No lawyering this thing to death: Conservatives and the courts, from Nixon to Bush to Trump

Denouncing the federal judge who put a nationwide stay on his Muslim ban, Trump recently tweeted this:

Picking up on how far-reaching Trump’s claim is, New York reporter Eric Levitz had this to say:

But we have already become so desensitized to our new president’s 140-character authoritarianism, the fact that Trump characterized the “court system” as a national-security threat did not qualify as headline news Monday morning.

We should not gloss over this. This was not merely an intemperate tweet. It was the president instructing the American people to view the next terrorist attack on U.S. soil as an indictment of the judiciary….

This is an argument for allowing our fear of terrorism to overwhelm our commitment to the rule of law — a line of reasoning that poses a far greater threat to the American form of government and way of life than any closeted-jihadist refugee ever could.

I’m not sure we have become so desensitized to this authoritarianism, but if we have, I don’t think our analysis can begin and end with Trump. For what Trump says here, however outrageous, is a continuation, or at least an intensification, of a long-standing conservative argument that the court system in the United States is one of the great threats to security, domestic and national. Beginning with the Nixon Administration, which saw liberal judges and Supreme Court justices as coddling criminals with their talk of constitutional rights, the conservative denunciation of the courts and judges and lawyers as a fundamental threat to the nation’s safety reached a crescendo after 9/11.

We often forget—particularly now, with Trump in charge—just how ferocious was the Bush-era assault on the very idea of law, the Constitution, lawyers and judges. John Ashcroft, Bush’s Attorney General, the highest law-enforcement officer in the land, said that legal rights were “weapons with which to kill Americans.” Orrin Hatch said that terrorists “would like nothing more than the opportunity to use all our traditional due protections to drag out the proceedings.”

That’s why, after 9/11, Bush sought to dramatize how hard and how ruthlessly he would fight terrorism by pounding the table with this promise: “No yielding. No equivocation. No lawyering this thing to death.” And why Ashcroft mocked liberals who thought the US government should read Al Qaeda their “Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV.”

That’s why also Antonin Scalia, who I called “the Donald Trump of the Supreme Court,” declared before his death his love of the television show 24, with its tough guy terrorism-fighter Jack Bauer. 24 showed how threatening the liberal conceit of the rule of law and the fetish of the Constitution was to basic security:

Jack Bauer saved Los Angeles….He saved hundreds of thousands of lives…Are you going to convict Jack Bauer? Say that criminal law is against him? You have the right to a jury trail? Is any jury going to convict Jack Bauer? I don’t think so. So the question is really whether we really believe in these absolutes. And ought we believe in these absolutes?

It’s true that Bush and his allies didn’t denounce the courts as a whole. But that’s probably because the courts mostly cooperated with Bush’s early dictates. Indeed, it wasn’t until the Hamdi decision—after the Iraq War had started to south—that the Supreme Court began to put a (limited) check on the Bush Administration’s expansive claims about what national security entitled it to do.

Trump, no doubt, is more extreme in this assault than Bush and his allies were. But that’s because, so far, he’s losing, and it is a difference of degree rather than kind.


  1. John Maher February 7, 2017 at 9:35 pm | #

    Ashcroft, a puerile mind in every other sense, was perhaps correct about the absence of any need to Miranda-ize enemy combatants. A big part of the Bush /neoliberal War on (T)Error was the institutional ontological hysteria concerning whether so-called terrorists were criminals or enemy combatants or non-persons.

    Scalia was just nuts. A more eloquent and prosaic form of nuts

  2. mark February 8, 2017 at 5:18 am | #

    A similar occurrence has just happened in British conservatism, as the Daily Mail’s James Slack accused High Court judges of being ‘Enemies of the People’ (see Daily Mail, ‘Enemies of the people: Fury over ‘out of touch’ judges who have ‘declared war on democracy’ by defying 17.4m Brexit voters and who could trigger constitutional crisis’ 3rd Nov 2016, and Guardian article Nov 4th 2016 for a photograph of the physical newspaper).

    This is the same newspaper that has become embroiled in legal action taken against it by America’s First Lady.

    And as for James Slack, he is tipped to become the Prime Minister’s new spokesman (see Guardian, Anushka Asthana, 31 January 2017).

  3. jonnybutter February 8, 2017 at 9:21 am | #

    Lest we forget: W. Bush’s scheme to transform federal prosecutors into political hacks

  4. b. February 8, 2017 at 11:14 am | #

    On a related note: law enforcement officials have now identified concentrated wealth as a threat to public safety:
    “Eavenson told Trump of a ‘state senator in Texas that was talking about legislation to require conviction before we could receive that forfeiture money.’
    [.. L]aw enforcement groups have been resolute in their support for the practice. They say seizing money from people not charged with crimes is sometimes necessary to protect public safety, particularly in cases where it may be hard to obtain a criminal conviction against a suspect.”

  5. jonnybutter February 8, 2017 at 1:19 pm | #

    I hope this one gets a lot of air, because it is so obviously terrible. i can’t imagine every Trump fan or voter is really in favor of the way current civil forfeiture laws work. If they aren’t ‘unreasonable seizure’ I don’t know what is.

    Middle and upper middle class white ppl might console themselves with notion that this wouldn’t happen to *them* (which prob isn’t strictly true in the case of middle class), but so-called ‘downscale’ voters can smell this rat or might even know someone screwed over like this; and anybody with some libertarian strains should find it abhorrent too. Civil forfeiture ought to be one of many issues to beat Trump with.

  6. jonnybutter February 8, 2017 at 1:45 pm | #

    BTW, I toured in the 80s with a band who, a few years earlier, had everything they owned stolen – by the Mexican ‘Federales’. The Mexican national cops stopped their van out in the middle of nowhere and just took it, with everything in it (instruments, PA, etc), plus all their money. One minute they were on a decent little tour, and the next minute they stranded in the desert with nothing.

    Sounds corrupt as hell, no? Oh those darned corrupt Mexicans! Now American cops can do just about the same thing, without convicting you of a crime. Hard to believe, but true. In some jurisdictions, revenue from civil forfeiture exceeds value of money and goods taken in regular robberies.

  7. jonnybutter February 8, 2017 at 6:16 pm | #

    John Ashcroft, Bush’s Attorney General, the highest law-enforcement officer in the land, said that legal rights were “weapons with which to kill Americans.”

    I remember well how breathtakingly cynical the talking point from the Bushies was: the Constitution is not a ‘suicide pact’. The full posture is that it’s not unless it is, and..they’ll let us know when it is and isn’t.

  8. Roquentin February 8, 2017 at 11:57 pm | #

    Doesn’t all this, Bush and Trump alike, reek of Carl Schmitt and his “state of exception,” which in my crude understanding was what he thought the purpose of the sovereign was? In his legal theories, the sovereign decides when such a situation arises. It’s worth noting that this argument generally hinged on expediency as justification, that bureaucratic red tape was too much of a hindrance. As an aside, Giorgio Agamben wrote a book about a decade ago about the “state of exception” I’ve been meaning to read, but I haven’t even managed to get through that first Homo Sacer book even though I’ve owned it for quite some time.

    24 was such porn, smut served up to an American populace that felt impotent after being attacked, a set of fantasies about how they could both get revenge and make sure it never happened again. Jack Bower more or less literally was a fever dream of American masculinity. It’s exactly the kind of thing that would appeal to a guy like Scalia, unironically I might add, but that’s a cheap shot because it enjoyed a much, much wider audience than the political right. When you get right down to it, it’s the same “state of exception” logic, that in these circumstances the normal rules no longer apply.

  9. Douglas Concha February 9, 2017 at 3:23 pm | #

    “So the question is really whether we really believe in these absolutes. And ought we believe in these absolutes?”

    If the constitution is not to be the principle that underlines all our actions but a mere tool, to be used and disregarded whenever appropriate, then, tell me, what are the principles we live by?

  10. jonnybutter February 9, 2017 at 9:14 pm | #

    24 …enjoyed a much, much wider audience than the political right.

    Yes it did, and ‘Homeland’ does. And Bill Mahr. Casual Hollywood racism.

  11. LFC February 9, 2017 at 9:35 pm | #

    Basically agree w the OP. As an addendum, would note that some of the Bush-era criticism of the courts and legal system (e.g., Ashcroft on Miranda) was also connected to the immediately-post-9/11 debate about whether to take a ‘law enforcement’ or ‘military’ approach to the whole issue of terrorism. Capsulized in the question whether 9/11 was properly seen as ‘a crime’ or an ‘act of war’. The two aren’t mutually exclusive, but they were widely presented as such at the time as far as policy options were concerned. The ‘act of war’ framing also facilitated — though I think in other hands it might not have — the Bush admin’s creation or resuscitation of the category of ‘enemy combatant’ (i.e. not traditional POWs or traditional criminals, either of whom would have been entitled to some more legal protection).

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