The Dangers of Mutual Radicalization

by Sidney Tarrow

Soon after the election of Donald Trump, a wave of protest bubbled up against the new president and his policies. Beginning with the “Women’s March,” followed by protests on behalf of gun control and against the threat of climate change, and led by new groups like Indivisible and old ones like the ACLU, the movement reached into the legal profession when Trump, soon after entering the White House, abruptly  announced a painful and chaotic ban on refugees and others from several majority-Muslim countries (as described by Michael Dorf and Michael Chu here). When the #MeToo and Never Again movements emerged, it began to seem as if American civil society was rising up in a body against the excesses and outrages of the new administration.

Academics and activists soon collected these varied movements under the rubric of “The Resistance,” but as David Meyer and I argued in our recent book, The Resistance: The Dawn of the Anti-Trump Opposition Movement, that label may say too much and too little. It may say too much because it assumes that the varied protest movements are a coherent whole, and it may say too little because it fails to examine the challenges that the Resistance poses to its supporters. 

Three of these challenges are the most important: first, the proliferation of activist sites and new groups has led to a failure to identify an overarching policy goal – apart from the proximate one of opposing Trump; second, there is a gap  between those who want to defend our institutions against the president and his enablers and those who want to tear down the institutions that facilitated his rise; and, third, there is the danger of mutual radicalization. As was revealed in the conflict that erupted over the Kavanaugh nomination, the third is the most pressing, and could easily weaken The Resistance.

I Feel Pretty: What If Brett Kavanaugh's Female Law Clerks Are All Beautiful?

by Sherry F.  Colb

Mostly lost amidst the credible testimony and ignored accusations of sexual assault against Brett Kavanaugh was a story about his law clerk hiring practices.  The story suggested that (a) all of then-Judge Kavanaugh's female law clerks have looked like models; (b) this is no accident; (c) Professor Amy Chua at Yale Law School groomed some of the female students for these clerkships by asking applicants to send her selfies in the outfits they planned to wear to the interview; and (d) Professor Jed Rubenfeld of Yale Law School, husband of Professor Chua, advised female students that Judge Kavanaugh liked his clerks to have a "certain look." Chua vociferously denied the story, which in turn led a former student to say that Chua was "lying" in her denial.

Needless to say, this story raises some questions. And if Kavanaugh has done what he is accused of doing, it puts the fact that he has a very strong record of hiring female law clerks in a less-than-feminist light.

Projection, Preemptive Accusation, and Strategic Hypocrisy

by Neil H. Buchanan

There has been a surge of commentary recently about the Republicans' embrace of conspiracy-laden accusations against the Democrats, including the bizarre claim that the people who confronted Republican senators prior to Brett Kavanaugh's confirmation vote were yet another group of "crisis actors" who had been paid by (who else?) George Soros.  As familiar as all of this has become, fantasies like this still have the capacity to surprise because of their complete disconnect from facts and logic.

In my most recent Dorf on Law column, I discussed the paranoid underpinnings of these conspiracy theories, once again drawing from Richard Hofstadter's timeless 1964 essay, "The Paranoid Style in American Politics."  To the extent that Republicans actually believe their own craziness, they are under the spell of extreme paranoid delusions, especially now that they are railing against their "powerful" opponents whom the Republicans in Congress have already made powerless.  It is one thing to accuse someone of abusing her power; but it is another thing entirely to imbue her with imaginary powers that no one can see but that supposedly put all Republicans at risk.

As important as that discussion is, however, it is only one of several partially overlapping explanations of Republicans' current mindset and political strategy.  Here, I am interested in the various ways in which one can explain Republicans' repeated attacks on Democrats for doing things that Republicans themselves are in fact doing (or will soon do). Most importantly, some of the explanations imply a quite conscious strategic decision by Republican strategists to lay the groundwork for future abuses of power.

Believing Men Who Lie About Rape

by Sherry F. Colb

Dr. Christine Blasey Ford needed a great deal of courage to come forward and accuse Judge Brett Kavanaugh of attempted rape. Such accusations predictably yield resistance, with allies of the accused saying that the accuser is either lying or mistaken (or crazy). Yet Ford brought her accusation nonetheless, saying that she felt it was her civic duty, and Donald Trump described her testimony as credible; at least that is part of what he initially said. He also observed that he himself has endured false sexual assault allegations, implying that he and Kavanaugh were like peas in a pod. 

Trump's expressly drawing a parallel between his own and Kavanaugh's experience was interesting. Trump, as we know, effectively confessed to sexually assaulting women in an Access Hollywood video that aired only weeks before the presidential election. The women who subsequently came forward were simply confirming that Trump had committed the criminal acts that he had described in the video.

Another sexual assault allegation against him was that of his ex-wife, Ivana Trump. Ivana reportedly gave a deposition during the Trumps' divorce proceedings in which she provided a graphic description of Trump brutally raping her. He was apparently enraged after having undergone painful scalp reduction surgery to cover a bald spot. He allegedly tore clumps of her hair off her head, tore her clothes off, held her down, and jammed his penis into her.  In her account of these events, she ran upstairs and cried for the rest of the night. When she returned to their bedroom, he reportedly menacingly asked her "does it hurt?" Ivana has since retracted this accusation, and one can decide whether the accusation or the retraction is more credible.

Whether one believes Ivana's detailed account or not, Trump does appear to engage in false sexual assault denials (while characterizing his own confessions as mere "locker room talk"). That's hardly surprising, given all of the other distortion and outright lying in which the president engages. Here, however, I want to set aside Trump's broader tendency to lie to focus on his false denials that he has committed sexual assault. He said he was innocent of sexual assault and called his accusers liars. Why in the world would he imagine that comparing himself to Kavanaugh would help exonerate Kavanaugh? 

Why Would Republicans Call Democrats Too Powerful and Angry? It's All They Know

by Neil H. Buchanan

The post-Kavanaugh political conversation has been dominated by Donald Trump's effort -- gleefully supported by Republicans -- to turn the recent confirmation process into a political rallying cry.  As The Washington Post's Paul Waldman explained, the new Republican talking point is a version of what both Kavanaugh himself and Lindsey Graham shouted at the Judiciary Committee's Democrats: You're all power hungry, angry political animals!

The Republicans are now claiming that "mobs" of Democrats swarmed the Capitol and tried to "destroy" a completely honest and decent man.  Dr. Christine Blasey Ford was, at best, mistaken in identifying her attempted rapist (if it happened at all), and George Soros is behind it all.  It plays like a mash-up of the Republicans favorite slanders of Democrats and deepens Republicans' claims of victimhood.

There are many angles from which to analyze this new development, obviously including the Republicans' revival of the International Jewish Conspiracy (via Soros), as The Post's Catherine Rampell describes clearly and chillingly.

Here, I will focus on the paranoid aspects of the Republicans' increasingly deranged mindset.  They have, I think, finally reached the point where they will say or do literally anything for political advantage, with no concern whatsoever about whether there is a basis in reality for anything that they say.  They are convincing each other that they are the victims of a swirl of conspiracies, and they have all become true believers.

A Supremely Dark Future

By Eric Segall

Letter to my Granddaughter, 8/24/2045

Dear Jenny,

As you prepare for your first year teaching constitutional law at Clarence Thomas Law School at Liberty University, I thought you might find it helpful to have an accurate historical perspective on some of the subjects you're going to teach. I know you will find some of the law described below to be ancient history, but I can assure you, it wasn't that long ago.

The "All of the Above" Approach to Justice Kavanaugh

by Michael C. Dorf (cross-posted on Take Care)

[Non-spoiler Alert: This essay discusses the tv series The Americans, but it should not ruin the viewing experience of any readers who intend to watch it.]

In the rightly acclaimed tv series The Americans, two Soviet agents live undercover in the US for many years under the identities of Philip and Elizabeth Jennings. They pose as mild-mannered travel agents by day while committing acts of political sabotage and murder by night. They arrive in the US as committed communists in the 1960s, but by the time the show opens in the early 1980s, Philip has grown fond of suburban American life and its creature comforts. The conflict between Philip and Elizabeth over how committed each remains to the cause of global communism fuels much of the show's gripping narrative. By the time the sixth and final season opens, Philip has quit working for the KGB, as he has grown wary of its efforts to undercut Gorbachev's reforms and peace overtures. He has become his cover. Elizabeth, by contrast, remains a true believer.

That division can serve as a metaphor for two polar attitudes of various liberal constitutional lawyers now that Brett Kavanaugh has been seated on the Supreme Court. We were never Soviet communists; we placed our faith in the Supreme Court. Despite all evidence to the contrary (Bush v. Gore; Shelby County v. Holder; Citizens United v. FEC; Trump v. Hawaii; etc.), we still believed in the Court as a potential force for good.

Is Kavanaugh the last straw? A prominent constitutional scholar recently told me that, in light of the Senate's confirmation of Kavanaugh, maybe it's time for us to find a new field -- commercial law, perhaps -- in which the rulings of the Supreme Court play no substantial role. Having lost faith in the Court as a force for good, this scholar considers the path of Philip Jennings. Doing so might well be good for our personal wellbeing, but it would also be a kind of giving up.

Meanwhile, another prominent scholar suggested that, whatever distaste we now have for Kavanaugh and the route he took to the Supreme Court, we need to keep our noses to the grindstone to minimize the damage; although we will now see the most conservative Court in living memory, we have had a half century of a Republican-dominated Court, so it's not exactly as though we lack experience making lemonade from lemons. That's the path of Elizabeth: put your head down, and do your job.

Is there a middle course? Something other than, on one hand, abandoning the field of constitutional law and, on the other, acting as though it's business as usual? Absolutely. To see what options are available, however, we need to be clear-eyed about the coming challenge.