The Numbing Down of America: A Non-Lawyer’s View From Abroad

[The following essay is by William P. Hausdorff.]

Even before the jarring arrival of Trump, it had become increasingly difficult for those of us who travel abroad for work—I’m in the field of international public health—to explain to non-Americans why we periodically put up with literally insane statements and behavior from our highest elected political leaders.  “You know how politicians can be!” is the response that would elicit a (barely understanding) nod.  But of late it has become truly challenging, and perhaps even ominous, to try to explain why this tolerance for nonsense now extends to the more “professional” part of the federal government, the Judiciary.  Why does the often highly critical mainstream media routinely fail to question the basic competence and fundamental integrity of the judges?  I’m not referring to tweets and blog posts, where essentially every opinion under the sun can be found, but rather the New York Times, Washington Post, CNN, Politico, etc.  For example:

Trump-appointed Judge Aileen Cannon oversees the most straightforward of the ex-President’s federal cases (refusing to return classified documents). Last year her pro-Trump rulings in this case were humiliatingly reversed by the extremely conservative Eleventh Circuit Court of Appeals.  Undaunted, for months now she has inexplicably failed to issue expeditious rulings about virtually anything in this case, and two weeks ago finally delayed the trial indefinitely. It escapes no one’s attention that such delays could make any trial moot if Trump is elected and put her on the fast track for promotion in a future Trump administration. This is not a subtle game. Yet even though the reporting and opinion pieces by legal analysts can be scathing, it is very difficult to explain how very few—if any—authors can actually bring themselves to call for her to resign on the basis of incompetence and/or appearance of corrupt intent.  In a most recent example, an otherwise excellent piece in the New York Times culminates in a verbal wringing of hands in its anti-climactic last sentence: “Judge Cannon is proving that she is not fit for this moment.” 

Moving to the Supreme Court, it seems obvious that Justice Clarence Thomas will chronically fail to report any sizeable gifts he receives from billionaire “friends.” He will also continue to judge cases involving their professional interests as well as those of wife Ginni, who actively worked to reject the 2020 election results.  Yet because the Court eventually issued an anodyne code of ethics that even Chief Justice John Roberts said was nothing more than what the Justices already abide by, the media and congressional uproar quickly subsided.  

Likely emboldened by this impunity, Justice Samuel Alito just a few days ago brazenly justified the flying of the American flag upside-down in front of his house—a symbol of the “Stop the Steal”—only a week or so after the Jan 6 riots, as a response to nasty neighbors.  Not surprisingly, he has steadfastly ignored to date the plaintive calls from some Democrats for him to recuse himself from cases involving these events.  Where are the calls for him to resign, not just recuse?

Justice Thomas recently pointed to the absence of 18th and 19th century laws on guns as essentially determinative for judges and Justices deciding modern gun control cases involving AK-47s, mass school shootings, bump stocks, etc.  No fully sentient being in the 21st century would accept this rationale.  Not to be one-upped by Thomas, Justice Alito proudly cited a 17th century witch-hunter as a meaningful “common law authority” on the criminality of women’s reproductive rights.  While these opinions were ridiculed by prominent reporters and legal commentators, both Thomas’s and Alito’s positions on the Court remain unquestioned. 

During the oral argument in the case in which Trump asserts legal immunity for any actions that could remotely be construed as near or tangential to “official acts” of the Presidency, Justice Alito was so bold as to suggest that Presidents need such immunity or else they’ll risk bogus prosecution by their rivals upon leaving office and therefore won’t leave office! I’m no legal expert, but I doubt there is a basis for the immunity Trump seeks in any possible reading of the Constitution, except perhaps by the former Bush administration officials who sought to justify torture on the ground that Congress lacks authority restrict the President’s apparently unlimited Commander-in-Chief powers.  Could anyone invent anything more “un-American” than granting blanket legal immunity to a President? 

The Supreme Court, led by Chief Justice Roberts, is obviously slow -walking the blatantly ridiculous (don’t ask me, ask the district and appellate courts) presidential immunity case by first taking months to hear arguments, and then waiting until June to issue a decision. With the likely need for additional months of pre-trial proceedings, the trial would likely end up being dismissed by President Trump’s Attorney General.

Democrats whine, pule, and fume, but where are the speeches and editorials demanding an immediate ruling or, alternatively, that Roberts step down because he is either unable to unwilling to bring the Court to expeditiously decide major, urgent cases of great constitutional importance?

A European friend poses this hypothetical: “What if somebody on your Supreme Court declares the President a deity deserving absolute obedience?” Even I know impeachment is reserved for “high crimes and misdemeanors,” and virtually never happens to a Supreme Court Justice anyway.  Realistically, then, the only way for that Justice to leave the Court alive is by their own free will. Which is, of course, a Catch-22—if you are crazy enough to say these kinds of things, you cannot possibly recognize that you are too crazy for the Court. 

In a separate January 6 case, some Justices suggested that unless documents are destroyed, there is no felony in obstructing an official proceeding, raising a second, admittedly horrible hypothetical: if the January 6 insurrection had culminated in the actual hanging of Vice President Mike Pence, thereby physically preventing “the Presiding Officer” from officially declaring the new President, would this NOT be considered feloniously obstructing an official proceeding since (fortunately) no documents would have been actually destroyed?  

Given the manifest constitutional and political barriers to removing unfit federal judges or Justices, I can’t come up with any plausible explanation as to why consideration of any serious Court reform measures was long ago taken off the table by President Biden, and seemingly remains buried.

Perhaps most frightening to me, the American tolerance for the dangerously absurd may be spreading to threats to elected officials.  Witness the lack of significant media regarding the recent sudden resignation of Rep. Mike Gallagher (R-Wi). He stated that this was due to threats against himself, his wife, and his kids.  Where are the congressional leaders, Republican and Democratic, standing together with the White House to denounce what surely, if replicated, would end any pretense at representative government? 

Similar passivity in the face of the increasingly violent intimidation of state election officials and legislators in November will mean no real need for Trump to legitimately win the popular OR the electoral vote. I am not ready to join Professor Buchanan on this blog or my fatalistic European friends in the camp of Robert Kagan and accept that Trump will soon be President-Dictator and oversee the dismantling of American democracy. But with the numbing down of America, I’m getting closer.