Presidents come and go but so, as defenders of DACA ought also to know, do judges.
One of the most interesting aspects of the Trump candidacy is the way in which it involves a Republican (or, if you will, the Republican nominee) employing tactics or promoting programs that are related in some way to those used by the Democrats at times. This makes Trump much less attractive to those who favor limited government. But it raises the question whether he might be able—unintentionally of course—to raise the consciousness of the Democrats to the problems with their approach.
Start with strong executive power. President Obama and the Democrats embrace strong executive power. There are many reasons for this. One is that the Democrats want a government that can pass large numbers of regulations and is quick-acting. Another is that the Democrats do not want to be limited by the public opinion constraints of the legislature. But, of course, executive power is dangerous and is problematic, especially when one is on the receiving end of it.
While Republican Presidents have used executive power, they have not used it—especially in the domestic sphere—to the extent that Democrats have. And they have not played as fast and loose with the law as President Obama has.
Many people have the impression, not without reason, that a President Trump would be willing to aggressively use executive power. This concerns the Democrats, especially since much of Trump’s agenda is anathema to them. Could this persuade the Democrats that executive power is a dangerous thing that should be constrained? It is hard to say, but if Trumpian executive power doesn’t persuade them, what would?
Now consider identity politics. This piece discusses Trumps outrageous comments about the Mexican American judge who is hearing the class-action against Trump University. Let’s be clear: Trump’s statements here are awful and should be repudiated by all people of good will. But the piece makes the argument that Trump is hoisting the Democrats on their own petard as to identity politics—that the Democrats engage in similar arguments all the time. if from a different perspective:
The implicit assumption underlying Sotomayor’s comment [about a “wise Latina”] and [Clarence] Thomas’ refusal to play to type is that there is a type—an expectation. By virtue of her being a liberal, a Democrat, a woman, and a Latina (wise or otherwise), Sotomayor’s voting pattern on the Court ought to be predictable. As, indeed, it is. So should Thomas’, but he declines to play his assigned role.
Trump is taking for granted—because he is not blind—that ethnic Democratic judges will rule in the interests of their party and of their ethnic bloc. That’s what they’re supposed to do. The MSM and the overall narrative say this is just fine. It’s only bad when someone like Trump points it out in a negative way. If a properly sanctified liberal had said “This man is a good judge because his background gives him the perspective to see past narrow, technical legalities and grasp the larger justice,” not only would no one have complained, that comment would have been widely praised. In fact, comments just like it are celebrated all the time. That is precisely what Justice Sotomayor’s “wise Latina” phrase was meant to convey.
The point here is that Trump does not seem to care about seeming rude or worse. He is willing to take the assumptions of the Democrats and use them to his own purposes. It is not clear what opportunities that will allow him But it will no doubt inflame the Democrats. Will it make them question those assumptions?
Finally, consider a third issue that differs a bit from these prior two in its character: the use of the media. In my opinion, the Democrats derive an enormous advantage from the media, which allows them to win elections that they would not otherwise be able to win. If the media were as disproportionately in favor of the Republicans, I could easily imagine a whole set of programs, involving quotas and other procedures, that Democrats would attempt to impose to promote media balance.
Trump, however, is a master communicator—not like the Great Communicator, Ronald Reagan, but still a master at getting his message across. And so far, at least, he has gotten the media to go along with him. Even if they stop cooperating, he is so good at these things—“Crooked Hillary” will be repeated endlessly, I predict—that he will greatly reduce much of the Democrats’ advantage with the media. In this case, the Democrats are likely to attack Trump’s techniques as unfair and inconsistent with the norms of political debate. Will Trump’s techniques lead the Democrats to realize that they too enjoy unfair advantages? This seems like a real long shot.
In sum, Trump is likely to use a variety of policies and techniques that the Democrats have employed. In a competitive political system, once one party uses a policy or technique, there are strong forces that will lead the other party to do so. While that will make the system look even less attractive, it should have been recognized by the first party that the second party would respond. And when the second party does so, the first party should recognize that it is in large part responsible for the second party’s response. The two parties may then decide to reform the system.
Unfortunately, that seldom happens—although there are exceptions. The Democrats used to love the Independent Counsel statute, when it was used against Republicans. When it was employed against Bill Clinton, they came to understand its failures and the statute was allowed to die. Will Trump lead to some kind of agreement between Democrats and Republicans on reform—on less executive power, on less identity politics, on fairer reporting? It might seem unlikely, but it is possible. Here’s hoping.