Trump’s Norm-Breaking: Real or Imagined?

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.

Reader Discussion

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on December 13, 2018 at 10:51:14 am

I've said it before and I'll say it again, the "norm-breaking" charge against Trump is nothing more than a fig leaf, having to the careless or progressive (but I repeat myself) reader a pleasing evidence-like quality about it, to cover the accuser's naked aesthetic loathing of the man. So the answer to Kesler's question is: Imagined.

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on December 13, 2018 at 12:27:35 pm

I am far more concerned about extra constitutional actions by a President or Congress than I am about any fictitious "norms" that people delight in accusing Trump of violating. I have not seen President Trump ignoring or violating the constitution as Obama regularly did. I have not heard of the IRS being mobilized against his political enemies even when it is obvious that the DOJ should be mobilized against gross violators like the Clinton Foundation. I have seen Trump trying to correct the usurpation of Presidential power embodied in Obama's unilateral decision to grant legal status to DACA men and women and many of their parents only to be swatted down by an activist and politicized federal court judge.
I say let's have more norm shattering and less constitution violation from ANY Potus!

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Steve W
on December 13, 2018 at 13:54:26 pm

I'll grant Dr. Kesler the proposition that some norms deserve to be shattered, but others are intrinsic to limited government. Refraining from calling upon the DOJ to arrest political opponents is a good one, for instance. I suppose that one can dismiss Trump's "lock her up" chants and retweeting memes depicting his own Deputy AG in jail as pure bluster. Or one can see it as pure demagoguery. Either way that manner of speaking is wildly inappropriate for a chief of state. It is also singularly ineffective because it provides plenty of evidence in legal proceedings that his policies are based upon personal animus rather than the public interest.

Is the visceral satisfaction of seeing Trump bludgeon his opponents worth the nasty example he is setting? Would you like to see Democrats carrying on like Trump in the Oval Office (think Maxine Waters)? If not, then perhaps some norms are worth defending, however opportunistically they are invoked by progressives opposing the Trump agenda.

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on December 13, 2018 at 14:10:00 pm

Kleinerman is apparently unable to see through the rather hefty fig leaf the American Bar Association has draped across its loins to obscure the rather leftward slant of that enfeebled and diseased organ.

As for the Federalist Society I have not observed any attempt to graft a fig leaf upon their organization.

As a losing football coach once exclaimed:

They are who we thought they were."

And Bully for them.

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Image of gabe
on December 13, 2018 at 15:57:11 pm

Well here is a norm worth SHATTERING. i.e., governmental agency overreach courtesy of the EPA and the Army Corps of engineers:


wherein we find that said agencies were awarded a $5,000,000 judgment against a wheat farmer for plowing his field under the rather fanciful and QUITE expansive definition of Waters of the United States (at times known to include pools of water collecting in garbage dumps, BTW)

The nasty, uncouth plebian aka The Trumpster has the temerity to shatter this norm.

Oh, the humanity of it all!!!!!!

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Image of gabe
on December 13, 2018 at 16:02:53 pm

For those who enjoy baseball and politics, here is a fun piece that sheds light on the practice of murder by newsprint - as well as providing conclusive evidence that slaughter - by - slander has a rather long and infamous lineage:


Wherein we find Ty Cobb, that immortal baseball legend to be anything but what the press alleged him to be.

Strike a familiar note, anyone?

BTW: Cobb was great because of the multitude of singles he hit - not homeruns. So far, The Trumpster has a nice little batch of solid singles and one or two extra base hits.
I'll take that on my team anyday.

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Image of gabe
on December 14, 2018 at 01:07:46 am

Changing policies is one thing; destroying norms is another. When the left or fellow travelers in the media conflate policies with norms to score points against Trump, that is disingenuous. But, while disagreeing with some of Trump's policies (family separation, blind support of Saudi Arabia and Israel), my real issue with him is over his conduct. Conservatives talked about character counting in the Clinton years. So does it count or should we give Trump a pass because of his policy agenda? Ultimately, if the economy remains healthy and Trump loses in 2020, he has no one to blame but himself. As Robert Merry writes today in The American Conservative, his indiscipline and petty demagoguery are frittering away a real opportunity for populist conservatism. All that norm destruction will be in vain as it lays the groundwork for a leftist Democratic ascendency.

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Image of cal_oc
on December 14, 2018 at 06:08:49 am

What is really sad is when you have professor of government, someone teaching our children, who doesn't know the difference between a Constitutional Republic and a democracy.

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Jim Lewis
on December 14, 2018 at 08:22:37 am

That Charles Kesler waited three months to respond suggests the degree of seriousness which one should accord Kleinerman's September, 2018 commentary in L&L. At that time, however, I took Kleinerman's essay not for what it is, grasping at straws, but as a serious commentary and replied critically in two lengthy comments, only the first of which, a general attack on Never-Trumpers, made it past the obstacle of L&L's botched electronic handling of reader comments. My second, more lengthy reply was aimed at Kleinerman's indictment of Trump and specifically rebutted the examples of what Kleinerman asserts is Trump's norm-crashing incivility. Alas, my 2d reply of September, 2018 was lost in electronic transit due to L&L's technical incompetence and, like Aristotle's lost manuscripts, will never benefit mankind.

Yet, I need lament the lacuna no longer; Kesler, himself, has now done the job of defending Kesler and done it very well (of course.)

Conservatism is blessed with Charles Kesler's writing in and editorial guidance of the singulaly impressive Claremont Review of Books. (It really is a sui generis publication and would make an excellent Christmas gift for everyone who does not subscribe.) But conservatism needs to hear Kesler's unique, persuasive voice much more often than in the CRB's quarterly prints and much more than occasionally elsewhere and in forums other than the New York Times (as in his NYT op-ed which Kleinerman clumsily assaulted.) The Gray Lady is long-dead and rotted, with but a few maggots now crawling through empty eye-ball hollows into her vacant cranium. Run and read by swine, she's neither an intellectual nor an honest platform worthy of gracing with conservative pearls.

I can only encourage Dr. Kesler to broaden his audience.

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Image of Pukka Luftmensch
Pukka Luftmensch
on December 15, 2018 at 14:18:51 pm

I second Pukka's *encouragement* AND CRB is a must read. I always "gift" a subscription", or more appropriately, a *prescription* for what ails the modern mind.

Comes today news of the latest norm-shattering by that wretched Trumpster.
It appears that the matrons, mavens and morons of DC are all aghast at the fact that under The Trumpster, "great chefs" are no longer called upon to prepare meals at the White House. Whereas past Presidents were accustomed (demanded?) to cuisinary delights more suitable to The Sun King, Louis XIV, The Trumpster prefers "fast food".
Oh, the shame of it all!

How about this kiddies?

It is long past time that we stopped treating our Chief Magistrate as an Imperial Lord, ruler of Vast dominions (primarily his subjects - US) and entitled to all manner of luxury, deference.
How is it that those very same scribes who over a period of several decades decried the Imperial Presidency NOW come to declaim that President who has apparently dispensed with some of the trappings of that Imperial Office.

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Image of gabe
on December 17, 2018 at 19:54:15 pm

Charles did another short response article recently. Here’s the link: https://www.claremont.org/crb/article/correspondence20/

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Image of CJ wolfe
CJ wolfe
on January 02, 2019 at 06:02:13 am

[…] grasped was the key role of mores in maintaining democratic life. It is true, as Charles Kesler has persuasively argued, that there are good mores and bad mores. But unless Publius was wrong about the presidency, a […]

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Image of Trump and the Habits of the Conservative Heart
Trump and the Habits of the Conservative Heart

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.