The very thing that liberals think is imperiled by Trump will be the most potent source of his long-term power and effects

John Harwood has a good piece about Trump’s downward spiral of weakness:

Increasingly, federal officials are deciding to simply ignore President Donald Trump. As stunning as that sounds, fresh evidence arrives every day of the government treating the man elected to lead it as someone talking mostly to himself.

“What is most remarkable is the extent to which his senior officials act as if Trump were not the chief executive,” Jack Goldsmith, a top Justice Department official under President George W. Bush, wrote last weekend on

“Never has a president been so regularly ignored or contradicted by his own officials,” Goldsmith added. “The president is a figurehead who barks out positions and desires, but his senior subordinates carry on with different commitments.”

The disconnect between Trump’s words and the government’s actions has been apparent for months.

Coming on the heels of yesterday’s Quinnipiac poll—showing Trump’s approval ratings at an all-time low (33%), with drops in support among Trump’s triad of support: men (40%), whites without college degrees (43%), and Republicans (75%)—and two week’s worth of articles demonstrating an increasingly restive Republican Party in Congress bucking Trump’s will (on Russia, war powers, health care, Jeff Sessions, and more), Harwood adds one more tile to the developing mosaic of Trump’s epic fail of a presidency.

It seems like we’ve gone, in a mere six months, from January 30, 1933 to this meme/scene from April 1945—


—without any of the promised the features in between: no Reichstag Fire, no Enabling Act, no Night of the Long Knives, and so forth.

Meanwhile, as I’ve argued before, where Trump is actually having a lot of policy and personnel success—long-term success, of the sort that will be impossible to reverse by his successors—is in appointing judges. While Trump has managed to reverse a lot of Obama’s regulatory regime, we should remember that that is the sort of thing presidents can do independently. And as Obama has now discovered, what one president can do, his successor can undo. And vice versa.

Judges are different. As Ronald Klain argued last month:

He [Trump] not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.

Moreover, Trump’s picks are astoundingly young. Obama’s early Court of Appeals nominees averaged age 55; Trump’s nine picks average 48. That means, on average, Trump’s appellate court nominees will sit through nearly two more presidential terms than Obama’s. Many of Trump’s judicial nominees will be deciding the scope of our civil liberties and the shape of civil rights laws in the year 2050 — and beyond.

Which makes for an interesting irony.

Since Trump’s election, we’ve heard a lot of concern from intellectual and journalistic worthies about the dangers of populism. What might a strongman armed with the instruments of the people and propaganda—legislatures, rallies, speeches, and tweets—do? Specifically, what might he and his populist crowds do to the courts, ever upheld as the bastions of liberty against a rampaging, marauding people?

As it turns out, that question gets it exactly backward. It’s not what Trump will “do” (in the sense of illicit browbeating or intimidation) to the courts that matters; it’s what the courts will do for him and his legacy that matters. Far from strongarming an independent judiciary into submission, Trump will secure his legacy simply by nominating judges and having them approved by the Senate, exactly as the Constitution prescribes.

It will be the independent judiciary, the Constitution, the counter-majoritarian Senate, the rule of law—all those instruments and institutions, in other words, that the Trump-as-fascist crowd loves to uphold as the safeguards of freedom or as imperiled flowers of the moment—that will be the most critical sources of Trumpism’s long-term power and effects.



  1. Deadl E Cheese August 3, 2017 at 9:23 pm | #

    Turns out checks and balances and constitutional oversight cease to exist in a unified government. Pretty big goof up by the founders, imo. *sees Whigs and Tories already going at it in the UK* “Buuuh, no way that could happen here.” — slave-owning syphilitic dumb*sses.

    – Matt Christman, CTH

  2. Chris Morlock August 3, 2017 at 9:28 pm | #

    I’m just very resistant to the idea that what’s happening to Trump is a good thing. It might seem like the government in an unspoken rebellion against the leader is a good thing, one of some kind of moral principle, but doesn’t this knife cut both ways? Most of the anger against Trump is from the establishment, and if they can get away with tons of illegal leaks, open contradictions on policy, and endless barrage from the media in lock-step- what happens when Bernie is in office? Wouldn’t he get the same treatment, and wouldn’t he be undermined by the exact same attitude?

    It’s of particularly low character on the part of the Dems and the establishment to institute a death from a thousand cuts, without anyone actually coming out and challenging Trump with ideas. It’s under-the table and weak, and these tactics of deception and dishonestly don’t give me a warm feeling. Bernie is not partaking of this back-alley back stabbing.

    • richard k bloom August 4, 2017 at 12:23 am | #

      Very astute Chris. The critics haven’t done much to counter Trump. Trump counters Trump with the chaos he creates and emanates. Bernie isn’t partaking of the backstabbing because he still has a message to get out. We remember that Hilary was the first Democratic candidate to campaign without an economic message. And if there are those who ARE challenging Trump’s ideas, they would not be heard. The only media show in town, to watch and to listen to, is the Trump show. Who was it but a Republican, John McCain, who with one thumb challenged the very core of Trump’s shallow rule.

      • Chris Morlock August 4, 2017 at 1:31 am | #

        I’m just so worried that the real Trump legacy will be the undermining of the office of the President and the new template for dealing with the primary apparatus to enact change in the American government – the election of a president to power. The new model is to undermine and ignore, and that strategy can be used in the future to undermine any administration that seeks to challenge the status quo. Obviously Trump is just secretly supporting the status quo, which is the real joke. They are so insecure in their skins that a fake revolutionary seems to be treated as badly as a real one.

        McMaster is at the heart of this- almost all of the nationalists that wanted to restructure American foreign policy away from the pro China / Saudi Arabia / Israel alignment have been brutally undermined. That Trump went to McMaster showed me that he is in fact extremely weak, and needed to employ the protege of the great neo-lib intelligentsia patron Petraeus, who even now is essentially running the show in terms of geo-politics. Petraeus is was a huge Hillary supporter. Most of the leaks attributed to the Trump admin comes from the nearly 100 Obama era appointees at the NSA that McMaster has protected during his tenure.

        Progressives usually ignore these developments because of the Trump derangement syndrome, but these are not good things when a progressive gets into power. If the deep state can manipulate the presidency into a paper tiger, it’s dangerous from American democracy, to the core.

        • James Levy August 5, 2017 at 8:24 am | #

          Although sympathetic to your point I think the “Trump derangement syndrome” meme is a blanket form of dismissal that helps no one, like all of us who opposed the Iraq war and were accused of “Bush derangement syndrome” as a means of disparaging us so as to delegitimize our complaints. There are plenty of reasons to be angry and frightened by a Trump presidency. Waving around “Trump derangement syndrome” as a means of discounting his opponents strikes me as flippant. It does not further your valid argument that the way to fight Trump is to challenge his bad policies and obvious ineptitude, not use the spooks and the government apparatus to undermine him. Although in defense of the bureaucracy, Trump tweets are not presidential directives, and The Donald doesn’t seem to understand that his word is not law. There are procedures and processes when one wants to do something in a constitutional state, and Trump tends to ignore these regularly and think that because he says something, it ipso facto becomes policy (idiot Transgender tweet being an excellent example).

          • Chris Morlock August 5, 2017 at 11:15 pm | #

            I use “Trump Derangement Syndrome” to describe the corporate media’s attitude towards Trump. The joke is Trump is doing exactly what the status quo wants, dismantling regulations, ramping up wars, bending over backwards to appease the interests of global capitalism, etc. Yet people aren’t talking about that, they are instead super angry about Russia, Transgender Military policy, building the dumbest wall of all time, immigration policy, etc.

            I have no doubt that those are real issues to be angry about too, but when they are the ONLY issues being discussed while the real legacy of Trump and his real successes in office on deregulation, more war, and the stacking of the judiciary with pro corporate judges is not discussed then I am going to call that kind of resistance at least partly “deranged”.

  3. freetofu (@freetofu) August 3, 2017 at 10:36 pm | #

    I’m just trying to make sense of that “And vice versa.”

    • Dean C. Rowan August 3, 2017 at 11:02 pm | #

      Yup, that’s the missing step most of the time. When we establish a principle or practice in opposition to our perceived enemies, we typically neglect to recognize that our enemies can wield that principle or practice against us. This is, in brief, Glenn Greenwald’s point about stupid partisan advocacy.

    • George August 3, 2017 at 11:44 pm | #

      what one successor can do, his president can undo.

  4. SteveLaudig August 3, 2017 at 11:19 pm | #

    Once the habit of ignoring appears, judges can be ignored even more easily.

  5. Debra Cooper August 4, 2017 at 1:31 am | #

    Yes it is important to retake the Senate in 2018.
    That would be the only way to stop a Republican president from appointing even more judges.

    Maybe Trump keeps threatening moderate Republicans and it backfires. If only wishes were to become reality…

    Because those judges could uphold many of the trangressive actions Trump or any Republican president would make.

    It also makes very clear that it wasn’t blackmail but fundamental common sense to actually show up to vote for the Democratic nominee, Hillary Clinton.

    I think the action of not showing up to vote because the Democratic party was supposedly corrupt would be known as cutting off your nose to spite your face,

    • Debra Cooper August 5, 2017 at 2:12 am | #

      These judges could uphold many of his transgressive programs and violation of democratic norms, but it also means when Democrats regain enough power to pass positive, progressive legislation that it will be undermined, undercut and even overthrown.

      Elections have consequences indeed and refusing to participate because the party is “corrupt” means you are a participant in undermining your own future.

      • Camembert August 7, 2017 at 4:01 pm | #

        Telling voters you hate them because they are stupid is the best way to get them to vote for you. I read it on the internet.

  6. relstprof August 4, 2017 at 5:34 am | #

    Retaking the senate isn’t going to happen given schedule. Gains in the house, sure. This is the thing: we have to elect an actual progressive program, a manifesto as the Brits term it. If the slogan has to be “a better deal”, support candidates that take this in its “new deal” sense — single-payer medicare for all.15$. Debt-relief. Anti-monopoly legislation. Climate protection for future human beings and all species in the ecosphere.

    Given his unpopularity, I’m convinced there will be a day when Trump decries the whole of the American public as losers. At that point, something different and sane ought to have steam. It’s a matter of organizing to push it forward.

    • Camembert August 7, 2017 at 4:40 pm | #

      Don’t worry, the Establishment Dems will be ready with a program of increased domestic surveillance, expansion of the H1-B indentured servitude program, and stopgap fixes for the ACA that preclude universal care as their platform to run on.

  7. Billikin August 4, 2017 at 7:37 am | #

    Klain: “He [Trump] not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.”

    Oh, Lord, save us from the innumerate! In two terms Obama made 333 judicial appointments, George W. Bush made 330, Clinton made 379, and Reagan made 384. In one term George H. W. Bush made 194 and Carter made 262. As we know, the Senate obstructed Obama’s appointments in his last couple of years in office. Presumably he would have appointed more judges if not for that. At an average of 47 judicial appointments per year over the 40 year period, we might have expected Obama to make 376 appointments. Presidents don’t just get to make judicial appointments. There have to be vacancies to fill. The basic pace of appointments is dictated by the vacancies, not the Presidents. I don’t know how many vacancies the Senate left Trump at the beginning of his term, but a backlog would explain the high rate of appointments right now. We cannot extrapolate the current rate into the future. There have to be vacancies to fill. Oh, sure, Trump will probably go over 200 in 4 years, but unless Congress expands the judiciary, vacancies will continue to open up at a rate of a little less than one per week. That is the base rate that Trump cannot change. Trump cannot dictate the pace of appointments.

    Is not what we are seeing now the success of the strategy of obstruction by Senate Republicans? Trump is giving them appointments of the kind of judges that they have been waiting for. How much does Trump know about the judges he is appointing? Maybe not much. Maybe he appoints judges of the sort that he would like to have presiding over his lawsuits. I don’t know. In any event, he is appointing judges that the Senate likes.

    In his article Klain does point out the importance of the Senate, but not of their role in the current rapid pace of appointments, which he uses for its alarmist effect. The pace has to die down.

  8. Lichanos August 4, 2017 at 7:58 am | #

    “Oh, Lord, save us from the innumerate!”
    Innumeracy is an affliction of the troglodyte Right as well as of the liberals and the Left, with whom I sympathize.

  9. Chris Morlock August 4, 2017 at 6:13 pm | #

    You are not taking into account that there is an age factor involved. Many have reported that the Fed Judiciary, during the Trump years, will yield many more “opportunities” than any time in the last 40 years. Why this is the case is unclear, but it’s probably due to a generational pattern. Judges could also opt to just continue, maybe even weekend at Bernie’s style. But the opportunity for Trump to take advantage of vacancies will be higher than any president in the last 40 years.

    • Billikin August 4, 2017 at 6:57 pm | #

      I assume that you are talking to me. No, I did not have any evidence about age to consider. But neither did Klain. He just said, My God! Look how many judges Trump has appointed already!!!!! What a pace!

      I did wonder about why Bush II appointed so few. Perhaps it was because of an unequal age distribution among Federal judges. However, I did suggest that he would appoint more than 200 in 4 years, which is a higher rate than anybody since Carter.

      • Billikin August 4, 2017 at 7:00 pm | #

        By “he” I meant Trump, OC.

      • Chris Morlock August 4, 2017 at 7:03 pm | #

        Yeah, I think it does have something to do with age. For some reason there are many judges set to retire in the next 8 years, way more than in the past. I remember Bill Maher pleading with people on his show about this issue last year, begging them to vote for Clinton for that reason.

        Corey is right in fearing that aspect of the Trump legacy, it will be crushing to the labor / repro rights / civil rights crowd and will favor the corporate / gun rights / anti-abortion / pro-religious crowd. Lots of it is what I would consider social issues but there is no denying labor will suffer immensely from pro-corporate policy.

  10. Rich Puchalsky August 4, 2017 at 7:55 pm | #

    The reason why the court nominations are moving along is because, as far as I can tell, it’s a part of the GOP apparatus that runs independent of Trump or really the rest of the GOP, farmed out to the Federalist Society and similar groups. It would operate in the same way under any period of GOP control, unless the President was so active that they supplanted it.

    I think that the assumption that our system is going to remain in place until 2050 is not necessarily well founded. Our elites, on both sides of the center, are doing everything they can to ensure that no one really likes it or is centrally committed to it.

  11. Tom August 6, 2017 at 12:15 am | #

    I was just about to write something along the same lines as Rich Puchalsky, just not as well as he did. I expect that more of what Sheldon Wolin termed “managed democracy” is in our future, at best.

  12. Billikin August 6, 2017 at 4:38 am | #

    Suppose, for the sake of argument, that Trump appoints 240 Article III judges, approaching the number of Carter appointees, and at a way higher rate than any President since Carter. That’s 52 appointments more than average, or about 6% of total Article III judges. That’s not nothing, but is it anything to be alarmed about? I find it alarming that Trump appoints any federal judge, but that’s blood under the bridge, as Albee might say.

    Besides, how many of the judges that Trump appoints will bear his distinguishing stamp? Not many, I should think. It’s not like Trump knows anything. Surely the majority will be of the same ilk as those of any generic Republican President. Does anybody remember Haynsworth? Carlwell? Miers?

    • Billikin August 6, 2017 at 4:40 am | #

      Sorry, that’s Carswell.

  13. Billikin August 8, 2017 at 4:18 pm | #
  14. NM August 13, 2017 at 11:18 am | #

    Which once again shows why, once HRC won the nomination, absolute, full-throated support for HRC should have been incumbent on every self-proclaimed Leftist. Who gets to appoint judges matters, not what HRC may have said about “super-predators” way back when in order to win an election shortly before I entered middle-school. I mean, send the DLC to the Gulag by all means — but only After the Party has won power, or Before the election has begun. Not while it is happening.

  15. john August 17, 2017 at 5:08 pm | #

    So what is the answer for progressives? To stack the court when it becomes an obstacle? Or is there no antidote?

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