Dr. John C. Eastman is joined by a panel with Professor John Yoo, William Huan, Marcella Burke, and Michael Huston to discuss the final opinions of the Court's 2015-16 term.
Hemingway and Severino: On Kavanaugh Confirmation, Identity Politics, and Pumpkin Spice Lattes
The American Mind Podcast
In this edition of The American Mind podcast, host Ryan Williams sits down with Mollie Hemingway, Senior Editor at The Federalist, and Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, to discuss their new bestselling book, Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court.
During the conversation, Williams, Hemingway and Severino discuss the unprecedented partisanship from the Left on the judicial confirmation process; the impact of the Clinton impeachment inquiry on the crusade against Justice Kavanaugh; the overjudicialization of politics and why it has transpired; DOJ malfeasance and the rise of “expertise;” law enforcement and the administrative state; the Kavanaugh confirmation fight as a proxy for the power of identity politics; the politicization of the Supreme Court; what Pumpkin Spice Lattes tell us about the state of American civil society and politics; the criticality of a common understanding of human nature, the Constitution and American identity; and much more.
Recommended Reading: Justice on Trial
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“The team that was investigating Russia legitimately believed in this story, and they were hoping that when Comey briefed the President-elect that he would say something they could use as part of their investigation. Top echelons of the F.B.I. and the people working on this really fell for this story, and yet they’re supposed to be taken at the experts who get to decide whether we get to have the president we elect and whether he gets to run foreign policy as he wants to, or just have a normal administration; and it really speaks to their power and the abuse of power that is possible there.”
[Short musical intro]
Intro to Podcast by Williams:
Are you trying to understand the principles that guide American politics? So are we. Welcome to The American Mind podcast. I’m your host Ryan Williams, the President of The Claremont Institute and publisher of The Claremont Review of Books. For all of our writings, programs, and all that we do, go to www.claremont.org, and thanks for listening.
In this episode, I sit down with Mollie Hemingway and Carrie Severino about their new best-selling book, Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court. Mollie is a senior editor at The Federalist, and a Fox News contributor, and also, I’m proud to say, a former Claremont Institute Lincoln Fellow. And Carrie is chief counsel and policy director of the Judicial Crisis Network and a former law clerk to Justice Clarence Thomas.
Mollie and Carrie have been on a grueling media book tour for months doing many podcasts and radio spots, so rather than rehash the unpleasant and unprecedented spectacle of Kavanaugh’s confirmation in all of its gritty detail, I tried to steer us towards Mollie and Carrie’s unique perspectives from both a journalistic and legal angles, while also discussing the large cultural, political, and philosophical regime-level questions that were raised by our most recent Supreme Court confirmation ordeal. Given the topic and the stakes for our politics, it’s very fitting that we recorded this at The Federalist Society’s podcast studio in Washington, D.C. I want to thank Leonard Leo, Gene Meyer, and the whole FedSoc team for all their wonderful work and for their graciousness in facilitating this conversation.
Williams: Well, Carrie and Mollie, thanks for joining me on The American Mind. I wanted to talk about this wonderful new book that you all have out. It’s not that new. You’ve been gruelingly book touring now for months, and it’s had wonderful success—Justice on Trial, about the whole Kavanaugh experience. I just want to state for all our listeners who haven’t bought the book yet, they really should. It’s wonderfully well-researched. Not only does it sort of give an exhaustive and fair treatment of this recent ordeal of the Kavanaugh confirmation that the country had to struggle through, but I think more importantly, it paints the picture of this predicament that we’re in with our kind of circus of confirmation hearings that some would argue started with Bork and have just gotten worse and worse since.
But I wanted to start on a lighter note just to limb my praise for the wonderful details in it. I never thought I’d discover what Ben Sasse wrote his dissertation on by reading a book on Kavanaugh’s confirmation. It’s one of many interesting details throughout, but I thought we’d start with what in general was most enjoyable about writing the book, and maybe what was most grueling about writing it.
Severino: Well, it was an amazing opportunity to get to write it in the first place, and I think what was most enjoyable is the partnership in many ways that came out of this. Mollie and I knew each other beforehand, and we had worked together, you know, just talking about the courts, but it was so exciting to get a chance to work on it together with her. I feel like I got a crash course in journalism in the process, and I feel—being on the other side of the microphone when I’m used to being the one who’s being talked to by journalists. I got to ask people questions, learn how much fun it is to have an excuse to call anyone up and say, “Hey, tell me about your experience with when, you know, working in the Reagan administration, or constitutional law, or you name it.” So that was really a lot of fun. I think I know what your fun moment is, so…
Hemingway: I totally agree that what worked—what I loved about it was working with Carrie, and I think what we both probably enjoyed the most was interviewing people. We got to interview more than 100 people, including the president and the vice president, Supreme Court justices, senators. It’s just a totally different interaction that we had with them than we normally would, and even just—these are things that very few journalists get to do, and to be able to do this, and do it for a long period of time—meaning we got to interview some of these people multiple times, for many hours, and really get to understand this story.
The frustrating part about it was we had an intention for our own purposes—we’re both very busy people, and just for the importance of the book—to do it relatively quickly, and so this was an amazing amount of work to do in a very short period of time. And Carrie’s breadth of knowledge about Supreme Court history certainly was very useful for making it not just a reported book but one with a lot of depth, I think, and I’m just very grateful I got to work with her.
Severino: The time frame was such that toward the end I remember my kids were like, “Mom, it’s been so long since you’ve read us a bedtime story.” So I’m going, “Okay. We’re reading Justice on Trial.”
Severino: So they literally got to hear the story as their bedtime story as I’m going through and making edits, and they had some good suggestions actually in the process, so…
Williams: Well, kids, we’re going to proofread the galleys. Yay.
Severino: That’s what we were doing.
Williams: I want to get both your takes on this given your different areas of focus, whether it be in journalism and media or the law—and that sells what you do short, Carrie, so I don’t mean to suggest that. What was the most surprising thing you learned, Mollie, about the media side of this whole ordeal, or the most interesting thing maybe you learned? I mean you’ve been a tough critic, of course, of the media’s handling of the Trump administration in general and their sort of, almost preternatural instinct to report in a kind of biased way, but it kind of got dialed up to 11 on the whole Kavanaugh thing.
Hemingway: It’s almost difficult to think of one thing because it was a such a tsunami of failure across so many different media platforms. Recently there was a story about Lawrence O’Donnell running on air with a very poorly sourced story that he could have very easily figured out wasn’t true, and he’s at MSNBC. And it reminded of another MSNBC story where one of their reporters just read an anonymous allegation against Brett Kavanaugh on the air without doing any diligence or fact-checking. The standards for what to cover and how to cover it were just obliterated.
We tell the story about how also NBC had knowledge of—so at some point in the process, there’s an accuser who claims that Brett Kavanaugh ran a serial gang-rape cartel through the suburbs of Maryland, and it was an absurd claim that should have been treated in an absurd—as absurd as it was. It was not, and NBC News knew that Michael Avenatti—that woman’s lawyer—claimed that a second source would support these claims. They knew that second source did not support the claims, but they sat on that story until after the confirmation. That’s just indefensible, but there are so many bad examples of media failure.
Williams: You all really detail it—it’s pretty damning in the book. You know we’re almost exactly a year away from the beginning of the confirmation hearing. I remember I was in D.C. at the time, but I had forgotten a lot of sorted details of those few weeks. It’s really remarkable.
And Carrie, what about you? You’ve been in the fight, the sort of trenches of judicial confirmation battles with your work at the Judicial Crisis Network for years. Was there anything—Kavanaugh was kind of the pinnacle, I think, of malpractice, both politically and journalistically—but were you surprised by anything in this whole process? I would think at this point you’re pretty in your—
Severino: To be honest I was surprised that it ended up being the pinnacle. So going in to this process—and I would go around talking especially to a lot of the organizations and the other groups who were interested in it, telling them what to be prepared for and be ready for, and I said, “Look, there are going to be people misconstruing his record.” Check. They did that. “There are going to be people telling smears about him and lies.” Check. And I always stopped myself though.
I clerked for Justice Thomas, and so I—rhetorically you just want to go to the next level and say it could be the worst confirmation process we’ve even seen. And then I would always think, “Nope. That’s not going to be accurate. Clarence Thomas’s is the worst confirmation process in history.” And to my amazement, they actually did it one worse, both in terms of the level of things they were alleging—it was the same in terms of the “Hey, we have an alleger with stuff leaked by the Democrats, who has no corroboration and, in fact, has a changing story and holes in the story.” So, pretty similar in terms of the quality of the facts they were using. But now they were claiming he was a rapist, and there were people who, you know, jumped on board and got on a real bandwagon with that.
So I think that is the part that got this much worse, but another level—I think there were a lot of people who had been watching this process who—we all knew it could get worse. All the stars were aligned for that just because it was Kennedy’s seat because if you look historically, it’s always when the Court stands to shift to the Right that things get wild. So if you’re replacing a swing justice, like when Judge Bork was nominated—swing justice—if you’re replacing a justice of the other end of the philosophical spectrum—like Clarence Thomas replacing Thurgood Marshall—when things are shifting, things get crazy. So Kennedy had been the swing vote for so long, we knew whoever was confirmed would face World War III, and that’s kind of what we got.
Williams: Have you seen anything similar—I mean Kavanaugh sort of overshadows it all now. I know your organization has been working on confirming or helping to get confirmed solid Constitutionalists and judges across the federal courts. Has that gotten worse, too, in recent years?
Severino: I’m afraid to say it has. On a positive note, we don’t have the delay of nominations like we did with the filibuster during the Bush years, where people like Miguel Estrada are getting filibustered ad nauseam, but that’s simply because of a procedural change and thanks to Harry Reid. So I appreciate that, but the tactics are getting worse. I mean we’re seeing blatant anti-Catholicism and people trying to have religious tests for office, for example, with Amy Coney Barrett with attacks on the Knights of Columbus. We’re seeing anti-Semitism coming out in a recent nominee, for example, against Steven Menashi and the mis-construction of people spelunking through everything they’ve written going back to college or probably even high school.
It is getting a lot worse. The level of opposition, even to district court judges, the level of procedural hurdles and roadblocks that democratic senators are putting up—district court judges used to be—everyone kind of agreed the senators and the White House are working together closely on this. We’re just going to get them done in batches and voice votes. Now every single one of them—some of them even if it was someone who was a previous Obama nominee—they are getting dragged out just in the process of let’s make this as painful and as time-consuming as possible. That is a level of partisanship we haven’t seen before.
Williams: Right. Yes, it’s kind of a scorched-earth policy, and this is actually a nice lead-in to my next topic. You mentioned district court judges, which—normal practice before this as you allude to was just you win the presidency, you get to appoint district court judges, with some exceptions for senators flagging folks, right?
Severino: Well, traditionally actually the state senators have a lot of influence over those district court picks. So that’s part of the reason they went so smoothly. The two senators from the state would work closely with the White House, so there would always be a consensus pick pretty much, and none of the senators is going to want to step all over their colleagues because they get that ability as well. So it used to be just okay, here we got a bunch of judges. All in favor? Aye. Moving on.
Williams: Right. Well, in the book you all recount against—one of the early arguments when the vacancy came up against Trump being able to appoint anyone was that—from the Left—was that a sitting president under investigation shouldn’t be able to appoint a Supreme Court justice. So until Mueller’s work is done on the Russia investigation, we shouldn’t allow anyone to be appointed, and you point out in the book that that would have invalidated, what, 12 of the last 14 or something like that—
Severino: Yes, certainly the vast majority of the Supreme Court.
Hemingway: It was an argument that was taken so seriously—it was put in The New York Times, The Washington Post, people were saying it on T.V.—without thinking through the fact that basically all of the recent nominees were—all of the recent justices were nominated while their presidents were under investigation, whether that’s Bill Clinton, who spent much of his presidency under investigation, or George W. Bush. It’s also dangerous to make that a rule that you can’t do that because it’s so easy to place someone under investigation that it would be a political tactic that could be exploited even more than it already is.
Williams: Claremont Institute’s Senior Fellow John Marini has made the argument, really since the years after the Nixon debacle, that one of the themes of modern liberal opposition—and not just liberals, but conservatives, as well, or the G.O.P.—in the last 40 years has been the legalization of politics rather than the old way of politicizing politics. What I mean by that is you win an election you should be able to influence policy, appoint judges, but one of the ways that we’ve stymied the normal operation of politics, that is the marshalling of a political national electoral majority to actually get things done, has been to throw legal obstacles in the way and say that—it’s just another sort of delaying tactic, and it’s grown up along with I think the over-judicialization of our politics, as well.
Hemingway: You’re absolutely right that this is something that affects republican presidents more than Democrat presidents, but it also definitely affected Bill Clinton; and there’s an interesting Kavanaugh tie-in, and it becomes part of the confirmation battle because he worked on the Whitewater investigation that scrutinized Clinton, and that is actually where so much of the opposition to Kavanaugh arises. The Clinton-connected people took that so personally, and I would say not unreasonably so. I don’t know if everybody would agree, but that was something that they couldn’t quite get over, and it becomes something that motivates their opposition to him and then gets mentioned by him when he has the re-opened testimony where he kind of points out it is this Clinton issue that is causing a lot of the drama.
But he himself ends up writing something during the Obama era about how presidents should not be persecuted—or not persecuted, but you know, gone after too much as presidents. They need space to govern. People then said, “That’s why Trump nominated him because he thinks this guy will let him get away with murder,” and nobody really thought through well, he wrote this during the Obama presidency, and it was kind of a—not a manacle—but upon reflection we need to think through how we’re doing these things.
Williams: Yes, and the next example’s interesting, too. It plays in to—and jump in anytime, Carrie, with what you think of this—but it plays in to the Russia investigation. I mean I think it’s really post-Nixon that the D.O.J. as an independent arbiter of even presidential power grows up and grows sort of mythically large, and so we run in to it with the Russia investigation where you have the partisan alignment of the Democrats, who are obsessed with Russia and also want to say that Trump’s interference at all in controlling his own justice department is somehow de facto illegitimate. I think this is all of a piece for the last 40 years, although with Russia and Trump it went to a whole new level.
Hemingway: It’s just stunning to think through what went on here in recent years. The Justice Department really botched two different investigations: first with the Hillary Clinton investigation, and then, perhaps as an over-reaction, targeting the Trump campaign, then trying to cover up the targeting of the Trump campaign through investigations and setting up of a special counsel to protect the agency. Every single thing that we get coming out about what really went on is bad.
Recently the Inspector General came out with a report about James Comey showing just a complete abuse of power, lack of concern about rule of law, violation of civil liberties, and of course, a lot of this was done by keeping the people from being able to have a check on this powerful law enforcement agency. We do have political control of law enforcement. That is important to have political control, but it was turned in to something that was bad, and people in our media, rather than speaking truth to powerful law enforcement agencies, said that any accountability for them was obstruction of justice, and it enabled this horrible system of people just running wild and violating people’s civil liberties.
Still we don’t have any accountability for that. It’s part of the subtext of why people are so upset about the different standards for different people. We don’t have one rule of law that applies to everybody. We have two systems. It’s bad.
Williams: Yes, and I will touch on this at the end of this discussion, but it has something to do with, I think, the rise of expertise in governments. We’ve come to see the Justice Department and law enforcement as sort of experts in legality in a way. So their judgment on things legal, especially in light of Trump and Russia, was presumed to be correct, right? Everything from the incredulity that somehow Trump could override the intelligence communities’ process for security clearances when it was clear that half of their business was just to obstruct security clearances for incoming folks—you know, they’re all of a piece, I think.
Hemingway: This is totally unrelated to the book, but I’d kind of like to just point out something from this Inspector General report, as well. It reveals in detail what James Comey was doing in terms of recording different interactions he had with the president, and the whole interaction with Donald Trump begins with a pre-inauguration meeting where James Comey pulls Trump aside and briefs him on just one salacious part of this infamous dossier, which was completely made up. I’d always thought that that meeting was held for the purpose of leaking it immediately to CNN because that’s what happened within hours or, you know, a day. CNN knew about this meeting, giving them the pretext they needed and, in fact, had openly stated they sought to put this dossier out—the fact of the dossier out in to the public, and it really got the whole Russia hoax going.
But what we learned from this Inspector General report is that the team that was investigating Russia legitimately believed in this story, and they were hoping that when Comey briefed the president-elect that he would say something they could use as part of their investigation. It is so interesting to learn that the top echelons of the F.B.I. and the people working on this really fell for this story, and yet they’re supposed to be taken at the experts who get to decide whether we get to have the president we elect and whether he gets to run foreign policy as he wants to, or just have a normal administration; and it really speaks to their power and the abuse of power that is possible there.
Williams: Yes. Have you, Carrie, in your work—have you seen any or observed any sea change at all amongst lawyers and how they think about the judiciary and lawyering in general, whether it be at D.O.J.’s business or whatever, with the insane two years we’ve had with the Trump and Russia investigation?
Severino: You know I do think actually the problem of experts running things in this sort of technocracy goes through not only that, but is a theme in to the problems we are experiencing now with the administrative state. I think it’s a similar problem of it seems like it’s an attractive idea of, “Oh, great. We can just have the experts do something. Get the politics all out of it,” and we’re kind of getting to a moment; and I think that’s something that’s being recognized by a lot of people and is certainly a major theme even as you just listen to the confirmation hearings of these new current judges. People are realizing the administrative state isn’t this wonderful, neutral, expert zone. It’s: (a.) constitutionally very suspect, and (b.) there is no such thing as this platonic expert out there. What you’re getting is just politics by people who are not accountable to anyone. This is why it’s not a constitutional system. Our Constitution actually has elected representatives making laws and signing bills and should be running the administrative state.
So it’s these ideas, and even Mollie’s describing this idea of we have this neutral group that can’t be controlled by anything. Well, that’s exactly, interestingly, what Brett Kavanaugh was pointing out is the problem in some of these agencies—the idea of let’s design, for example, the C.F.P.B. as an organization that’s going to just be free-flowing, independent. It’s kind of like, you know, these dystopian futuristic movies where the robots take control. It’s like they’re supposed to be helping and serving us, and then suddenly they develop a life of their own. These administrative states are developing a life of their own, and when they don’t have any authority checking them, that creates constitutional issues, and it creates a whole independent metastasis within the government.
Williams: Right. The C.F.P.B.—the Consumer Financial Protection Bureau, right? Which has a single head and funds itself from fees it collects and fines it collects, instead of getting—
Severino: So no power of the purse, and there was a serious case about well, can the head of it even be removed? If there’s no removal power, no powers of the purse connecting it, it’s just been set free to govern by itself.
Those kind of observations at the D.C. Circuit are what really brought Brett Kavanaugh—one of the many things, there were a lot of people looking at him for a long time—but that was something that a lot of people honed in on on Kavanaugh’s record and said, “Those observations are the kind of things we need in the Court.” And they were some of things that the Court itself had already adopted his reasoning in, so we were seeing this movement of the Supreme Court as well.
Williams: And the C.F.P.B—if I recall correctly—was, in substantial ways, Elizabeth Warren’s baby, right?
Severino: Oh, yes. Yes. She’s the mama of the C.F.P.B. baby.
Williams: Well, good. I wanted to touch on—at the Claremont Institute we’ve been writing a bit in the last six or eight months or so about multiculturalism as an ideology and especially identity politics, I think. You don’t have to agree with our argument, but identity politics kind of cropped up in this fight over Kavanaugh, and it was even telegraphed early before the hearing started. I just thought one representative quote that you all put in the book was from, I think, a Teen Vogue columnist of all things, but she captured, I think, the spirit of many of the activist opponents of Kavanaugh. She equated texturalist originalism to white supremacist patriarchy.
Hemingway: No, that sounded absurd, but is that not what The New York Times is doing right now with their project to redefine history?
Williams: Yes, whether it be 1619, or even now the Tea Party now as we all know was primarily animated by racism, according to The New York Times.
Hemingway: Just to make a media point of this, too, it’s not just The New York Times. You had so many other reporters assert without any evidence at all, and clearly no knowledge of the Tea Party, asserting that it was a racist movement. There’s no evidence to support this.
Williams: Yes. I think I found myself marking in the margins of your book over and over again “new rules,” and what I mean by that is—and this is a point our Board Chairman Tom Klingenstein has made in print—that to understand the Kavanaugh fight properly, you really have to understand two sets of rules, not disagreement over application of them. The set of rules on the identity politics Left these days is believe all women. Especially white, heterosexual, cisgender males—forgive me for that term—they’re sort of suspect out of the gate, especially when it comes to relationships with a more oppressed class of beings, i.e. women of any color.
So I think on one side it was—the Me Too Movement dialed this all up and was full of plenty of horrific stories, but I think the deeper ideological part of it was that Blasey Ford was presumptively to be believed because she was in a position of relative less power than Brett Kavanaugh. While the Republicans were arguing about due process, I think the Left just was thinking about this in a different way as a matter of justice or first principles. What do you all think about that?
Severino: Well, I think it’s both that there are those two different sets of rules, but I think they’re also—something to ask is does no one of the Left believe in the presumption of innocence anymore? I think part of the problem—and this antithetical to the rule of law—is that they do believe in it but only for people they agree with. So it’s really a set of rules for people we like and set of rules for people we don’t like.
I mean a Virginian in our—right after the Kavanaugh confirmation went down, our state attorney general had a claim of much more explicit—it had a lot more detail in it it sounded like against him of sexual assault, and because of the situation where if they insisted on his resignation, it might have actually devolved on to a Republican to take the position. Suddenly we weren’t as interested. I mean, she even had the same lawyer. Debra Katz was her lawyer—
Williams: [Laughs] Oh, I didn’t realize that.
Severino: —and somehow she didn’t do as good a job in this case of making as big of a public stink about it—but it was really, “Oh, well, we’re happy to give presumption of innocence, but only if we like what you say.” Of course, under the rule of law the whole idea is whether I agree with you, disagree with you, whether you’re part of my identity group on whatever level or not, we all play by the same rules.
Williams: Right. So there’s that cynical just power of politics side of it, too.
Hemingway: It’s a great way to look at it though because it was so weird to watch media coverage of the allegations and the different standards that they held different people to. So for Brett Kavanaugh—for whom there was no evidence, by the way, that Christine Blasey Ford had ever even met him, much less that there was an assault, there was no evidence of even actually having met—his yearbook gets gone over with a fine-tooth comb. Every stupid joke that he and his buddies made gets front page coverage, and the treatment of Christine Blasey Ford, who has—and this does not necessarily speak to the veracity of her allegation for which there was no support that she was ever able to provide—she had political leanings that were obscured. She had serious problems with the story and the holes in the story, and the media just thought that was no problem. At one point they even say something like, “The inconsistencies in her story make her more believable,” which is absurd.
Williams: Yes, and then you all brought out—which I had forgotten or never learned—the competing yearbooks. The yearbooks from her time at prep school were—you know, there’s just plenty about partying and living the life that the other side used about Kavanaugh and his yearbook to paint this view of freewheeling sexual predatorism.
Hemingway: Yes. We know people who went to Holton Arms and Georgetown Prep—and the 80s were a different era and whatnot—but oh my goodness, the Holton Arms yearbooks are crazy-appalling. I mean I hope they’re joking about all the sex, drugs, and alcohol—
Hemingway: —but there’s a lot of sex, drugs, and alcohol in there.
Severino: Yes, and again that doesn’t necessarily go to the veracity of the claim either—
Severino: —but neither does the contents of his yearbook. It’s like if we’re going to scrutinize one down to the details, why are we calculatedly ignoring the other? It’s because it’s two sets of rules.
Williams: Yes. As far as due process is concerned, to borrow a term from the modern campus Left, to use one and leave out the other is problematic, right?
Williams: Well, good. I also wanted to talk a bit about—you alluded to this already, Carrie—about the administrative state. You all conclude the book with a discussion of why we’re so exercised about these battles, and why we have been for about 40 years or so, about who should sit on the Supreme Court, and your argument is that as the federal government does more and more and the administrative state—which is this more or less free-floating fourth branch, which increasingly runs our lives, at least at the federal level—makes rules as Congress used to, imposes penalties and costs, enmeshes people in all sorts of litigation as they try to overcome this endless regulation—as this is all grown up and Congress has stepped back, the courts have taken up a role. For 30 years or so at least they’ve been pretty deferential to the administrative state, but your larger point is that we shouldn’t be surprised that as the federal government has blossomed or ballooned, the courts have a larger role in this, and to the extent that they’re the only thing left to police, however imperfectly, this new super-legislature, we shouldn’t be surprised that these stakes are so high.
Severino: Yes. There are a lot of factors that go in to upping the stakes. One of them is the federal government does more than it did 100 years ago, 50 years ago, and so we have more occasions for federal law to have a major impact on people’s lives. So it’s occupying a larger percent of the territory. One is things like the administrative state and the idea that that’s what allows the government to grow so out of control. If you had to actually pass even one of those laws through Congress, you’d have a whole lot less law, but they can do it at a rate that literally can’t even be counted. I mean we don’t even know exactly how many regulations there are because they grow so quickly.
Also, the amount of federal law that affects people has grown because the Court itself has grown the law and particularly in terms of having an expansive reading of the Constitution. If the Constitution and the breadth of the constitutional impact was really limited to the amount of stuff that’s in the document and in its text, we wouldn’t have as much implication; but there’s an urge and a temptation to constitutionalize everything—this idea that it’s almost, “Well, how can it be constitutional in this country to do fill-in-the-blank something that I think is bad?” Then the Court feels this pressure to make unconstitutional or find some way to make illegal the things that they disagree with. The fact that it’s difficult to pass laws is a temptation to amend law, fix law, update it, tweak it a little from the courts rather than actually letting Congress do it because they don’t trust Congress to do it, or they think it’ll take them too long, or whatever.
All of those add power to the courts that were never intended to be run by our federal courts, and every time the justices act in political ways, in particular—so any time they’re making these decisions that should be the Congress’s in terms of amending law or amending the Constitution, God forbid—they are doing something that was supposed to be reserved for the American people. That makes them like politicians, and as Justice Scalia said, if they’re acting like politicians, it’s no surprise then that we would treat them like politicians as they’re selected, and that’s what we’re seeing. We’re seeing a political campaign instead of choosing judges who are going to simply be neutral arbiters of the law.
Hemingway: This could be Trump’s biggest legacy, at least at this point, that his two appointments to the Court are so good on this particular topic, and they’re good in complementary ways. One, Gorsuch writing beautifully and persuasively on it, and Kavanaugh really crafting his opinions in a way that are persuasive to a broader group of people, and they both show such concern about this—that it could be—it’s a reason for hope in a time when there aren’t that many reasons for hope.
Williams: Yes. I mean the courts won’t save us. Congress will have to get involved. Of course, we should mention that we’re here at a podcast studio in the Federalist Society offices in Washington, and getting Congress back in the game—the Article I Project, as they call it here—has been a big focus of FedSoc, and it’s some of their most important work, I think.
We alluded to it—or your alluded to it, Carrie—but I want to bring up the topic of judicial supremacy, which I think is wrapped up in all of this. Let me run this by you. It’s not my theory. I’ve stolen it, of course, but I wonder what you think of it. I think the inflection point many identify is Brown v. Board of Education, which the line on it, which forever I agree with, is a great result, but terrible reasoning. Because the Court itself began to think of itself as righteous in doing justice, the notion that all good things should be constitutional and all bad things should be unconstitutional sort of grew up with that correct decision to fulfill the promise of the Declaration and desegregate.
Then you have Roe about 20 years later, which I think adds fuel to this fire because in the case of Brown v. Board and in the subsequent years, the Court had a new self-importance, and then when they wade in to this most-controversial social issue and sort of remove from the public sphere, it just adds to this—to two things at least, which is it adds to the Court’s temptation to continue to be the last word on the most controversial topics, and then of course, alongside the rise of the administrative state, it just pours jet fuel on this conflict over nominees and justices.
Severino: Yes, and it’s ironic—and Justice Ginsburg herself has commented on this, obviously a very big defender of abortion, and I think she even agrees that there is a constitutional right to abortion, but she disagreed with the way that Roe did it. One of the reasons is that she said, basically, the country wasn’t ready for this, and far from taking it out and kind of diffusing a topic that was of such debate publicly, it poured jet fuel on it. It just made people more angry because then instead of being able to debate this topic, to have those issues, or to even have compromises—I mean if you look at where the American people are on this issue, the Supreme Court has created a much more extreme regime than anywhere in the country, except perhaps New York and maybe Illinois. It doesn’t have to be an all-or-nothing issue, but by making it a constitutional issue, the Court did that, and it actually probably prolonged the debate and ossified it in a way that it’s still, forty-some years later, it’s still a huge factor in our politics. I think it would not have been this way if it had been left where the Constitution leaves it, which is in the sphere of the elected branches, and let the people’s representatives figure out how to handle it.
Williams: Right. Our give-and-take of deliberative democracy where we argue about justice and we each get half a loaf and then we fight another day, rather than have one solution for all 50 states.
I wanted to end on this. So we talked about the administrative state; we talked about its effects, I think, on the confirmation process, but I wanted to run this by you both and see what we think of this. We have this different understanding of the judiciary, I think, on both sides of the aisle, a different understanding of maybe the democratic process, but I think they get to a different understanding of rights, which gets to a different understanding of human nature in a way.
So I think it’s no doubt that we’ve been increasingly polarized on Right and Left. The two parties have sorted themselves ideologically over the last 40 years so that you have the distance between the moderate Republican and the moderate Democrat in Congress has grown wider in the last 30 years. That’s part of the reason for the rancor of our partisan politics, but I think at root we have two notions of a constitution: the old constitution, as my colleague, Charles Kesler, has argued, is kind of the Founders’ Constitution as amended; and then the new constitution, which you can call many things—the living constitution, the progressive constitution, etc.. But I think at root there’s two notions of human nature: one relatively fixed with rights that always need protecting and tyranny always being a threat, and the other with this sort of notion of history that we’re moving beyond the old problems of partisan politics, we’re moving beyond the tyrannical government, and so that, for example, would lead to the perfectly reasonable—from the Left’s point of view—conclusion that of course you can have neutral administrators who aren’t political because human nature is moving towards the rational administration of government and away from these old fights about justice.
Severino: A rational administration of government which magically looks a lot like exactly the policies I advocate for, right, in every case.
Williams: So I think that may be—it’s not laid on top of the problems we’ve been discussing but may be at the root of them, and I wonder what the prospect is for going back. Well, you can never go back in politics or human things, I don’t think, at least not fundamentally, but I wonder how we solve this problem? Or is it just a matter of—I’ve argued in print previously—if you look at American history it might just be that one side has to triumph in its vision of justice and politics. You have realigning elections and one side sort of wins the argument for a couple generations and lowers the temperature; but we’ve been in gridlock here for 30 or 40 years, so…
Hemingway: This is a very much out-of-left-field way to look at this, but I recently watched a Dave Chappelle special called “Sticks and Stones,” and it was a full on attack on identity politics and used the means that were used by him were to just make fun of everybody and get everybody laughing at themselves. When you have these different conceptions of human nature, one of the things I find so interesting about the progressive understanding of human nature as evolving is how negative it views the humanity of its opponents and how scary and frightening this world is where people don’t just disagree about a particular thing but they must be evil. Everything is getting redefined—like literally every single thing I saw—most recently pumpkin spice lattes were redefined as white supremacy—
Hemingway: —that this untenable. This can not continue, but sometimes the means by which people back away from a really dangerous ideology is not necessarily political. I kind of wondered if it is such an unbearable situation for so many Americans to have this tension and onslaught and everybody being attacked constantly—everyone who’s not on the Left being attacked constantly. There might be a push for some means out of it outside of politics, for instance, comedy or something like this. I don’t know.
Williams: Right. Some cultural solutions to at least diffuse the—
Hemingway: But that’s probably not likely. It’s probably going to be not such a smooth transition to whatever happens next, but they can not co-exist is the problem.
Severino: We have to be able to have an understanding that we could disagree on issues without the other person being evil. Sometimes I think it’s just a lack of being able to have a debate because if the only debate is ad hominem—that’s kind of where we are, where if you disagree with them, it’s because you’re a racist, sexist, bigot, whatever. That’s a sad place.
I think partly sometimes it’s also because we have also suffered a loss of social and civic societies, that people used to have friends and neighbors and people they went to church or worshipped with in one form or another who they disagreed with on politics maybe, but could still be friends with. It used to be you didn’t want to talk about politics and religion because you had friends who were of other politics and religion, and nowadays I feel like we’ve just retreated in to the only people we associate with are the people we agree with. That makes it that much easier to then just assume, “Well, that’s because everyone else is a bad person.”
Hemingway: I think though if you look, you know, back a hundred years, the seeds of this were sown. People might have thought they were able to keep progressivism at bay, but they really didn’t, particularly in education, the growth of the administrative state. As these things have strengthened and as the cultural acceptance of progressivism has increased, I think you’ve seen the Left itself seek to clarify what it really believes. So whereas people were previously aligning themselves with progressives and not realizing how radical it was, now it’s becoming more clear; and it’s still dominating quite a bit of our discourse.
They certainly have control of the media, complete control of the academy, and other strengths and strongholds. The conflict can be avoided through outside threats or through other things that get people thinking about other things for a little bit, but this does have to be resolved at some point. It has to be resolved and that fundamental level that you were saying, Ryan, this understanding of what human nature is, of what our Constitution is.
Right now the most powerful newspaper in America is full on going after the U.S. Constitution as a document that can not continue in any way, that everything that we have as part of that, whether it’s the Senate, the Electoral College, all these things that are so fundamental to our identity, these are all under attack, and people need to know why—people need to take that as seriously as some people on the Left are taking it.
Williams: Right. The 1619 Project of The New York Times seems to want to do all the things you said, which is to lay at the feet of slavery really all of our institutions and even our prosperity and success over the last 250 years, right?
Severino: But it’s almost a larger version of the same ad hominem type of argument. It’s like, “Well, let’s not debate them about the actual policies. Let’s just say all these policies are wrong because they’re racist,” and that’s… [laughs]
Hemingway: Also pumpkin spice lattes.
Severino: Also pumpkin spice lattes.
Williams: Yes. I like the cultural solution. It brings to mind—you almost have kids starting high school, right, Mollie? Or they’re a few years out?
Hemingway: We have a few years.
Williams: Right, but I’ve talked to folks with teenagers now, and the current crop of teenagers just think this is all a joke. The put “Woke,” like my—an acquaintance of mine, who may or may not be related to me, recounted to me that basically an 18-year-old going to college has a “Woke” sticker on his bumper sticker, but it’s clearly a joke amongst his friends.
Hemingway: Yes, well, I was thinking about that dystopic novel We by Zamyatin, and there is this—the hope part of it is yes, there is this state-control of everybody and cultural control—it has so many things that you can kind of think of for the current moment we’re in, including sexual control and it deals with consent issues and whatnot—but there are these people who just live completely outside of the community who have gone natural.
Hemingway: This was written so long ago that then the idea was they were so natural that they’d grown hair on their bodies and were just roaming freely, but they’re the people who—they’re this symbol of freedom—and I do wonder if things aren’t so extreme that you’ll see a rebellion of some kind.
Williams: Yes, and I think the, one, institutional side of it is we have to either through—well, there are many ways to solve this problem, but I think what was front and center with that quote about originalism being patriarchal white supremacy is really the campus politics of the last 40 years have now fully spilled in to the public square. Now they’re cropping up in judiciary committee hearings. It’s ubiquitous, right? Pumpkin spice lattes is white supremacy.
That’s in many ways the legacy of campus radicalism—which my colleague, Charles Kesler, who I’ve mentioned already, wrote, I forget where in the last few years, that the Left has been accustomed to running the campuses a certain way, and now they want to run the country that way, and Trump sort of was a giant wrench thrown in that project, and it’s been very shocking at sort of all levels of the institutionalized power centers of the Left. So I hope maybe this can be the beginning of the end of that madness and the beginning of a solution, but it’ll take a lot of work.
I just want to thank you both for this wonderful book and for all the work you do, Mollie, at The Federalist, and Carrie, at the Judicial Crisis Network. This has been a great pleasure.
Hemingway: Thank you. That’s wonderful.
Severino: Thanks for having us.
Dr. John C. Eastman is joined by Professor Anthony T. Caso to discuss the U.S. Army Corps of Engineers v. Hawkes. Later Eastman is joined by Ilya Shapiro to discuss Zubik v. Burwell.