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The Paranoid Style and Senator Whitehouse

Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.

In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his  opening statement,  he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology.  How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service”  continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.

Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place. Law, for instance, is not just about results but about reason for results. Justices, at least if they are doing law, cannot easily be enlisted in a conspiracy with non-legal objectives.

Senator Whitehouse does not  entertain the possibility that law rather than participation in a “delivery service” would motivate the justices.  For instance, he  dismisses the argument that the original constitution protects speech by corporations as a joke, unworthy of serious discussion. But there are powerful reasons in the text and structure of the First Amendment not to distinguish as a matter of coverage between speech by associations, including corporations, and individuals. The First Amendment is unambiguously phrased as a prohibition on Congress and makes no distinctions among associations, corporations, and individuals. Thus, the original the First Amendment public meaning does not discriminate between individuals and organizations

Like others who see conspiracies, he also omits inconvenient facts. He says that the Roberts Court has ruled for corporations in sixteen cases out of sixteen. But it is the Senator who has chosen sixteen cases about corporations which he is counting from a much longer list of cases in which corporate interests are implicated.  Talk about selection bias! He ignores, just to take one example, Massachusetts v. EPA where the Roberts Court permitted the EPA to impose costly regulations against carbon dioxide emissions,  in fact permitting standing on novel theory. Business interests lost big in that case.

More generally, Jonathan Adler, the editor of the only book devoted to the Roberts Court and business concluded: “Taken together, the analyses in this book suggest that there are aspects of the Court’s approach to business-related cases that are definitely advantageous to business groups, but that this appears to be the result of other doctrinal commitments and legal policy preferences, and not the result of favoritism toward business litigants and their interests. “

In short, the Roberts Court, like other courts, are driven by methodological commitments, not simply political preferences.  These commitments may offer grounds for criticism of that Court and for debate over whether Judge Gorsuch shares an approach to judicial decision making that is incorrect.  But the Senator’s style of argument impoverishes political discourse, misunderstands the nature of law,  and encourages citizens to think of themselves as victims of dark forces they cannot control.

Reader Discussion

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on March 22, 2017 at 14:32:07 pm

Where is the public outrage over the disrespect for the judiciary?

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Wayne Abernathy
on March 22, 2017 at 15:18:59 pm

Come now, sir! don't you know that *originalist* Judges are actually part of the "fake" judiciary, and are therefore deemed not worthy of respect.
Imposters - one and all, says the Senator.

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gabe
on March 22, 2017 at 15:45:16 pm

Gorsuch is a good candidate. The leftist senators are grasping at straws, more to put on a show before the inevitable happens than to actually try to stop the inevitable from happening.

Gabe, are you actually defending black robes? Will wonders never cease!?

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Scott Amorian
on March 23, 2017 at 10:28:16 am

Whitehouse …. asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology…. Senator Whitehouse claims that this “delivery service” continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.

???

It never occurred to me that there wasn’t such a machine. The NAACP and the ACLU have had quite explicit litigation strategies designed to promote certain policy objectives. People associated with these organizations end up on the court, and these organizations continue to file cases as litigants and and file amicus briefs. I’d assumed the same sort of thing occurs with the Federalist Society, the Becket Fund, etc. If not, then shame on them.

And yes, what Whitehouse calls opposition to the public interest, people with a different political bent would call serving the public interest—and vice versa. Whitehouse thinks that having unregulated business-related donations in politics is corrupting; people on this blog argue that it’s healthful free speech. Whitehouse is overtly a politician, and he’s making an overtly political speech about the public interest as he understands it. No big surprises here.

In contrast, what is McGinnis’s role here? I'd like to think he speaks as a candid analyst, albeit one with a political perspective. But we're not playing hide-the-ball here, right?

In short, the Roberts Court, like other courts, are driven by methodological commitments, not simply political preferences.

Yeah, ok. But that’s very short.

To be somewhat less brief, here’s the context of our discussion: The Senate’s Judiciary Committee is deciding whether to give consent to a candidate for the Supreme Court advanced by the Trump Administration. Does anyone believe this candidate was picked solely on the grounds of his methodological commitments, without regard to the substance of his views? Does anyone think that the Republicans stonewalled Garland out of a concern for his “methodological commitments”?

Please.

Let me be clear: I have no specific grounds to think that Gorsuch is any less principled than any other judge, or that he wouldn’t act with independence and integrity on the bench according to his own views. But I have no doubt that he was picked because of his views. The Republican Party expects that he will “deliver” decisions that align with their preferences—much as Ginsburg has delivered decisions that align with Democratic preferences.

Senator’s style of argument impoverishes political discourse, misunderstands the nature of law, and encourages citizens to think of themselves as victims of dark forces they cannot control.

Maybe. Or maybe it’s just candid: Judicial candidates are nominated to advance the agendas of the people who nominate them. The public IS the victim of forces they cannot control. It’s just that those forces aren’t all that dark; they’re just the same forces that drive much of the rest of government.

I find nothing especially shameful in the idea that parties would nominate principled judges that they think will deliver decisions they like. What I find shameful is the idea that anyone would try to deny this dynamic.

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nobody.really
on March 23, 2017 at 12:58:26 pm

Nobody:

Agreed with 99.44% of what you say here. But unlike the old Ivory Snow detergent which produced very white clean sheets (Marilyn Chambers notwithstanding), the 0.56% does somewhat soil the linen. OK, it ain;t your 0.56%; it is the Senators characterization of not just a machine (true enough) but of a *delivery service* that is clearly intended to diminish the thoughtful, albeit ideological, deliberations on the part of that particular *machine* Clearly, Whitehouse intends to slander not just the "machine" but also the good Justice by a vague allusion to some hidden conspirators actively working to install one who would otherwise not be so installed were these machinations to see the light of day.

Is there nothing else that Whitehouse, Schuner, Feinstein, etc. can develop by way of substantive argument?

This does grow tiresome.

One wonders would Whitehouse characterize the "machinations" of that (former) Senatorial excrescence Harry Reid of Nevada for his "delivery service" in successfully delivering over 300 Federal Judges of Progressive persuasion for the Obama administration.

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gabe
on March 23, 2017 at 13:16:55 pm

Senator Whitehouse has already cited Hofatader's Paronoid Style in a 2009 Senate speech.Democrat Compares Health-Care Opponents to Nazis

This afternoon, Sen. Sheldon Whitehouse (D-R.I.) gave a speech in which he quoted Richard Hofstadter’s 1964 essay, “The Paranoid Style in American Politics” and accused ObamaCare opponents of inciting “vindictive passions”:

“Far from appealing to the better angels of our nature, too many colleagues are embarked on a desperate no-holds-barred mission of propaganda, obstruction and fear. History cautions us of the excesses to which these malignant, vindictive passions can ultimately lead. Tumbrils have rolled through taunting crowds, broken glass has sparkled in darkened streets. Strange fruit has hung from Southern trees. Even this great institution of government that we share has cowered before a tail-gunner waving secret lists.” (Emphasis added.)

A full text of Sen. Whitehouse’s remarks is not yet available, but at this moment, Sen. Jon Kyl (R-Ariz.) is rebutting the Democrat’s accusations

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Gringo
on March 23, 2017 at 13:57:41 pm

Does anyone believe this candidate was picked solely on the grounds of his methodological commitments, without regard to the substance of his views? Does anyone think that the Republicans stonewalled Garland out of a concern for his “methodological commitments”?

Please.

Is there nothing else that Whitehouse, Schuner, Feinstein, etc. can develop by way of substantive argument?

This does grow tiresome.

Without passing judgment on the merits of the arguments of Whitehouse et al., you understand that their arguments are just window-dressing, right? The Democrats are preparing to filibuster Gorsuch's confirmation, and they're trying to make the most sympathetic case they can for their actions. But their case will be no more driven by these concerns than were Republican arguments for blocking Garland. It's just power politics. So I'm not sure that it makes sense to analyze these arguments in anything but political terms.

Facing a filibuster, the Senate Republicans will then have to decide whether to exercise the nuclear option and eliminate the filibuster for judicial nominations. But with Trump working overtime to ensure that the Republicans lose the next presidential election--and, indeed, pushing a health care bill that will help the Democrats in the midterms--it's far from clear that Republican Senators will want to sacrifice their long-term institutional interests simply to carry water for Trump.

So who knows? Madison's theories of institutional rivalries may still have some life in it after all.

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nobody.really
on March 23, 2017 at 18:25:58 pm

1) Yep, we are in agreement on this - although I had heard that the GOP did not like the "crease" in Garland's trousers. This seems equally credible to me.

2) "So who knows? Madison’s theories of institutional rivalries may still have some life in it after all."

Yep, BUT....

The "institutional" rivalries are now those of the PARTY institutions.

Poor Jimmy, I guess he was not much of a Party-ier. Ha!

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.