Shep Melnick’s review of Crisis illustrates, alas, the wide and widening gulf between our two constitutions and between their partisans.
My thanks to Benjamin Kleinerman for the kind things he said in this space about my work and about the Claremont Review of Books. I reciprocate his expressions of esteem. But I wanted to reply briefly to his criticisms of my New York Times op-ed on the subject of President Trump and the breaking of presidential norms.
Most critics had assumed that by “breaking norms,” Trump is breaking bad. I pointed out that “breaking norms is neither good nor bad except as the norms themselves are good or bad,” and that Presidents “are often called upon to adjust norms” to new political circumstances. “The crucial question,” I insisted, “is how the norms in question stand in relation to the Constitution and the common good. Are the norms President Trump is accused of breaking vital to American democracy and constitutionalism, or are they vital rather to the way government operates in contemporary Washington?” By the latter I meant progressive government loyal to the “living Constitution,” hostile to the separation of powers and other checks and balances, and ambitious to fundamentally transform the country.
Kleinerman doesn’t like my examples of Trump’s defensible norm-breaking, particularly the example he almost accuses me of inventing. He can’t believe that anyone would criticize Trump for “choosing from a list of potential Supreme Court nominees prepared by outside experts.” In his words, “I can’t remember any one complaining about” Trump’s use of the Federalist Society (and the Heritage Foundation) to draw up the master list, from which came, for example, Justice Brett Kavanaugh’s name. “So, it seems odd to defend him from an attack that has not been made and, even if it were being made, would be rather stupid.”
Yet before Kavanaugh had even been nominated—and two months before Kleinerman’s essay appeared in Law & Liberty—Noah Bierman, the well-known Los Angeles Times White House reporter, had written a long article for his newspaper pressing exactly that attack. In “Trump’s Court Appointments Have Been the Smoothest Part of His Presidency—Because He’s Had Some Help,” Bierman wrote that “Democrats and some legal experts are livid over the role Trump has given to [Leonard] Leo and the Federalist Society, seeing it as a break with traditions designed to reduce the role of politics in selecting a justice.”
He wasn’t finished: “In another break from norms, during his campaign Trump was explicit that he would choose justices who would overturn Roe and strike down restrictions on firearms.”
And finally, Bierman appealed to a Republican expert: “Douglas W. Kmiec, who vetted judicial nominees in the Reagan administration, said Ronald Reagan would never have allowed the Federalist Society to vet his nominees, thinking it ‘a betrayal of the presidential process.’” (Bierman neglected to mention that Kmiec had long since broken with the GOP and had served as President Obama’s ambassador to Malta.)
Politicizing the process, litmus tests over specific cases, and betraying presidential independence—three shattered norms to Trump’s discredit, allegedly, even before he’d come up with a nominee. Bierman’s piece, which ran on July 3, was not alone in making such criticisms. Around the same time, Senator Ben Cardin (D-Md.) denounced the President for “looking at a list prepared by an extreme group.” Earlier, the Center for American Progress had accused Trump of ignoring “the traditional vetting role of the American Bar Association” and of “disregarding Senate norms” by failing to run his judicial nominees by home state senators (the so-called blue slip process). As the Kavanaugh nomination proceeded, denunciations of the Federalist Society’s norm-breaking role in the process—part of Trump’s alleged assault on constitutional normality and the rule of law—became commonplace.
My point is not that Kleinerman needs to get out more, it’s that his reaction to this trumped-up charge of norm-breaking was in its own way eminently reasonable. It is “odd” to have to defend Trump from such charges, which are, in fact, “rather stupid” and obviously partisan. That was precisely the gravamen of my argument. The Left, as I wrote, treats offenses against “the etiquette of modern liberalism and modern liberal governance” as though these were high crimes and misdemeanors against the Constitution. For the people I’m talking about, the prevailing liberal norms are the Constitution—at least the only one that matters: the living Constitution.
The double standards are brazen. On the campaign trail Hillary Clinton promised to nominate only justices who would vote to overturn Citizens United. That drew nary a peep from liberal norm-lovers and opponents of litmus tests, because it’s only an offense against the Constitution if the case you want to overturn is Roe. As I noted, several Democrats “subsequently called for a new court-packing plan to retake control of the judiciary”—a “far greater norm-buster” than anything President Trump has done or said he would do.
Kleinerman worries that “conservative intellectuals” who want to see Trump get a fair shake are “bending their principles in the name of justifying the Trump presidency.” Fair enough, but show me the bent principles. He alleges that I defend Trump’s breaking of picayune or “inconsequential” norms but say nothing about the more serious ones the President transgresses.
In the short space of my op-ed, I defended his “disturbing our NATO allies’ slumber,” but Kleinerman seems to agree with me on that one. I regretted the way Trump treats members of his own administration, but noted that he had been provoked by the crusade against him led by elements of his own executive bureaucracy. I defended his withdrawal of former CIA director John Brennan’s security clearance as in keeping with the President’s constitutional power, and duty, respecting foreign policy. Doesn’t the Constitution say something about the executive power being vested in the President? Trump is clawing back aspects of that power which have been redistributed to the unelected experts in the agencies and departments (and to political appointees of previous administrations, like Brennan) who often have agendas of their own.
Kleinerman’s own example of an important norm being violated by this administration is that Trump insufficiently resembles George Washington. Okay, granted! Even Trump wouldn’t deny he’s chopped down a lot of cherry trees in his day, and not always told the truth about it.
What interests my friendly critic, however, is something else: that Trump doesn’t embody “the unity of the nation rather than merely the victory of one side”; that he falls short of the “captain-of-the-ship norm” because he doesn’t calmly and with dignity “guide the nation . . . through still and rocky waters alike.”
Perhaps . . . but don’t most Presidents fall short of the father of our country in this respect? Consider such recent unsteady captains of a listing ship of state as Lyndon Johnson, Richard Nixon, Jimmy Carter, Bill Clinton, George W. Bush, and Barack Obama. Of course, falling short of the standard doesn’t discredit the standard, and is no excuse for Presidents or anyone else to ignore or disdain it.
Still, confronted with the Kavanaugh hearings, how is a President able to “unify rather than divide, and to represent all of us at our best”? As Kleinerman knows, sometimes in democracy it is necessary to divide public opinion in order to unify it on higher or sounder grounds. This is what Washington himself counseled during the ratification struggle. By attempting to liberate republican government from distortion and enfeeblement by progressive norms, Trump is trying to faithfully execute his office and, in his own way, to strengthen the Constitution and its sustaining customs and norms.
But his efforts can be rough and ready, and involve a division of public opinion far more serious than many Americans realized or may be prepared for. That prospect scares the bejesus out of a lot of people. That is the dilemma that all supporters of the original Constitution, regardless of their view of this President, now have to face.