“It’s Scalias All the Way Down”: Why the very thing that scholars think is the antidote to Trump is in fact the aide-de-Trump

Mike Allen is reporting this morning:
Trump was upbeat and brought up a Kim Strassell column in The Wall Street Journal, “Scalias all the way down,” giving the president credit for “remaking the federal judiciary.”‘
I’ve said it before, and I’ll say it again. While political scientists warn against the norm erosion of the Trump presidency—and dwell on the importance of the courts, the Constitution, and the rule of law as antidotes—the most far-seeing leaders of the conservative movement and the Republican party understand that long after Trump has left the stage, long after the Republican Party has lost its hold over the political discourse and political apparatus, it will be Trump’s judiciary—interpreting the Constitution, applying the rule of law—that preserves and extends his legacy.
People often ask me why I criticize this language of norm erosion, why I go after social scientists ringing the warning bell against Trump. One of the reasons is that the very terms of their analysis not only ignore the real long-term threat of Trumpism but actually hold up that long-term threat—an independent judiciary interpreting the Constitution (for that is what, in 30 years, Trump’s judiciary will be)—as somehow the answer and antidote to our situation.
That analysis is completely backassward, and it really does us a disservice. Trump’s real threat is not that he will destroy institutions or the Constitution; it’s that institutions and the Constitution will preserve him, long after he’s gone.


  1. Chris Morlock October 15, 2017 at 11:59 am | #

    If Trump simply manages to stay in office for 1 term he will have solidified his legacy as the man who injected the Fed Judiciary with enough life to keep policies against socialized medicine, reproductive rights, and the policy of deregulation alive for another 50+ years. Already have totally lost this battle, and it hasn’t dawned on the Left in the USA yet. The battle is already over.

    Yes, that’s how bad corporate democrats and the Clintons were. Americans were willing to shoot themselves in the foot rather than wear that shoe.

    • Donald October 15, 2017 at 12:33 pm | #

      To be fair, I saw many Clinton supporters making the point that Trump’s appointments to the judiciary were a yuuge long term threat. Of course that would have been true for any Republican President, but the people I am thinking of would have agreed. I disagree with mainstream liberals on various issues, but they aren’t wrong about everything. This is not a disagreement with Corey’s point. I am just saying that some of Trump’s mainstream liberal critics have always emphasized court appointments as one of the main reasons for opposing any Republican President.

      • jonnybutter October 15, 2017 at 1:12 pm | #

        You have a point Donald – there were thoughtful Democrats who did sound the alarm about the judiciary, and some could be called ‘mainstream’, I guess. All mainstream Dems indeed aren’t wrong about everything.

        The mainstream liberal/Dem *rhetorical* position was weak though: to use this issue as a tired, patently reflexive scare tactic, just like they always use social security or medicare – as if abortion rights was a discrete issue. Forget about vision – there’s not even much of a prosaic coherence. It doesn’t diminish the importance of abortion rights at all to say that there is so much more to the danger of Scalias all the way down, and beyond Citizens United, too. And in the meantime mainstream Dems are happy to nominate so-called ‘pro-life’ candidates, just as they tend accede to the relentless chipping away at every piece of the welfare state, such as it is.

        Now if you’re talking about ppl like at the Roosevelt Institute – yes, but they aren’t mainstream Dems.

        • Donald October 17, 2017 at 6:47 pm | #

          It’s hard to make general rules about people and their motives. I think many Democrats are perfectly sincere about the Supreme Court argument while also being somewhat less than sincere about the way they can turn the moral outrage on and off on other subjects, depending on whether a Democrat or Republican can be blamed.

          I also notice that mainstream liberals often assume that if you criticize them you must be a closet Trump supporter or something of that sort. I can’t get ever quite get used to this. Much of what Trump actually does is entirely within the mainstream of the Republican Party, as Corey says, and some of it is mainstream for Democrats too, but it’s not an observation people are supposed to make in polite liberal society.

      • Glenn October 17, 2017 at 12:32 am | #

        In reference to “court appointments as one of the main reasons for opposing any Republican President,”:

        The surrender of an opportunity to appoint a Justice to the Supreme Court by Obama reveals support of any Democrat as less essential to the make up of the Court.

        Democrats call on the support of the electorate in the interest of the SC but did not, or could not, call on the electorate to make a fuss about the Republican’s decision that Obama’s attempt to appoint was, in effect, invalid.

        Democrats are brave launchers of drones, but too cowardly resist Republicans, so why bother with them?

        • Tom October 18, 2017 at 10:52 pm | #

          Ah Glenn, the right wing jerk.

          Obama’s drone policy was a shame. Many with functioning brains have noticed that the military runs most of foreign policy for a long time now. God help us if that technology had been put into the hands of Worthless Bush. Kissinger would still be using B-52s.

          Obama’s cool caution was infuriating at times. But one thing he really understood was the long observed fact that politics is the art of the possible. The Constitution does not spell out that nominees be voted upon. So, nothing to be done.

  2. Art October 15, 2017 at 12:00 pm | #

    We have a “conservative” Supreme Court and federal judiciary despite the fact that the Republican candidate has lost the vote in 6 of the last 7 presidential elections (where the public theoretically gets to have a say on the direction of the courts). At some point the majority will realize they don’t have to accept minority rule by plutocrats and fake authoritarian Christians and perhaps move to create real democracy, unlike the virtual democracy of the U.S. Constitution, written by and for the plutocratic overclass.

  3. Larry Houghteling October 15, 2017 at 1:10 pm | #

    It seems to me it will be in the long term interest of both Left and Right to change the rules on federal judges, especially those on the Supreme Court. Imagine how much less rancor would be raised on both sides if we had a constitutional amendment that a justice’s term would was ten years. He/she could be reappointed to another term, but could also NOT be reappointed, if that was what the president at that time preferred.

    The idea that a judge should serve however long he wanted (“on good behavior”) may have made sense in an era when the custom was to name 55-60 year olds who would almost certainly die by the age of 75. In an era when 47-year-old judges may be expected to serve till they are in their 80s, it’s nuts.

    Is there any chance we could change this dangerous-to-the-health-of-the-nation clause of the Constitution?

  4. Jim October 15, 2017 at 1:17 pm | #

    The vast majority of my liberal friends have focused as much on judiciary appointments as the most fervent right-to-lifers since the Reagan Era. So, yes, there is no doubt that any GOP President is an existential threat to democracy in America but Trump especially so. If – or when – we find the majority of the federal judiciary to be Scalia types or even worse and completely out of synch with the great majority of the people then I think the rule of law will be effectively dead and the U.S. will begin to be ungovernable. If that happens, all bets are off.

  5. David Egan October 15, 2017 at 4:09 pm | #

    I wish this author would see the forest for the trees as, I believe, he is able. This current administration will not abolish all standards of a liberal life: one that holds individual rights precious and collective bargaining demonstrative. Like our neighbors, we must endure each other until that white-hot spot glimmers; then we must act. This will be out test, to act or acquiesce.

  6. MKBrussel October 15, 2017 at 6:29 pm | #

    So, What is to be done?

  7. Bruce Gillespie October 15, 2017 at 8:07 pm | #

    So you’re saying that political science is a political problem? We knew that 50 years ago.

  8. Gerald Staack October 15, 2017 at 11:28 pm | #

    We have let democracy slip through our fingers by allowing conservative aristocracy to dominate society with money. We are now no better off than the pyramid slaves of Pharaohs, the pleasure slaves of Caesar’s palaces, or the feudal service fiefs of Lords.

    • Tom October 18, 2017 at 10:54 pm | #

      “It’s not dark yet, but it’s getting there…”

    • Hartmut October 19, 2017 at 12:47 pm | #

      The pyramids were not built by slaves but by workers who went successfully on strike when the state did not fulfill its obligations.In that sense they were more progressive than the US workforce of today.

  9. Brian October 18, 2017 at 3:06 pm | #

    how many divisions does the Supreme Court have?

    • James Levy October 20, 2017 at 1:21 pm | #

      So long as the President is willing to enforce their positions, all that they need to crush any opposition. Hell, the FBI and the Secret Service could do the job if the State cops and National Guard failed to intervene. Look at all the bluster down South in the late 50s and early 60s–the minute Eisenhower and Johnson sent in the troops, all those white macho men and Klan types folded like a cheap tent. Given modern technology, the people would fold even faster.

  10. b. January 31, 2018 at 5:55 pm | #

    Trump must be really feeling the constraints from all those enlightened appointees we got courtesy of Clinton and Obama. Or does this ratchet racket only work in one direction?

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