump as “ an pariah of human rights activists , ” and charged him with a lurid tableau of “ failures ” conveying Khodorkovsky ’ s bitter disappointment that Trump did not confront Putin with sufficient hostility .
Khodorkovsky , unlike the Americans who work for his many proxies and front groups , has no real stake or apparent interest in the future of American democracy .
He is , instead , cynically exploiting a constitutional crisis in the U.S. in order to foment regime change in Russia .
Even more shockingly , @ @ @ @ @ @ @ enthusiastic approval of the very same political establishment that has insisted for the past six years that foreign meddling—particularly of the Russian variety—poses a mortal threat on the same level as an act of war .
Of Russiagate ’ s many paradoxes , the Khodorkovsky case is perhaps the most revealing .
What was sold to us as a noble crusade to purge ourselves of malign foreign influence was , in large part , little more than a bid for power and control by a revanchist elite that blithely courts foreign help when @ @ @ @ @ @ @ on defense and international relations issues .
He is also a PhD student in History at American University .

Since 2016, the specter of “Russian interference” has been an idée fixe of the Washington political establishment and its media allies. Between the Mueller investigation, the Senate Intelligence Committee report, and the House impeachment saga, the long procession of Kremlin-related scandals collectively known as “Russiagate” have occupied a vast chunk of American political life.
For years, we were told by our politicians and journalists that American society is infested by swarms of Russian intelligence assets working tirelessly to corrupt our institutions, poison us against one another, and destroy our way of life. These same politicians and journalists insisted that only they, in their great wisdom and foresight, could save us from the invisible Russian menace. From calling Senator Mitchell McConnell a “Russian asset” to cynically promoting the unverified, and now debunked, Steele Dossier, our intrepid investigators have left no stone unturned in their relentless campaign to expose the Kremlin’s malign influence.
The many failures and embarrassments of Russiagate are well-catalogued. There is, however, a particular dimension of the Russiagate saga that has long been overlooked—namely, the shocking extent to which these narratives have been propelled and amplified with the help of powerful Russians who have been permitted, if not invited, to meddle in American politics.
Mikhail Borisovich Khodorkovsky was a Communist Party functionary-turned-businessman who amassed a fortune during Russia’s haphazard privatization drive in the aftermath of the Soviet collapse. Through an elaborate banking scheme that involved loaning the bankrupt Russian government money that he knew it could never repay, Khodorkovsky seized a controlling share in oil and gas producer Yukos and became one of Russia’s most powerful new oligarchs. Questions abound concerning the legality and morality of Khodorkovsky’s business dealings, some of which have been characterized by Russia experts as, at the very least, obscenely unethical. Described in a New York Times profile as radiating “the unlikely allure of a muscular technocrat,” Khodorkovsky developed a growing appetite for politics that placed him on a collision course with Vladimir Putin’s early 2000s efforts to curb the influence of Russia’s new oligarch class.
The two clashed in a 2003 power struggle over Russia’s political direction, and Khodorkovsky lost. He was subsequently arrested, charged with a bouquet of corporate white-collar crimes as part of a 662-page guilty verdict, and imprisoned for several years. His sentence was later extended through 2017, but, following an international pressure campaign that included personal appeals from former president Barack Obama, the Kremlin pardoned and released him in December 2013. From his exile in London, the Russian businessman wasted little time tapping into his considerable financial resources to begin financing opposition movements within Russia and across the Russian diaspora. The Kremlin responded in 2015 by reopening a 1998 murder probe, formally charging Khodorkovsky with facilitating the killing of Siberian mayor Vladimir Petukhov.
There is no need to dwell further on Khodorkovsky’s biography, except to underscore exactly who he is: an exiled Russian oligarch with an active stake in Russian politics. Khodorkovsky is, today, arguably the world’s leading benefactor of anti-Kremlin efforts. But his operations extend far beyond Russia’s borders—in fact, he is deeply invested in lobbying foreign governments to adopt a hardline stance against the Kremlin. Beginning with his Open Russia Foundation, Khodorkovsky established a growing list of proxy groups—among them, think tanks, news outlets, and NGO’s—to marshal Western support for regime change in Russia.
Then came the 2016 election. In the months following Donald Trump’s blowout November victory, the contours of the Russiagate narrative began to take shape. Trump, posited the shellshocked Democrats and their media allies, had wittingly or unwittingly colluded with Putin’s Russia to rig the election in his favor. For the first time since the Soviet collapse, “Russia” surged to the forefront of American political discourse; “Russian meddling” became a household term in U.S. politics. Special Counsel Robert Mueller was handed a wide mandate to investigate Trump and the Trump campaign for Russian collusion and any other crimes that might be discovered along the way. Prominent publications raced to indulge in Manchurian Candidate-inspired fantasies. Donald Trump did not merely accept Russian help, claimed a sizable subset of activist journalists, Moscow had been grooming him since the 1980s as an intelligence asset who would one day run for president.
In the years of chaos and confusion that followed, Khodorkovsky saw a golden opportunity: more than ever, the American political landscape was ripe to be shaped in an anti-Kremlin direction. Without delay, he mobilized his vast network of assets to propagate and amplify Russiagate. Khodorkovsky founded the Dossier Center, a project devoted to tracking “the criminal activity of various people associated with the Kremlin.” Just as the Trump Tower meeting scandal was roiling the news cycle, the Dossier Center published a batch of emails claiming to show that Natalia Veselnitskaya—the Moscow lawyer who secured a meeting with Trump Jr. in 2016 on the pretense of having presidential campaign dirt on Hillary Clinton—was more closely tied to the Kremlin than she previously let on. Eager to add fuel to media speculation that Trump is somehow compromised by Russian oligarchs, the Dossier Center reached out to NBC News with emails allegedly showing that a top Trump donor offered to brief a Russian businessman on the Trump campaign. In the following year, the Center published documents repeating the popular Russiagate talking point that Russian intelligence services are plotting to stoke racial violence on American streets.
The Dossier Center is only the tip of a sophisticated influence operation, helmed by an interconnected web of think tanks working to shape U.S. foreign policy. There is the previously-mentioned Open Russia Foundation, the umbrella organization used by Khodorkovsky to funnel money toward his numerous media, education, and activism projects. The Institute of Modern Russia (IMR), nominally headed by Khodorkovsky’s son Pavel, comprises one part of his reach in the Washington D.C. think tank orbit. Open Russia is also associated with the D.C.-based think tank Free Russia Foundation, through their shared work with Russian opposition movement “Living Politics” (Zhivaya Politika) and close professional cooperation.
These groups are linked by a revolving door of staffers who are regularly shuffled between the three and often occupy multiple roles. Take, for instance, Vladimir Vladimirovich Kara-Murza, a prominent Russian opposition figure and Khodorkovsky associate who serves as vice-chairman of Open Russia, senior advisor to IMR, and vice president of Free Russia. There is a strong research continuity between these groups, partly because they share an overlapping pool of authors. A typical example is journalist Michael Weiss, who was a research fellow at IMR before becoming “director of special investigations” for Free Russia.
These think tanks have waded knee-deep into Russiagate. Most recently, Free Russia’s 2020 report, “Kill The Messenger,” framed Trump as a “populist” who “routinely threatens journalists and rails against so-called ‘fake news’.” The report went on to chide the Daily Caller for publishing an op-ed by Russian oligarch Oleg Deripaska—admittedly a somewhat curious accusation coming from a think tank that aligns with a Russian oligarch. Again missing the irony of the situation, the report concluded that “it remains ludicrous that Americans—American organizations, and American groups—can not only continue their close relationships with Russian oligarchs post-sanctions, but that they can continue to host and provide platforms for such figures.” Got that? Foreign meddling from Russian oligarchs is bad, unless that Russian oligarch is Mikhail Khodorkovsky and unless that meddling happens to be politically convenient to the Russiagate narrative. “Ludicrous,” indeed.
On select occasions, Khodorkovsky emerges from the background to express his views directly. In 2018, his personal news blog covered the Trump-Putin Helsinki Summit with the following headline: “As Trump Gives Way To Putin, The World Is Left In Dismay.” The article described Trump as “an pariah of human rights activists,” and charged him with a lurid tableau of “failures” conveying Khodorkovsky’s bitter disappointment that Trump did not confront Putin with sufficient hostility.
Khodorkovsky, unlike the Americans who work for his many proxies and front groups, has no real stake or apparent interest in the future of American democracy. He is, instead, cynically exploiting a constitutional crisis in the U.S. in order to foment regime change in Russia. Even more shockingly, he is doing all this with the enthusiastic approval of the very same political establishment that has insisted for the past six years that foreign meddling—particularly of the Russian variety—poses a mortal threat on the same level as an act of war.
Of Russiagate’s many paradoxes, the Khodorkovsky case is perhaps the most revealing. What was sold to us as a noble crusade to purge ourselves of malign foreign influence was, in large part, little more than a bid for power and control by a revanchist elite that blithely courts foreign help when it suits them.
Mark Episkopos writes on defense and international relations issues. He is also a PhD student in History at American University.


theamericanconservative--2020-09-28--Court Politics Will Get Uglier than Ever Before

When Democrats say that nothing is off the table , we ought to take them at their word .
Back in March of last year , amid hints that congressional Democrats might seek to expand , or “ pack , ” the Supreme Court to enhance their judicial sway , I wrote a piece for this space suggesting that would be politically foolhardy .
At the time , I didn ’ t really take the threat seriously because it seemed like such an outlandish thing to even contemplate , let alone to actually try to do .
And if they @ @ @ @ @ @ @ political backlash would be severe .
By way of illustration , I told the story of Franklin Roosevelt ’ s famous “ court packing ” effort back in 1937 , following his powerful sweep of American politics in the 1936 presidential and congressional balloting .
The president won reelection with 60.8 percent of the popular vote .
He pulled in 523 Electoral College ballots to just eight for his opponent , Republican Alf Landon .
Meanwhile , the opposition GOP ended up with only 17 seats in the Senate and 89 in the @ @ @ @ @ @ @ say him nay ?
” wrote reporters Joseph Alsop and Turner Catledge in a lively book narrative of the court-packing drama , The 168 Days .
As it turned out , plenty of influential figures emerged to say him nay and thwart what was widely considered , even by some Democrats and New Dealers , an unconscionable power grab .
In the end , FDR not only was defeated in his effort to reshape the Court but got his fingers burned in the process .
In my TAC piece of 18 months ago @ @ @ @ @ @ @ a similar political fate if they tried a similar initiative .
“ Good luck with that , ” I warned , with full confidence in my historical and political sagacity .
“ The American people don ’ t like that kind of raw power maneuver , as FDR discovered to his chagrin .
Any presidential candidate who pushes too hard on this issue will live to regret it , as will any president who seeks to succeed where Franklin Roosevelt , at the height of his influence , so abjectly failed.
” Now @ @ @ @ @ @ @ those words don ’ t seem so sagacious , which reflects how profoundly the political dynamics of America have changed in such a brief time .
Back in 1937 , the American people , who revered Roosevelt and had just handed him more power than just about any president had ever wielded in our democratic system , wouldn ’ t follow him into this enterprise , which seemed to the collective citizenry as dangerous to the republic .
In those days and until recently , it was all about the rules of political @ @ @ @ @ @ @ Constitution , as hallowed a document as was ever produced , in the view of most Americans .
Some were products of tradition and past practice in the delicately balanced U.S. political system , thus not to be tampered with cavalierly lest that delicate balance be disturbed .
Now the rules of engagement are fair game whenever they get in the way of the political aims of the partisan cadres .
And there doesn ’ t seem to be much prospect that people of either party will step back and say , “ @ @ @ @ @ @ @ rules are too important—too sacred , really—to be trampled upon for the sake of political advantage.
” Consider President Obama ’ s action in 2012 to grant legal status to some illegal immigrants brought to America as children , through no fault of their own .
Before he did that he insisted repeatedly that he lacked the authority to do so .
Pressed on the matter , Obama dismissed the idea as a violation of how our governmental system works .
“ I am not a king , ” he said .
“ @ @ @ @ @ @ @ branch of government.
” Pressed further , he explained what that means : “ There are enough laws on the books by Congress that are very clear on how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.
” Then he did it anyway .
When , five years later , President Trump sought to rescind the Obama order through his own executive action , he was thwarted by the U.S. Supreme Court under @ @ @ @ @ @ @ view that Trump hadn ’ t followed proper procedural niceties in trying to reverse a clearly unconstitutional executive action through his own executive initiative .
Rules of engagement ?
Out the window .
And no Democrats raised any questions about Obama ’ s unconstitutional move .
That ’ s not how it was in FDR ’ s day .
When he called in top members of Congress to summarily announce his plan for expanding the court ’ s size so he could steer it in his favored direction , the reaction was instant @ @ @ @ @ @ @ Catledge , “ did their best to keep their astonishment out of their faces , but it was a poor best.
” Hatton W. Sumners of Texas , a strong New Dealer up to then and chairman of the House Judiciary Committee , announced to his colleagues on the way back to the Capitol , “ Boys , here ’ s where I cash in my chips.
” He had decided almost instantly that he would oppose this effort on the part of his president to upend the governmental balance of power .
@ @ @ @ @ @ @ the six-month drama .
In the end , men like Sumners handed Roosevelt his head .
It was a stark instance of principle over politics .
“ Suddenly , ” wrote Alsop and Catledge , “ the shabby comedy of national politics , with its all-pervading motive , self-interest , its dreary dialogue of public oratory and its depressing scenery of patronage and projects , was elevated to a grand , even a tragic plane .
Suddenly the old Greek Theme of Hubris and Ara , of pride and the fall that comes @ @ @ @ @ @ @ we live in that shabby comedy of politics , with its all-pervading motive , self-interest , dreary dialogue of public oratory and depressing scenery of patronage and projects .
Hubris is everywhere in evidence , and no fall ever seems the consequence .
Senate minority leader Chuck Schumer has warned darkly that “ nothing is off the table ” if Republicans fill the current Supreme Court vacancy before the election and Democrats retain the House , capture the Senate , and gain the White House .
That seems to mean , at the @ @ @ @ @ @ @ Senate filibuster , devised early in the republic to protect minority views from being trampled by the majority .
It likely would mean an effort to expand the Court , in the FDR mold , to give the Democrats a chance to tilt it back toward the liberal viewpoint .
It could mean statehood for the District of Columbia and Puerto Rico to give Democrats four new Senate seats and a longtime lock on that chamber .
One has to ask : If this becomes the Democrats ’ agenda , who will emerge @ @ @ @ @ @ @ be the modern-day Hatton Sumners putting principle over party ?
The answer is that there won ’ t be any .
The old rules of political adversity , so crucial in maintaining a certain balance in the governmental system and a degree of comity among adversaries , are sacred no more .
Where this will leave us in , say , five years is not comforting to contemplate .
Robert W. Merry , former Wall Street Journal correspondent and CEO of Congressonal Quarterly , is the author most recently of President McKinley : @ @ @ @ @ @ @ & Schuster ) .

Back in March of last year, amid hints that congressional Democrats might seek to expand, or “pack,” the Supreme Court to enhance their judicial sway, I wrote a piece for this space suggesting that would be politically foolhardy. At the time, I didn’t really take the threat seriously because it seemed like such an outlandish thing to even contemplate, let alone to actually try to do. And if they did try, I argued, the political backlash would be severe.
By way of illustration, I told the story of Franklin Roosevelt’s famous “court packing” effort back in 1937, following his powerful sweep of American politics in the 1936 presidential and congressional balloting. The president won reelection with 60.8 percent of the popular vote. He pulled in 523 Electoral College ballots to just eight for his opponent, Republican Alf Landon. Meanwhile, the opposition GOP ended up with only 17 seats in the Senate and 89 in the House.
“Who was there to say him nay?” wrote reporters Joseph Alsop and Turner Catledge in a lively book narrative of the court-packing drama, The 168 Days.
As it turned out, plenty of influential figures emerged to say him nay and thwart what was widely considered, even by some Democrats and New Dealers, an unconscionable power grab. In the end, FDR not only was defeated in his effort to reshape the Court but got his fingers burned in the process.
In my TAC piece of 18 months ago, I suggested that Democrats would suffer a similar political fate if they tried a similar initiative.
“Good luck with that,” I warned, with full confidence in my historical and political sagacity. “The American people don’t like that kind of raw power maneuver, as FDR discovered to his chagrin. Any presidential candidate who pushes too hard on this issue will live to regret it, as will any president who seeks to succeed where Franklin Roosevelt, at the height of his influence, so abjectly failed.”
Now, just a few months later, those words don’t seem so sagacious, which reflects how profoundly the political dynamics of America have changed in such a brief time. Back in 1937, the American people, who revered Roosevelt and had just handed him more power than just about any president had ever wielded in our democratic system, wouldn’t follow him into this enterprise, which seemed to the collective citizenry as dangerous to the republic.
In those days and until recently, it was all about the rules of political engagement. Some were embedded in the Constitution, as hallowed a document as was ever produced, in the view of most Americans. Some were products of tradition and past practice in the delicately balanced U.S. political system, thus not to be tampered with cavalierly lest that delicate balance be disturbed.
Now the rules of engagement are fair game whenever they get in the way of the political aims of the partisan cadres. And there doesn’t seem to be much prospect that people of either party will step back and say, “No, the system and its traditional rules are too important—too sacred, really—to be trampled upon for the sake of political advantage.”
Consider President Obama’s action in 2012 to grant legal status to some illegal immigrants brought to America as children, through no fault of their own. Before he did that he insisted repeatedly that he lacked the authority to do so. Pressed on the matter, Obama dismissed the idea as a violation of how our governmental system works. “I am not a king,” he said. “I am the head of the executive branch of government.” Pressed further, he explained what that means: “There are enough laws on the books by Congress that are very clear on how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.”
Then he did it anyway. When, five years later, President Trump sought to rescind the Obama order through his own executive action, he was thwarted by the U.S. Supreme Court under Chief Justice John Roberts based on a view that Trump hadn’t followed proper procedural niceties in trying to reverse a clearly unconstitutional executive action through his own executive initiative. Rules of engagement? Out the window. And no Democrats raised any questions about Obama’s unconstitutional move.
That’s not how it was in FDR’s day. When he called in top members of Congress to summarily announce his plan for expanding the court’s size so he could steer it in his favored direction, the reaction was instant. Those present, wrote Alsop and Catledge, “did their best to keep their astonishment out of their faces, but it was a poor best.” Hatton W. Sumners of Texas, a strong New Dealer up to then and chairman of the House Judiciary Committee, announced to his colleagues on the way back to the Capitol, “Boys, here’s where I cash in my chips.”
He had decided almost instantly that he would oppose this effort on the part of his president to upend the governmental balance of power. And he did, implacably, throughout the six-month drama. In the end, men like Sumners handed Roosevelt his head. It was a stark instance of principle over politics. “Suddenly,” wrote Alsop and Catledge, “the shabby comedy of national politics, with its all-pervading motive, self-interest, its dreary dialogue of public oratory and its depressing scenery of patronage and projects, was elevated to a grand, even a tragic plane. Suddenly the old Greek Theme of Hubris and Ara, of pride and the fall that comes after, dominated the play.”
Now we live in that shabby comedy of politics, with its all-pervading motive, self-interest, dreary dialogue of public oratory and depressing scenery of patronage and projects. Hubris is everywhere in evidence, and no fall ever seems the consequence.
Senate minority leader Chuck Schumer has warned darkly that “nothing is off the table” if Republicans fill the current Supreme Court vacancy before the election and Democrats retain the House, capture the Senate, and gain the White House. That seems to mean, at the very least, the obliteration of the Senate filibuster, devised early in the republic to protect minority views from being trampled by the majority. It likely would mean an effort to expand the Court, in the FDR mold, to give the Democrats a chance to tilt it back toward the liberal viewpoint. It could mean statehood for the District of Columbia and Puerto Rico to give Democrats four new Senate seats and a longtime lock on that chamber.
One has to ask: If this becomes the Democrats’ agenda, who will emerge to say them nay? Who will be the modern-day Hatton Sumners putting principle over party? The answer is that there won’t be any. The old rules of political adversity, so crucial in maintaining a certain balance in the governmental system and a degree of comity among adversaries, are sacred no more. Where this will leave us in, say, five years is not comforting to contemplate.
Robert W. Merry, former Wall Street Journal correspondent and CEO of Congressonal Quarterly, is the author most recently of President McKinley: Architect of the American Century (Simon & Schuster).


theamericanconservative--2020-09-28--Re-Politicize the Supreme Court

Re-Politicize the Supreme Court

For most of its history , the nation 's highest court was a highly partisan affair .
It should be again .
In modern American politics each death or retirement of a Supreme Court justice seems to result in a mass wailing , with the threat that a new balance of power could upend the righteous legitimacy of the high court .
This fear is an unhealthy , but predictable side effect of treating an assortment of judges like they were apolitical seraphs , hovering above the rest of our elected , mortal government .
This divine treatment , where @ @ @ @ @ @ @ the thread that the republic hangs on , is a sensational departure from its humbler origins .
There is a reason why Article III of the U.S. Constitution was given the least attention by the framers , and why in the Federalist No .
78 Alexander Hamilton refers to the judiciary as “ the least dangerous ” of the three branches .
“ It may truly be said to have neither force nor will , but merely judgment , ” Hamilton wrote .
“ When John Jay was offered a second appointment as @ @ @ @ @ @ @ he turned it down because he ’ d rather be the Governor of New York , which was a higher office at the time , ” said Professor Kevin Gutzman of Western Connecticut State University , and author of The Politically Incorrect Guide to the Constitution .
The Supreme Court may have examined constitutional arguments and provided legal pronouncements , but it was considered as mundane and open to error as any other public office .
Neither were nominations to the court cause for controversy .
The process of an appointment typically took @ @ @ @ @ @ @ point being whether the nominee would acquiesce to accepting such a banal duty .
The first Senate judiciary hearings on Supreme Court nominees didn ’ t even occur until 1916 .
This lackadaisical perception of the court began to change with Brown v. Board of Education in 1954 .
Endowed with a theory of judicial activism and an attitude to propel societal change , the court struck down racial segregation in public schools , something that never could have originated in that era ’ s Congress .
Stepping into the role of transcendent @ @ @ @ @ @ @ the Supreme Court announced far-reaching decisions that typically overturned democratic mandates on issues such as freedom of association , the death penalty , abortion , public prayer , and most recently , marriage .
“ This whole model that we live under , more or less , would have been completely foreign to the people who made the Constitution , ” Gutzman told The American Conservative .
“ They weren ’ t fighting the revolution for government by unelected and unaccountable Harvard and Yale Law School graduates.
” Inversely , as the court @ @ @ @ @ @ @ its image became less partisan .
Justices shed their associations with the Republican and Democratic parties .
Aspirants to the highest court are expected to stay out of electoral politics , lest they be seen as too rigid or sectarian to be nominated .
Instead , judges facing a Senate committee swear allegiance to all court precedent , and it ’ s up to observers to cipher what they actually think on burning policy issues .
“ Nowadays we expect their personal behavior to be more or less apolitical , ” Gutzman said @ @ @ @ @ @ @ we expect their judicial behavior to be just rampant legislation if they ’ re of that disposition .
That ’ s where the real divide has come to be.
” Out of 114 men and women appointed to the U.S. Supreme Court , 35 % have had prior experience as a member of Congress , a state governor , or a member of the president ’ s cabinet .
Out of the justices appointed to the court prior to 1950 and the swing towards apolitical activism , the number rises to 47 % @ @ @ @ @ @ @ , in part , because they had a known track record of ideological loyalty to their party , and who affirmed that they shared the constitutional outlook of the president who nominated them .
“ When Chief Justice Jay…resigned his office , he wrote a letter to President Washington saying that his chief goal as Chief Justice had been ‘ the success of your administration.
’ So people didn ’ t draw the same kind of lines between the executive and judiciary as we do now , ” explained Gutzman .
Examples of @ @ @ @ @ @ @ Jackson ’ s most steadfast subordinate , Roger B. Taney served as Old Hickory ’ s secretary of war , attorney general , and finally secretary of the Treasury .
In that final post , Taney helped Jackson craft his bank veto message , and delivered the blow that killed the Second Bank of the United States .
For this , Jackson made him Chief Justice , where he served for almost three decades .
Taney ’ s replacement was Salmon P. Chase , who before the Civil War had been one of @ @ @ @ @ @ @ as Abraham Lincoln ’ s secretary of the Treasury , having already been elected as Ohio ’ s governor and then senator , Chase was nominated to the Court not in spite of his outspoken beliefs , but because of them .
James F. Byrnes built a 45-year career in politics as a stalwart Democrat .
He was a close advisor to both Franklin Roosevelt and Harry Truman , and would eventually serve as the latter ’ s secretary of state on top of being elected both governor and senator from South Carolina @ @ @ @ @ @ @ nominated Byrnes to the Supreme Court in 1941 , a position he only served in for 15 months before resigning at Roosevelt ’ s behest so he could become America ’ s economic czar during World War II .
Eyebrows weren ’ t even raised when justices dabbled in presidential politics .
Sitting members of the court , Levy Woodbury in 1848 , John McLean in 1856 and 1860 , and David Davis in 1872 all sought and failed to receive the presidential nomination of their respective parties .
In 1916 Charles Evans @ @ @ @ @ @ @ accept the Republican presidential nomination ; following his defeat , he was later renominated and served as the Chief Justice .
His predecessor at that post , of course , had been William Howard Taft , who had successfully entered the White House .
The most recent example is 1948 , when Democratic Party officials implored Justice William Douglas to wrestle the nomination from incumbent Harry Truman ; Douglas pleaded disinterest .
Contrast this with the experience of modern justices .
Byron White briefly served as Deputy Attorney General .
Sandra Day O @ @ @ @ @ @ @ Arizona .
And Clarence Thomas chaired the Equal Employment Opportunity Commission .
Even Robert Bork ’ s nomination was rejected by the Senate because as onetime Acting Attorney General he was too close to the toxicity of the Nixon White House .
These are pittances compared to their predecessors .
On Saturday , President Donald Trump nominated Amy Coney Barrett to succeed the late Ruth Bader Ginsburg .
While Barrett does break the Harvard-Yale duopoly—she ’ s a graduate of Notre Dame—her supporters are heavily relying on her Catholicism to postulate how she @ @ @ @ @ @ @ The parallel has already been drawn to current Chief Justice John Roberts , whose 2005 nomination was partially predicated on the social conservative credentials of his private life , but who became at best a fair-weather friend to the right .
If conservatives and constitutionalists are ever going to succeed in reversing the court-dictated , left-wing social engineering projects of the last half-century , then they must stop nominating to the court judges whose opinions require tarot cards to read .
That means selecting individuals with years of incontestable public statements , who @ @ @ @ @ @ @ away from them .
Senators Mike Lee and Ted Cruz fit that bill , and were incorporated into President Trump ’ s recent shortlist .
Their names were included as a courtesy , but they ought not have been .
The Supreme Court , a branch which pretends to be above the mud of electoral politics while simultaneously designing the country ’ s most divisive changes in law , must have its false sanctimony torn down .
And that means adding legislators to the mix .
Hunter DeRensis is Assistant Editor at the @ @ @ @ @ @ @ The American Conservative .
You can follow him on Twitter @ HunterDeRensis .

In modern American politics each death or retirement of a Supreme Court justice seems to result in a mass wailing, with the threat that a new balance of power could upend the righteous legitimacy of the high court. This fear is an unhealthy, but predictable side effect of treating an assortment of judges like they were apolitical seraphs, hovering above the rest of our elected, mortal government.
This divine treatment, where the Supreme Court’s decisions are the thread that the republic hangs on, is a sensational departure from its humbler origins. There is a reason why Article III of the U.S. Constitution was given the least attention by the framers, and why in the Federalist No. 78 Alexander Hamilton refers to the judiciary as “the least dangerous” of the three branches. “It may truly be said to have neither force nor will, but merely judgment,” Hamilton wrote.
“When John Jay was offered a second appointment as Chief Justice [in 1795], he turned it down because he’d rather be the Governor of New York, which was a higher office at the time,” said Professor Kevin Gutzman of Western Connecticut State University, and author of The Politically Incorrect Guide to the Constitution.
The Supreme Court may have examined constitutional arguments and provided legal pronouncements, but it was considered as mundane and open to error as any other public office. Neither were nominations to the court cause for controversy. The process of an appointment typically took one day, with the only sticking point being whether the nominee would acquiesce to accepting such a banal duty. The first Senate judiciary hearings on Supreme Court nominees didn’t even occur until 1916.
This lackadaisical perception of the court began to change with Brown v. Board of Education in 1954. Endowed with a theory of judicial activism and an attitude to propel societal change, the court struck down racial segregation in public schools, something that never could have originated in that era’s Congress. Stepping into the role of transcendent moral arbiter, in the following decades the Supreme Court announced far-reaching decisions that typically overturned democratic mandates on issues such as freedom of association, the death penalty, abortion, public prayer, and most recently, marriage.
“This whole model that we live under, more or less, would have been completely foreign to the people who made the Constitution,” Gutzman told The American Conservative. “They weren’t fighting the revolution for government by unelected and unaccountable Harvard and Yale Law School graduates.”
Inversely, as the court became more involved in creating law, its image became less partisan. Justices shed their associations with the Republican and Democratic parties. Aspirants to the highest court are expected to stay out of electoral politics, lest they be seen as too rigid or sectarian to be nominated. Instead, judges facing a Senate committee swear allegiance to all court precedent, and it’s up to observers to cipher what they actually think on burning policy issues.
“Nowadays we expect their personal behavior to be more or less apolitical,” Gutzman said. “On the other hand, we expect their judicial behavior to be just rampant legislation if they’re of that disposition. That’s where the real divide has come to be.”
Out of 114 men and women appointed to the U.S. Supreme Court, 35% have had prior experience as a member of Congress, a state governor, or a member of the president’s cabinet. Out of the justices appointed to the court prior to 1950 and the swing towards apolitical activism, the number rises to 47%.
These were men who were selected, in part, because they had a known track record of ideological loyalty to their party, and who affirmed that they shared the constitutional outlook of the president who nominated them. “When Chief Justice Jay…resigned his office, he wrote a letter to President Washington saying that his chief goal as Chief Justice had been ‘the success of your administration.’ So people didn’t draw the same kind of lines between the executive and judiciary as we do now,” explained Gutzman.
Examples of this are legion.
As arguably Andrew Jackson’s most steadfast subordinate, Roger B. Taney served as Old Hickory’s secretary of war, attorney general, and finally secretary of the Treasury. In that final post, Taney helped Jackson craft his bank veto message, and delivered the blow that killed the Second Bank of the United States. For this, Jackson made him Chief Justice, where he served for almost three decades.
Taney’s replacement was Salmon P. Chase, who before the Civil War had been one of the most outspoken anti-slavery Republicans. Acting as Abraham Lincoln’s secretary of the Treasury, having already been elected as Ohio’s governor and then senator, Chase was nominated to the Court not in spite of his outspoken beliefs, but because of them.
James F. Byrnes built a 45-year career in politics as a stalwart Democrat. He was a close advisor to both Franklin Roosevelt and Harry Truman, and would eventually serve as the latter’s secretary of state on top of being elected both governor and senator from South Carolina. For his good works, Roosevelt nominated Byrnes to the Supreme Court in 1941, a position he only served in for 15 months before resigning at Roosevelt’s behest so he could become America’s economic czar during World War II.
Eyebrows weren’t even raised when justices dabbled in presidential politics. Sitting members of the court, Levy Woodbury in 1848, John McLean in 1856 and 1860, and David Davis in 1872 all sought and failed to receive the presidential nomination of their respective parties. In 1916 Charles Evans Hughes resigned from the Supreme Court to accept the Republican presidential nomination; following his defeat, he was later renominated and served as the Chief Justice. His predecessor at that post, of course, had been William Howard Taft, who had successfully entered the White House. The most recent example is 1948, when Democratic Party officials implored Justice William Douglas to wrestle the nomination from incumbent Harry Truman; Douglas pleaded disinterest.
Contrast this with the experience of modern justices. Byron White briefly served as Deputy Attorney General. Sandra Day O’Connor was a state senator in Arizona. And Clarence Thomas chaired the Equal Employment Opportunity Commission. Even Robert Bork’s nomination was rejected by the Senate because as onetime Acting Attorney General he was too close to the toxicity of the Nixon White House. These are pittances compared to their predecessors.
On Saturday, President Donald Trump nominated Amy Coney Barrett to succeed the late Ruth Bader Ginsburg. While Barrett does break the Harvard-Yale duopoly—she’s a graduate of Notre Dame—her supporters are heavily relying on her Catholicism to postulate how she’ll vote in the future. The parallel has already been drawn to current Chief Justice John Roberts, whose 2005 nomination was partially predicated on the social conservative credentials of his private life, but who became at best a fair-weather friend to the right.
If conservatives and constitutionalists are ever going to succeed in reversing the court-dictated, left-wing social engineering projects of the last half-century, then they must stop nominating to the court judges whose opinions require tarot cards to read. That means selecting individuals with years of incontestable public statements, who lean into their conservative credentials, not away from them. Senators Mike Lee and Ted Cruz fit that bill, and were incorporated into President Trump’s recent shortlist.
Their names were included as a courtesy, but they ought not have been. The Supreme Court, a branch which pretends to be above the mud of electoral politics while simultaneously designing the country’s most divisive changes in law, must have its false sanctimony torn down. And that means adding legislators to the mix.
Buck modern propriety. Bring back historical norms. Nominate a Republican.
Hunter DeRensis is Assistant Editor at the Libertarian Institute and a regular contributor to The American Conservative. You can follow him on Twitter @HunterDeRensis.


theamericanconservative--2020-09-29--On the Road to Gilead

On the Road to Gilead

We all knew , post-Kavanaugh , that some outlandish line of attack would be pursued with earnest against Trump ’ s latest SCOTUS nominee , but there ’ s still something remarkable about the sheer speed with which the mainstream media , the Facebook aunts , and the Blue Check Mafia arrange into a univocal chorus .
This time around , our thought-leaders tell us that the confirmation of this Catholic mother and accomplished jurist will deliver us into the world of Margaret Atwood ’ s acclaimed 1985 novel , where all fertile women—including our hero , Offred—are forced into @ @ @ @ @ @ @ the all-male leaders of the new totalitarian regime .
The first sanctioned think-piece cropped up as early as last Monday ( five days before the nomination was officially announced ) in Newsweek .
It ’ s a baffling exercise in “ guilt by association with something vaguely similar to another thing that an author may have read about 35 years ago.
” Entitled “ How Charismatic Catholic Groups Like Amy Coney Barrett ’ s People of Praise Inspired The Handmaid ’ s Tale , ” it ’ s founded on a misreading : @ @ @ @ @ @ @ a group called “ People of Grace ” out of a newspaper , and Amy Coney Barrett is a longtime member of an unrelated group called People of Praise .
The author of the Newsweek piece conflated the two—both groups happen to have used the centuries-old word handmaiden—and suddenly ( in her mind and the minds of a great many gullible readers ) Judge Barrett became the basis for every fourth-wave feminist ’ s favorite bit of literary masochism .
( Upon realizing that the entire foundation of this piece was false , @ @ @ @ @ @ @ note at the end . )
This is nothing new : fans have been reading themselves into Atwood ’ s persecuted women since the day the book came out , insistent that their very existence on the same planet as religious people is roughly equivalent to the bondage of the novel ’ s handmaids .
This feeling has only intensified in the last four years—a reflection at The Verge ran just one day after the 2016 election under the headline “ In Trump ’ s America , The Handmaid ’ s Tale matters @ @ @ @ @ @ @ these convulsions , calling the story “ speculative fiction ” and insisting that she “ didn ’ t put in anything that we haven ’ t already done , we ’ re not already doing , we ’ re seriously trying to do , coupled with trends that are already in progress… So all of those things are real , and therefore the amount of pure invention is close to nil.
” In response to a claim on Twitter that she was “ prescient ” in light of Barrett ’ s nomination , @ @ @ @ @ @ @ .
( She ’ s Canadian . )
I must admit at this point that I had neither read the book nor watched the hit series adapted from it in 2017 .
This weekend , in a medieval act of penance that ought to earn me centuries off of Purgatory , I did both .
I expected it to be laughable ; from what I knew , it sounded like an outlandish fantasy , an outlet for hatred of people of faith , a way to indulge the left ’ s ever-growing victim @ @ @ @ @ @ @ Now , make no mistake , it ’ s a terrible book .
The prose is atrocious—already in the first paragraph I wished I could call Atwood up and tell her that you can not smell an “ afterimage.
” The premise is ridiculous—in the blink of an eye , a ragtag band of fanatics managed to assassinate all of Congress , defeat the U.S. military , and take over most of the continental United States ; once they ’ d done this , our fanatics stripped women of all property and rights @ @ @ @ @ @ @ restrictive social order with shockingly little difficulty .
Even Adi Robertson , author of the aforementioned essay at The Verge , admits that the absurdity of Atwood ’ s dystopia is a stumbling block .
( I am also not convinced that we can take seriously any dystopian regime whose mastermind is named Fred . )
Despite the book ’ s many shortcomings , though , I can not help but agree with Atwood ’ s assessment that her story ’ s central evils are tied to trends already present in our world @ @ @ @ @ @ @ the trends that Atwood had assumed—nor ones , I suspect , she has any interest in denouncing .
Take , for instance , the highly regimented , highly artificial social order at the center of Offred ’ s fictional world .
There are the Commanders , technocratic male elites who have led the revolution and now lead its aftermath .
There are the Aunts , spinsterly women charged with the indoctrination and supervision of new Handmaids .
There are the Handmaids themselves , perpetual surrogates valued solely for their wombs and subjected monthly @ @ @ @ @ @ @ Marthas , domestic servants charged with mundane tasks like cooking and cleaning .
There are the Eyes , Gilead ’ s secret police .
There are , of course , still prostitutes .
For every discerned societal function , there is an entire class of people assigned , identified by particular clothing , inseparable as people from their utility to the task .
( Talk about the division of labor . )
The heart of Gilead is not religious extremism , but social engineering .
Nowhere is this more apparent than in the @ @ @ @ @ @ @ defines their role .
The idea that women can be used outside of the confines of marriage as incubators for strongly desired children would be abhorrent to the vast majority of religious conservatives who seem to be The Handmaid ’ s Tale ‘ s targets .
But it is all the rage in certain secular and progressive circles—and by no means is it limited to the fringes .
It has become especially popular among homosexual couples , many of whom pay top dollar for Handmaids who serve a purpose they can not fulfill @ @ @ @ @ @ @ s world and ours—both in surrogacy and in the assignation of people to all-consuming economic roles—is the illusion of choice .
The problem , presumably , is not that the novel ’ s women are resigned to lives as walking wombs or floor-scrubbers ; the problem is that they are not being paid for it .
There is no other meaningful distinction : the standard reproductive ritual of our own sterile elites is merely a Handmaid ’ s Ceremony where dollars change hands .
Just how scant the differences are between Offred ’ @ @ @ @ @ @ @ in the TV adaptation , as pre-Gilead America has been updated to reflect the changing times .
June—Offred ’ s name pre-Gilead—is a 2020 feminist ’ s hero .
She had a chic job as an assistant book editor .
She began her relationship with her husband—a handsome , bespectacled African-American hipster—as an illicit affair during his first marriage .
She drops f-bombs a few times every episode .
( Only , of course , in her internal monologues—a regime as repressive as Gilead does not allow such empowering activities as constantly saying @ @ @ @ @ @ @ see no real family—only the husband June has drawn away from his wife , and brief glimpses of a baby daughter .
In fact , we see hardly any human relationships at all , besides one friend , Moira , the token black lesbian .
We see very little from which June can draw meaning , purpose , or support .
Her life is a perpetual rotation between the bedroom and the office .
Sex , work ; sex , work ; sex , work .
It is not a great leap , @ @ @ @ @ @ @ to Offred ’ s Gilead .
The family has disintegrated .
The government of the United States has fallen .
Rigid , meticulous control is maintained over the economy—over every facet of life , in fact .
This is not Amy Coney Barrett ’ s vision of the future—but it is someone ’ s .
Likewise , June ’ s pre-Gilead life is a world apart from Amy Coney Barrett ’ s—but it is an eerie reflection of how many Americans live today , especially the faithless .
Gilead , just like its @ @ @ @ @ @ @ irreligious state .
There is not much faith in Gilead at all—only cynical gaming of means and ends , and a veil of sanctity cast halfheartedly over the game itself .
Surrogacy , servitude , violence , power—these are not inventions of religious fanatics .
They are functional aspects of the secular world that may take on religious character if a vacuum is left for them to fill .
There is sacred verbiage scattered throughout Offred ’ s world , and not infrequent calls to prayer .
But there is never a sense @ @ @ @ @ @ @ Gilead is a substantially confessional state .
It is , rather , the project of social engineers , merely imbued with the gravity , the fidelity , and even the language properly due to religious matter .
The horrific vision of The Handmaid ’ s Tale is not what happens when the religious instinct runs too strong , but what happens when it runs in the wrong direction—when man ’ s natural tendencies towards order , ritual , worship are channeled to places where they don ’ t belong .
Good thing there @ @ @ @ @ @ @ .

So, it’s The Handmaid’s Tale.
We all knew, post-Kavanaugh, that some outlandish line of attack would be pursued with earnest against Trump’s latest SCOTUS nominee, but there’s still something remarkable about the sheer speed with which the mainstream media, the Facebook aunts, and the Blue Check Mafia arrange into a univocal chorus.
This time around, our thought-leaders tell us that the confirmation of this Catholic mother and accomplished jurist will deliver us into the world of Margaret Atwood’s acclaimed 1985 novel, where all fertile women—including our hero, Offred—are forced into sex-slavery in order to bear children for the all-male leaders of the new totalitarian regime.
The first sanctioned think-piece cropped up as early as last Monday (five days before the nomination was officially announced) in Newsweek. It’s a baffling exercise in “guilt by association with something vaguely similar to another thing that an author may have read about 35 years ago.” Entitled “How Charismatic Catholic Groups Like Amy Coney Barrett’s People of Praise Inspired The Handmaid’s Tale,” it’s founded on a misreading: Margaret Atwood once clipped an article on a group called “People of Grace” out of a newspaper, and Amy Coney Barrett is a longtime member of an unrelated group called People of Praise.
The author of the Newsweek piece conflated the two—both groups happen to have used the centuries-old word handmaiden—and suddenly (in her mind and the minds of a great many gullible readers) Judge Barrett became the basis for every fourth-wave feminist’s favorite bit of literary masochism. (Upon realizing that the entire foundation of this piece was false, Newsweek tweaked the headline and added a note at the end.)
This is nothing new: fans have been reading themselves into Atwood’s persecuted women since the day the book came out, insistent that their very existence on the same planet as religious people is roughly equivalent to the bondage of the novel’s handmaids. This feeling has only intensified in the last four years—a reflection at The Verge ran just one day after the 2016 election under the headline “In Trump’s America, The Handmaid’s Tale matters more than ever.” Atwood herself encourages these convulsions, calling the story “speculative fiction” and insisting that she “didn’t put in anything that we haven’t already done, we’re not already doing, we’re seriously trying to do, coupled with trends that are already in progress… So all of those things are real, and therefore the amount of pure invention is close to nil.” In response to a claim on Twitter that she was “prescient” in light of Barrett’s nomination, Atwood seemed to agree, and apologized. (She’s Canadian.)
* * *
I must admit at this point that I had neither read the book nor watched the hit series adapted from it in 2017. This weekend, in a medieval act of penance that ought to earn me centuries off of Purgatory, I did both. I expected it to be laughable; from what I knew, it sounded like an outlandish fantasy, an outlet for hatred of people of faith, a way to indulge the left’s ever-growing victim complex. But I was wrong.
Now, make no mistake, it’s a terrible book. The prose is atrocious—already in the first paragraph I wished I could call Atwood up and tell her that you cannot smell an “afterimage.” The premise is ridiculous—in the blink of an eye, a ragtag band of fanatics managed to assassinate all of Congress, defeat the U.S. military, and take over most of the continental United States; once they’d done this, our fanatics stripped women of all property and rights, and implemented a complex, highly restrictive social order with shockingly little difficulty. Even Adi Robertson, author of the aforementioned essay at The Verge, admits that the absurdity of Atwood’s dystopia is a stumbling block. (I am also not convinced that we can take seriously any dystopian regime whose mastermind is named Fred.)
Despite the book’s many shortcomings, though, I cannot help but agree with Atwood’s assessment that her story’s central evils are tied to trends already present in our world. They are not, however, the trends that Atwood had assumed—nor ones, I suspect, she has any interest in denouncing.
Take, for instance, the highly regimented, highly artificial social order at the center of Offred’s fictional world. There are the Commanders, technocratic male elites who have led the revolution and now lead its aftermath. There are the Aunts, spinsterly women charged with the indoctrination and supervision of new Handmaids. There are the Handmaids themselves, perpetual surrogates valued solely for their wombs and subjected monthly to ritual rape. There are the Marthas, domestic servants charged with mundane tasks like cooking and cleaning. There are the Eyes, Gilead’s secret police. There are, of course, still prostitutes. For every discerned societal function, there is an entire class of people assigned, identified by particular clothing, inseparable as people from their utility to the task. (Talk about the division of labor.) The heart of Gilead is not religious extremism, but social engineering.
Nowhere is this more apparent than in the Handmaids themselves, and the Ceremony that defines their role. The idea that women can be used outside of the confines of marriage as incubators for strongly desired children would be abhorrent to the vast majority of religious conservatives who seem to be The Handmaid’s Tale‘s targets. But it is all the rage in certain secular and progressive circles—and by no means is it limited to the fringes. It has become especially popular among homosexual couples, many of whom pay top dollar for Handmaids who serve a purpose they cannot fulfill themselves.
The difference between Offred’s world and ours—both in surrogacy and in the assignation of people to all-consuming economic roles—is the illusion of choice. The problem, presumably, is not that the novel’s women are resigned to lives as walking wombs or floor-scrubbers; the problem is that they are not being paid for it. There is no other meaningful distinction: the standard reproductive ritual of our own sterile elites is merely a Handmaid’s Ceremony where dollars change hands.
Just how scant the differences are between Offred’s world and ours is more apparent in the TV adaptation, as pre-Gilead America has been updated to reflect the changing times. June—Offred’s name pre-Gilead—is a 2020 feminist’s hero. She had a chic job as an assistant book editor. She began her relationship with her husband—a handsome, bespectacled African-American hipster—as an illicit affair during his first marriage. She drops f-bombs a few times every episode. (Only, of course, in her internal monologues—a regime as repressive as Gilead does not allow such empowering activities as constantly saying the f-word out loud.)
We see no real family—only the husband June has drawn away from his wife, and brief glimpses of a baby daughter. In fact, we see hardly any human relationships at all, besides one friend, Moira, the token black lesbian. We see very little from which June can draw meaning, purpose, or support. Her life is a perpetual rotation between the bedroom and the office. Sex, work; sex, work; sex, work.
It is not a great leap, then, from June’s America to Offred’s Gilead. The family has disintegrated. The government of the United States has fallen. Rigid, meticulous control is maintained over the economy—over every facet of life, in fact. This is not Amy Coney Barrett’s vision of the future—but it is someone’s. Likewise, June’s pre-Gilead life is a world apart from Amy Coney Barrett’s—but it is an eerie reflection of how many Americans live today, especially the faithless.
Gilead, just like its precursor, is best understood as an irreligious state. There is not much faith in Gilead at all—only cynical gaming of means and ends, and a veil of sanctity cast halfheartedly over the game itself. Surrogacy, servitude, violence, power—these are not inventions of religious fanatics. They are functional aspects of the secular world that may take on religious character if a vacuum is left for them to fill.
There is sacred verbiage scattered throughout Offred’s world, and not infrequent calls to prayer. But there is never a sense of deep religiosity, nor even that Gilead is a substantially confessional state. It is, rather, the project of social engineers, merely imbued with the gravity, the fidelity, and even the language properly due to religious matter.
The horrific vision of The Handmaid’s Tale is not what happens when the religious instinct runs too strong, but what happens when it runs in the wrong direction—when man’s natural tendencies towards order, ritual, worship are channeled to places where they don’t belong.
Good thing there’s no evidence of that approaching.


theamericanconservative--2020-09-29--What Courts Are (and Are Not) For

What Courts Are (and Are Not) For

Anyone contemplating the performance of America ’ s judiciary over the last seventy years would gain the impression that American courts are constituted as revolutionary committees whose function is to impose new moral , social , or economic rules on society .
This is a shared view of America ’ s right and its left .
The right seeks to restore what it views as the Golden Age that existed between the suppression of the 1877 railroad strike and the progressive era—a period in which an income tax was invalidated , social legislation retarded , and an American welfare state @ @ @ @ @ @ @ , it has secured its share of victories .
The antitrust laws have been vitiated , as has the Norris-La Guardia Act and , to a large extent , the civil jury trial .
Private rights have been held to trump public order in the recent McDonald case subjecting state firearms laws to discretionary censorship by the Supreme Court .
The federal administrative agencies that have survived legislative deregulation have been similarly subordinated to the United States Court of Appeals for the District of Columbia Circuit .
The victories of the left , @ @ @ @ @ @ @ the civil rights movement , are better understood .
“ The idea of equality , once loosed , ” Archibald Cox prophetically observed , “ is not easily cabined.
” No less an authority than the late Justice Ruth Ginsburg , who campaigned from the bench for longer statutes of limitations , has proclaimed that a drive for ever greater equality is the central principle of the American constitution .
Thus it is that school districting , financing , and discipline have been subjected to constant judicial interference , family law has been @ @ @ @ @ @ @ systems of sexual morality denied , and parity enforced between those characteristically raising families and those infrequently doing so .
At the risk of being accused of fostering the precepts of Ptolemy in a Copernican age , I would deny that this is what courts are for .
Both the classical and Christian tradition and the views of the Constitution ’ s framers argue against such capacious views of judicial power and competence .
The function of the magistrate , Aristotle proclaimed in the third book of the Nicomachean Ethics , was corrective @ @ @ @ @ @ @ quo when society was disturbed by crimes or civil wrongs .
Distributive justice , having to do with the distribution of goods and rights in society , was the function of rulers : a monarch in traditional societies , a legislature in democratic ones .
Similar views are found in Aquinas ’ Summa Theologica .
The framers of our Constitution , for their part , forswore both microeconomics and moral philosophy as guiding principles .
Proposals to embed an anti-monopoly clause in the Constitution were rejected , as were proposals to make the @ @ @ @ @ @ @ On no fewer than three occasions , they voted not to give the Supreme Court a power of discretionary review over the acts of State legislatures .
Instead , a Constitution was enacted to provide a political structure for the settlement of inevitable economic and moral disputes .
Horizontal and vertical separations of powers were provided to reduce their virulence and allow political losers to fight another day , as were guarantees of fair and frequent elections and freedom of political speech .
Standing armies , the common means of political oppression prior @ @ @ @ @ @ @ and intelligence agencies , were restricted .
Freedom from fear was secured for political actors by guarantees of procedural due process , habeas corpus , and the particular guarantees of fair criminal procedure in the Bill of Rights , inspired by both British experience and the colonial abuses catalogued in the Declaration of Independence .
What was contemplated , as Justice Holmes famously declared , was a Constitution “ for people of differing views.
” The courts wielded a veto , not a prod .
The courts ’ not infrequent usurpations of greater @ @ @ @ @ @ @ history .
The Dred Scott decision , the Legal Tender cases , the Income Tax case , and the cases invalidating early attempts at social and civil rights legislation did not establish any social consensus and did more to inflame factions than restore social peace , since those given permanent victories find it unnecessary to listen to the losers .
That will be the the judgment of history on most of the civil rights cases , once enfranchisement was secured , and on the women ’ s rights , reapportionment , and gay @ @ @ @ @ @ @ judicial process by new contending groups has produced a debasement in its methods , ill-adapted in any case to inquire into large questions of public policy .
Recent years have seen an abdication by both federal and state attorneys general of their duties to defend legislation , collusive consent decrees and class actions scattering largesse on both lawyers and government bureaucracies , and disregard of the statutory restraints enacted in both the Progressive and New Deal eras against ‘ government by injunction.
” In the process , ever-larger political factions have come to @ @ @ @ @ @ @ The consequence has been that American courts , unlike those of Britain , have feared to exercise their proper role as defenders of fair procedure .
Persons imprisoned for years in the United States as ‘ terrorists ’ without so much as an administrative hearing have been liberated within hours of their arrival on British soil .
The courts there do not pretend to be representative bodies , nor are they constituted as such .
There , judges are not appointed to represent races , genders , nationalities , religions , or political @ @ @ @ @ @ @ restricted but important functions without which liberty can not survive : predictability in rules governing private relations , and freedom from fear of arbitrary confinement by the executive .
George Liebmann , a Baltimore lawyer , is the author of The Common Law Tradition : A Collective Portrait of Five Legal Scholars ( Transaction Books ) , among other works .

Anyone contemplating the performance of America’s judiciary over the last seventy years would gain the impression that American courts are constituted as revolutionary committees whose function is to impose new moral, social, or economic rules on society. This is a shared view of America’s right and its left.
The right seeks to restore what it views as the Golden Age that existed between the suppression of the 1877 railroad strike and the progressive era—a period in which an income tax was invalidated, social legislation retarded, and an American welfare state prevented. Contrary to its own view, it has secured its share of victories. The antitrust laws have been vitiated, as has the Norris-La Guardia Act and, to a large extent, the civil jury trial. Private rights have been held to trump public order in the recent McDonald case subjecting state firearms laws to discretionary censorship by the Supreme Court. The federal administrative agencies that have survived legislative deregulation have been similarly subordinated to the United States Court of Appeals for the District of Columbia Circuit.
The victories of the left, given a new lease on life by the civil rights movement, are better understood. “The idea of equality, once loosed,” Archibald Cox prophetically observed, “is not easily cabined.” No less an authority than the late Justice Ruth Ginsburg, who campaigned from the bench for longer statutes of limitations, has proclaimed that a drive for ever greater equality is the central principle of the American constitution. Thus it is that school districting, financing, and discipline have been subjected to constant judicial interference, family law has been reshaped, society’s interest in systems of sexual morality denied, and parity enforced between those characteristically raising families and those infrequently doing so.
At the risk of being accused of fostering the precepts of Ptolemy in a Copernican age, I would deny that this is what courts are for. Both the classical and Christian tradition and the views of the Constitution’s framers argue against such capacious views of judicial power and competence. The function of the magistrate, Aristotle proclaimed in the third book of the Nicomachean Ethics, was corrective justice, the restoration of the status quo when society was disturbed by crimes or civil wrongs. Distributive justice, having to do with the distribution of goods and rights in society, was the function of rulers: a monarch in traditional societies, a legislature in democratic ones. Similar views are found in Aquinas’ Summa Theologica.
The framers of our Constitution, for their part, forswore both microeconomics and moral philosophy as guiding principles. Proposals to embed an anti-monopoly clause in the Constitution were rejected, as were proposals to make the establishment clause binding against the States. On no fewer than three occasions, they voted not to give the Supreme Court a power of discretionary review over the acts of State legislatures.
Instead, a Constitution was enacted to provide a political structure for the settlement of inevitable economic and moral disputes. Horizontal and vertical separations of powers were provided to reduce their virulence and allow political losers to fight another day, as were guarantees of fair and frequent elections and freedom of political speech. Standing armies, the common means of political oppression prior to the modern invention of police forces and intelligence agencies, were restricted. Freedom from fear was secured for political actors by guarantees of procedural due process, habeas corpus, and the particular guarantees of fair criminal procedure in the Bill of Rights, inspired by both British experience and the colonial abuses catalogued in the Declaration of Independence.
What was contemplated, as Justice Holmes famously declared, was a Constitution “for people of differing views.” The courts wielded a veto, not a prod. The courts’ not infrequent usurpations of greater powers have not been kindly regarded by history. The Dred Scott decision, the Legal Tender cases, the Income Tax case, and the cases invalidating early attempts at social and civil rights legislation did not establish any social consensus and did more to inflame factions than restore social peace, since those given permanent victories find it unnecessary to listen to the losers. That will be the the judgment of history on most of the civil rights cases, once enfranchisement was secured, and on the women’s rights, reapportionment, and gay rights cases.
The discovery of the judicial process by new contending groups has produced a debasement in its methods, ill-adapted in any case to inquire into large questions of public policy. Recent years have seen an abdication by both federal and state attorneys general of their duties to defend legislation, collusive consent decrees and class actions scattering largesse on both lawyers and government bureaucracies, and disregard of the statutory restraints enacted in both the Progressive and New Deal eras against ‘government by injunction.” In the process, ever-larger political factions have come to regard the courts as their enemies.
The consequence has been that American courts, unlike those of Britain, have feared to exercise their proper role as defenders of fair procedure. Persons imprisoned for years in the United States as ‘terrorists’ without so much as an administrative hearing have been liberated within hours of their arrival on British soil. The courts there do not pretend to be representative bodies, nor are they constituted as such. There, judges are not appointed to represent races, genders, nationalities, religions, or political parties. Their allegiance is to two restricted but important functions without which liberty cannot survive: predictability in rules governing private relations, and freedom from fear of arbitrary confinement by the executive.
George Liebmann, a Baltimore lawyer, is the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books), among other works.