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Best of The Atlantic
Best of The Atlantic
The True Victors of Trump’s Supreme Court Nomination
When President Donald Trump announces tomorrow that Amy Coney Barrett is his nominee for the Supreme Court, he will be effectively declaring victory. In 2016, Trump offered a horse trade to American conservatives: In exchange for their votes, he promised to appoint judges who would champion their interests. This nomination will be yet another chance for Trump to remind his supporters that their bet paid off, conveniently timed just a few weeks before Election Day. While Trump may see this nomination as a boon to his reelection campaign, the true victors are the leaders of the conservative legal movement, who built the sophisticated machine in Washington that made this moment possible. With most of America’s institutions, from Congress to the executive branch, locked into a state of dysfunction and partisan bitterness, the Court has become the ultimate venue for the parties to fight out controversies and entrench their power. Barrett’s nomination is the culmination of a decades-long strategy to advance judges steeped in a conservative judicial philosophy that tends to favor limited government regulation of businesses, produce skepticism of abortion rights, and promote an expansive view of religious liberty. If Barrett is confirmed, a new 6-to-3 conservative supermajority will be poised to determine Americans’ rights for a generation. (The president is expected to formally announce her selection tomorrow evening.)The strategy of the conservative legal movement is basically a long game of cultivating personnel. “You know the saying that Hillary Clinton had in her book, ‘It takes a village to [raise a child]? The Republican version of that is, ‘It takes 30 years to grow a Supreme Court justice,’” Jack Balkin, a law professor at Yale, told me. Starting in the 1980s, a group of conservative intellectuals, including the future Supreme Court Justice Antonin Scalia, began developing networks to train and connect young law students inclined toward a conservative judicial philosophy. This elite class of lawyers then fanned out across firms, think tanks, academia, and government, creating a “conveyor belt of bright, qualified, conservative judges,” Balkin said.[Read: Is this really the end of abortion?]Amy Coney Barrett is a luminary of this movement. Unlike the other justices currently on the Supreme Court, she never attended an Ivy League school, but she scored two of the top clerkships available to promising young conservatives, working for Judge Laurence Silberman on the D.C. Circuit Court of Appeals and Scalia on the Supreme Court, who saw her as one of his favorite clerks. Scalia’s methods of judicial interpretation were a huge intellectual influence on Barrett. “She’s committed to tethering herself to the text, history, and tradition of the Constitution and [trying] to discern its original understanding,” O. Carter Snead, a professor of law and political science at Notre Dame and Barrett’s former colleague, told me.One of the watchwords of the conservative legal movement is judicial restraint—an allergy to what adherents describe as judicial activism that leads judges beyond the text of a statute or the Constitution to a preferred policy outcome. “Judges are not supposed to be politicians” or impose “their preferred ideology or their preferred religious preferences,” Snead said. Barrett appears to share this view. “The public should be absolutely concerned about whether a nominee for judicial office will be willing and able to set aside personal preferences,” she said during an interview with a former student of hers at Hillsdale College last year. “That’s not a challenge just for religious people. That’s a challenge for everyone.”Barrett’s ability to set aside her religious views as a Catholic has been a matter of intense debate since she was nominated to the Seventh Circuit Court of Appeals in 2017. “The dogma lives loudly within you, and that’s of concern,” Democratic Senator Dianne Feinstein of California said during Barrett’s confirmation hearing, questioning whether she would uphold the precedent of abortion rights set in Roe v. Wade. An ugly war has already begun over Barrett’s participation in a charismatic community in South Bend, Indiana, and whether that should be a factor in her Supreme Court confirmation hearings.The irony of this debate is that it obscures the philosophical commitments that explicitly shape who Barrett would be as a justice. Article VI of the U.S. Constitution prohibits any religious test from being imposed on candidates for office. We cannot know how Barrett’s Catholicism shapes her views, and moreover, it is likely unconstitutional for senators to consider that in evaluating her fitness for the job. But it is clear that her involvement in the conservative legal movement has definitively shaped her approach to the law.Abortion would be by far the most controversial issue up for consideration by a Supreme Court with a conservative supermajority. A number of cases already in the pipeline to the high court could lead to significant restrictions on abortion rights around the country. But conservatives also see opportunities in other areas of the law: expanding the boundaries of religious freedom, for example, as well as scaling back bureaucrats’ ability to determine government policies. Specific laws, most notably the Affordable Care Act, are at direct risk of being struck down; a challenge to the health-care law is scheduled for oral arguments just a few days after the election.In recent years, conservative justices have joined the liberal wing of the Court for decisions on highly contested issues, from legalizing same-sex marriage in Obergefell v. Hodges to protecting the status of young undocumented immigrants in Department of Homeland Security v. Regents of the University of California. The biggest advantage of having six Republican-appointed justices on the Court is that conservatives can “seek review in the Supreme Court, and not have to worry about 5-4 decisions,” Boyden Gray, who served as White House counsel to George H.W. Bush, told me. The new conservative supermajority “promises a revolution in doctrine,” Balkin said. “But that’s too strong a word, because, in fact, doctrine has been changing markedly over the course of the last 30 years.”[Caitlin Flanagan: Will Democrats fail the Amy Coney Barrett test?]For all they may claim neutrality, Supreme Court justices are political creatures, who tend to follow their ideological leanings when big decisions are at stake. Over time, the Court has gradually become more favorable to conservative judicial philosophies. Even Justice Elena Kagan, who was appointed by Barack Obama, has said so: “We’re all textualists now,” she declared. Barrett’s nomination, then, is not the beginning of a new era on the Supreme Court. It is the ratification of a long-standing trend. Thirty years ago, the movement could not claim this kind of dominance. Democrats tanked Robert Bork, one of the early advisers of Yale’s chapter of the Federalist Society, at his 1987 Supreme Court confirmation hearings. David Souter, who joined the Court in 1990, was later reviled by conservatives for steadily becoming more liberal over his tenure. Now, every conservative who makes it to the federal bench is a known entity. “For all the candidates since then, they’ve all had records where you can get a pretty good picture of how they would deal with tough, national issues,” Gray, who worked on Souter’s appointment, told me.By the time Trump ran for the president in 2016, the conservative legal movement was firmly established in Washington. Trump presented an opportunity. In exchange for leaders in the movement doing the hard work of compiling and vetting potential judicial nominees, the president would hold open the door for a parade of judges committed to conservative judicial philosophy. Many voters believed this deal made Trump worthy of their support: In exit polls, a quarter of those who backed Trump said the Supreme Court was their chief motivation. Trump has secured more than 200 appointments to federal courts and circuit courts of appeal, along with two Supreme Court justices so far. He kept his end of the bargain.Trump is clearly hoping another Supreme Court seat will give him a much-needed popularity boost as he continues to lag behind Biden in polls. (He has also said that he expects the Court will determine the outcome of November’s election.) It’s not clear that the coming confirmation battle will ultimately push Trump over the edge with voters, however. Democrats are issuing dire warnings about the future of the ACA in swing states, where they believe they have the advantage. The top leaders of the conservative legal movement are all-in to help the president get reelected. But they may have already gotten what they wanted out of Trump. Four more years of this president would seem short compared to the lifetime appointment of 48-year-old Amy Coney Barrett. No matter what happens in November, the conservative legal movement won.
theatlantic.com
The Atlantic Daily: The Fight Over RBG
Every weekday evening, our editors guide you through the biggest stories of the day, help you discover new ideas, and surprise you with moments of delight. Subscribe to get this delivered to your inbox.The Fight to Replace RBG GETTY / THE ATLANTICThe first Saturday of fall will bring an announcement with the potential to shape American lives for years—if not decades.Tomorrow evening, at around 5 p.m. ET, President Donald Trump will name his nominee to replace the late Ruth Bader Ginsburg, kicking off a likely tense and deeply political confirmation process—worsened by the charges of hypocrisy facing Senate Majority Leader Mitch McConnell.As we noted yesterday, Democrats can do little to thwart the confirmation of Trump’s pick, but that doesn’t mean there won’t be political consequences come November. Here are some arguments to consider as you await Trump’s pick:The Democrats’ SCOTUS message could really work in swing states.“Even if the Court fight doesn’t fundamentally upend the election’s dynamics, small tremors could have a huge effect given how tight many of the key Senate contests remain,” Ronald Brownstein reports.By proceeding, Trump is taking away a lifeline for Republican senators who represent swing states.“A preferable scenario for embattled swing-state senators would be for Trump to put off a confirmation vote and let the election winner pick the nominee,” our White House reporter Peter Nicholas writes.Will Democrats fail the Amy Coney Barrett test?“If Barrett is nominated, the confirmation hearings are likely to provide Democratic senators with an opportunity to demonstrate their assumptions of moral rectitude and preening intellectual superiority,” Caitlin Flanagan argues.The great liberal reckoning has begun.Liberals are losing faith in the Court. “A century ago, the biggest critics of the federal judiciary were on the left, and for good reason,” Alan Z. Rozenshtein argues.JAE C. HONG / APWhat We ReviewedHollywood is in trouble: Tenet and Mulan couldn’t quite revive the United States movie industry. As our critic David Sims puts it: “No major studio has been nimble enough to get around the pandemic’s biggest obstacles.”Here’s what writers on our Culture team have been thinking about recently:Tenet practically demands multiple viewings.Christopher Nolan’s latest film is “a loud, brassy action blockbuster that matches visual spectacle with elliptical plotting.”Mulan goes heavy on gravitas at the expense of playfulness.The live-action remake is “a straightforward war movie with a mere dash of magic.”Antebellum isn’t just bad—it’s vile.The film “loads up on visceral scares and disturbing imagery in service of a shallow film that feels like a gory theme-park ride showcasing the horrors of slavery.”Coastal Elites is a tepid satire that doesn’t play well in a year as catastrophic as 2020.The HBO special “misdiagnoses the dangers facing the country.”76 Days is a brutal but utterly compelling look at the earliest days of the coronavirus outbreak.“If 76 Days has a narrative, it’s about order being slowly and painfully reborn out of total confusion, of humanity reasserting itself in the face of an uncompassionate and destructive disease.”Many of Perry Mason’s bleak touches are bolstered by the history of American law enforcement.“And if that feels disturbingly familiar in the era of George Floyd and Black Lives Matter, it probably should.”Here are four films you should look forward to this fall.“Some of the year’s best new movies are about American soul-searching”: Dispatches from the Toronto International Film Festival.Did someone forward you this newsletter? Sign up here.
theatlantic.com
Disclosure Doesn’t Work on a Shameless President
Again and again, President Donald Trump has violated, evaded, or ignored the law. The Constitution says a president cannot accept payments from foreign governments, but Trump did. The Constitution says that the principal officers of executive departments—members of the Cabinet—must be confirmed by the Senate. Trump junked that rule too, relying instead on his power to appoint temporary acting officials. A century and a half of legal precedents establish that a president must generally comply with subpoenas from Congress, even if he does not like the questions. Again, Trump disregarded seemingly established law.Courts have sometimes checked the Trump presidency, but not always. But court decisions take years to decide and longer to enforce. In July, the Supreme Court ruled that Congress and New York State prosecutors could legally subpoena Trump’s accountants and bankers for his financial records—a ruling that was followed by yet more Trump litigation seeking to challenge, or at least delay, the subpoenas. Even impeachment did not restrain Trump. His strong grip on his party—and on a sufficient minority of the American public—protected him from the Constitution’s ultimate remedy.The Trump presidency has exposed the degree to which presidential compliance with law is voluntary. The American system relies heavily on the president’s own sense of honor and integrity, on the president’s own wish to do what is right. The Trump presidency demonstrated how inadequate are custom and tradition to restrain a president determined to do wrong.Half a century ago, Congress and many states enacted ambitious reforms in response to Watergate and other abuses of government power. The dominant theme of those 1970s reforms was disclosure. Politicians would disclose more of their personal finances. Parties and campaigns would disclose more of their donations. Executive-branch agencies would disclose more to Congress. Congress would open more of its committee meetings to public view, and the sessions of the House and Senate to television cameras.“Sunlight is said to be the best of disinfectants,” Louis Brandeis wrote in 1913, and the reformers of the 1970s adopted that motto as their own.Over the past half century, some of those disclosure mechanisms have deteriorated. The fog of dark money has considerably obscured election finance, for example.But sunlight disinfects only when the general public and elite stakeholders care about what is disclosed. In the Trump years, that assumption of the reformist creed of the 1970s has repeatedly proved false. Scandal after scandal has come to light, without Trump suffering political consequences severe enough to deter or correct corrupt behaviorTrump has done his best to defeat disclosure, notably by refusing to release his tax returns. Still, the main elements of Trump’s behavior in office have become visible. There is no exact count of the public money that has flowed into Trump businesses, but at a minimum it exceeds $1.1 million. There is no count at all of the money Trump has collected from foreign governments, but it has been disclosed that representatives of 22 foreign nations have stayed at his properties. It became a public scandal that he tried to score a massive international payday for himself by holding the 2020 G7 summit at a golf resort he owns in Florida. There has been some disclosure of the flow of Republican Party funds to Trump businesses: at least $17 million since 2016. It’s murkier how much Trump pocketed from his 2017 inauguration committee, but court documents suggest that the figure might be substantial.Likewise, the defiance of congressional subpoenas happened in plain sight. Trump brought that fight to the Supreme Court and lost—but bought himself enough time to postpone any response until after the 2020 election. Many of the worst outrages of the Trump years were blurted by the president himself on live television: Yes, he fired FBI Director James Comey in order to thwart an investigation of Trump’s Russia connections; yes, he asked China and Ukraine to deliver dirt on his most likely presidential election opponent; yes, he wants to cram through a last-minute Supreme Court appointment to help him in the legal battles he expects after the 2020 vote. Americans saw and heard all this. Many cared. But not all. And not enough.Post-Watergate America was a country characterized by a strong center and weak partisanship. During the Watergate scandal, a president elected by almost 60 percent of the vote lost office when proof of his personal involvement in criminal activity turned the leaders of his own party against him. That’s a vanished world. The America of the 2020s is more polarized and partisan than at any time since the aftermath of the Civil War. Trump was elected by 46 percent of the vote, and nothing—good or bad—has much moved the dial ever since. In 2017, 2018, and the first half of 2019, Trump presided over the best economy since the late 1990s. His average approval rating never reached even 50 percent. In 2020, Trump presided over the worst sequence of disasters since the early 1930s. His poll numbers never dipped below 40 percent. When he was caught dead to rights in the Ukraine scandal, his party stayed loyal to him, with the exception of only a single senator. When he brazenly violated the law and delivered his nomination acceptance speech from the South Lawn of the White House, his party leadership all joined him there. When he was recorded admitting that he had knowingly underplayed the worst pandemic in a century, there was hardly a murmur of reproach from his own side.Disclosure assumes a political system that cares about the things disclosed. And that is not the political system the United States has in 2020.That insight is the basis for a new sequence of political reforms proposed by House Democrats September 23, the Protecting Our Democracy Act of 2020. The bill proposes more than a dozen measures to address specific abuses of the Trump years. And for the most part, disclosure alone is not considered a sufficient remedy.The first measure would restrict the presidential pardon power. It would prohibit self-pardon by the president, clarify that it is indeed illegal for a president to sell pardons, and require release to Congress of information about any pardon from which the president or his family might personally benefit.The second measure would stop the clock on statutes of limitations for any federal crime committed by the president or vice president. Because current rules forbid prosecuting the president for federal crimes, it’s unfair that he can use his period in office to outrun federal crimes he might have committed before or during his tenure.The third measure would codify the emoluments clause of the U.S. Constitution into statute. Trump brazenly and nakedly violated the clause. But the clause is not self-executing. The Constitution insists that the president should not accept payments from foreign governments. It offers no guidance as to what should happen if a president goes ahead and does it anyway. The third measure also restricts the president’s ability to pocket money from domestic interests, such as a party committee or party candidates.The fourth puts teeth into congressional subpoena powers. As things stand, it’s up to the executive branch to enforce subpoenas—which has proved quite a problem when it is the executive branch that decides to ignore them. The new proposal would allow Congress to bypass the executive and ask courts to impose fines on defiant officeholders.The fifth would reduce the president’s scope to redirect money that Congress voted to spend on one purpose and to instead spend it on a different purpose.The sixth would curtail the vast agglomeration of emergency powers horrifyingly detailed in The Atlantic back in 2019.The seventh—this one does rest on disclosure—would require the attorney general to keep a log of his or her contacts with the White House and provide that log to the Department of Justice’s inspector general twice a year.The eighth would clarify that inspectors general may be removed only for cause. It would require the president to provide documentation of that cause to Congress before the removal went into effect.The ninth would protect whistleblowers and clarify that it is indeed legal for whistleblowers to provide information directly to the relevant committee of Congress.The 10th would limit the maximum tenure of acting Cabinet officials to 120 days.The 11th would eliminate the courtesy that leaves enforcement of the Hatch Act to the president when White House personnel are involved. Trump abused this courtesy to free his staff to do political work at taxpayer expense. This measure also raises the maximum fine under the Hatch Act to $50,000 and expedites collection of those fines.The 12th and 13th measures impose new requirements on campaigns, candidates, and their families to report foreign contacts—and clarifies that it is, yes, illegal for a U.S. campaign to accept dirt on political adversaries from foreign persons and governments.You probably imagined that many of these proposals were law already. Arguably, many of them were. But a lot of existing anti-corruption law was informative or indicative, rather than punitive.In a lecture delivered in 1897, the future Supreme Court Justice Oliver Wendell Holmes Jr. said that to truly understand the law, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”Until now, however, the law around the presidency did not work that way. “Thou shalt not take foreign emoluments” may impress the honest and patriotic president. But what if the president is not honest or patriotic? What happens if that president accepts a foreign emolument? The answer turned out to be: nothing much. As a result, a dishonest and unpatriotic president grabbed with both hands, and corrupted one of the two great political parties to acquiesce.The House Democrats’ reform bill obviously will not be enacted as long as Donald Trump can wield a veto. But if Trump is ejected in this year’s election and the Senate Republicans who protected him lose their majority, the reform bill—or much of it—may become law.I’ve gone into some detail about the House Democrats’ bill to underscore how moderate it is, how respectful it is of the important prerogatives of a legitimate presidency. The bill does not, to cite just one example, forbid the president to talk to the attorney general about particular cases (although in almost every case, the president should refrain from doing that). It does not require the attorney general to inform Congress about such conversations. That would compromise the cohesion of the executive branch. It requires only that a record be kept, that it be shared at intervals with the Department of Justice’s own preexisting watchdog, the inspector general—and that it be available for later inspection by Congress if needed.The bill does not, to cite another example, empower Congress to enforce its own subpoenas by inherent authority, as 19th-century Congresses sometimes did. That could easily lead to abuses of individual rights. Congressional subpoenas will be enforced in court, and the penalties for defying subpoenas imposed only by courts.The bill does not, to take a third example, blur the status of inspectors general as executive-branch employees. It changes their status to make them more like civil servants, less like political appointees—but still chosen by, and answerable to, the executive, not Congress.Much of the bill deals with things that most of us had supposed were already rules: the president should not sell pardons, for example, or use them as part of a cover-up scheme. But it turned out that rules against corrupt pardoning had been voluntarily adopted by past presidents. If a president did not want to comply, the rule could not readily be enforced against him.In a way, you could read the bill as the Yes, Donald Trump Was a Criminal Act of 2021.And that suggests two of the bill’s maybe inevitable but still poignant unintended consequences.First, most of the Protecting Our Democracy Act is mind-crushingly morally obvious: Don’t accept clandestine political information from foreign governments. Don’t use the White House for your convention speech. The act of writing such basics into law in 2021 would lend some credibility to the future arguments of Trump’s enablers: Yes, much of what President Trump did was distasteful, but it was not strictly illegal. That’s why the country had to write new laws in 2021. I was as appalled as anybody else, but there was nothing to do—the president was acting within his rights as those rights existed at the time.That argument is mostly false. Donald Trump did violate existing law. It was not in fact legal for him to use his official powers to extort foreign governments to fabricate political dirt on his political opponents—that was already prohibited by many laws. The problem was that the enforcement of those laws depended on mechanisms that had rusted out. It will be important to underscore that point in the future. What went wrong in the Trump era was not that the president delicately tiptoed around the law. What went wrong in the Trump era was that the cops in charge of the law were asleep, or senile, or in cahoots with the president.Second, the Protecting Our Democracy Act amounts to a confession that the impeachment power is a dead letter. The House imposed the severest sanction a Congress can impose against an errant president. At trial, however, the president’s co-partisans protected him from removal—and after the trial, the president resumed his lawbreaking.There have now been four serious presidential impeachment processes in U.S. history: Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump. In retrospect, it’s clear that the important variable in the outcome was the state of party politics at the time of the impeachment.The Nixon-Trump contrast is starkest. If Congress worked in the 2020s as it had in the 1970s, important Republicans would have broken ranks with Trump, and forced his resignation. If Congress worked in the 1970s as it does in the 2020s, Nixon would have served out his term. We have fully arrived at the predicament that Laurence Tribe and Joshua Matz warned of in their book on the impeachment process: When impeachment is most needed, it is least likely to be effective; when it is most likely to be effective, it is least needed.And so, the House Democrats are making do with a fallback remedy, a second-best or third-best.These reforms are all welcome and necessary. It’s a sad reflection on the state of U.S. politics that they are needed at all. The Founders imagined that Congress could set aside political partialities to act as a court of law upon an unfit president. That hope has proved one of their less workable ideas. Americans need to accept some sad realities about the state of their law and politics. That means new legislation that works around the defects of the impeachment remedy—and takes into account the grim fact of 21st-century hyper-partisanship.
theatlantic.com
A Judge Can’t Be a Handmaid
The first I heard of Amy Coney Barrett was when her name was floated as a possible nominee for the seat left vacant on the Supreme Court when Anthony Kennedy retired. I thought she was an interesting person, although not for any reasons of policy or politics: She is a mother of seven children, several of them very young; a Catholic; a deeply accomplished and distinguished member of the judiciary. I could not prevent myself from noticing, too, how beautiful she is, and wondering how the hell she balances raising seven children with her huge career. But there was little time to ponder these questions in my heart, as Mary did the annunciation, because Brett Kavanaugh was nominated instead of her, and things got so weird so fast that she slipped my mind.Now, of course, Barrett is back in play, a possible nominee for the seat left vacant by the death of Ruth Bader Ginsburg. I hadn’t thought much about the matter until, in the act of blamelessly trying to get to the end of the internet, I came across a Newsweek story illustrated with a photograph of women wearing the now-familiar red capes with white-trimmed hoods—the universal symbol for female oppression of the most hideous kind. The headline read, “How Amy Coney Barrett’s People of Praise Group Inspired ‘The Handmaid’s Tale.’”That can’t possibly be true, I said to myself, and of course it’s not true. By the next morning, the newsmagazine had amended a correction: Correction: This article’s headline originally stated that People of Praise inspired ‘The Handmaid's Tale’. The book’s author, Margaret Atwood, has never specifically mentioned the group as being the inspiration for her work. A New Yorker profile of the author from 2017 mentions a newspaper clipping as part of her research for the book of a different charismatic Catholic group, People of Hope. Newsweek regrets the error. In journalism, there’s a name for this kind of correction. It’s called a bullshit correction. The only person who did her job correctly was the headline writer, who accurately condensed the thesis of the piece into a phrase. The mistakes were layered into the article itself, which Newsweek altered without calling the changes to the reader’s attention. There is a name for this, too, but I won’t repeat it here. The whole thing was a cupcake-size version of the Covington disaster, in which liberal journalists were so willfully blind to their own deep biases that they smeared an adolescent who was guilty only of smiling in an enigmatic and uncomfortable way.[Caitlin Flanagan: The media botched the Covington Catholic story]Times are hard and talent is expensive, but the mistakes in this piece were so obvious that we may only ascribe them to rank incompetence. That such a calumny should have been based on one reporter’s misreading of a New Yorker profile in which the subject “mentions” a “newspaper clipping” about an entirely different religious group being “a part”—and not the whole—of her “research” means you’re in uncharted territory. I myself have traveled this unmapped region, because I used to teach seventh-grade English; that is, I am familiar with the challenge of supporting a strongly held claim with weakly grasped nonfacts.It was a useless story in so many other ways. There wasn’t a single word on Barrett’s position on the Devil’s Triangle. And couldn’t the writer have placed a call to judicial expert Alyssa Milano? The incident fed into the “fake news” narrative and the suspicion that liberals disdain Christians—by being news that was fake and by betraying an obvious animus toward Christians.Is Barrett’s religious faith pondered in her heart or made evident in her approach to the law? Answering that requires the labor-intensive task of actually learning something about her. In for a penny, in for a pound.Barrett does belong to People of Praise, which is not my kind of thing—and it’s probably not your kind of thing either, as there are estimated to be only about 1,700 or so members. The group was founded in 1971, six years after Vatican II had reduced many of the strictures by which Catholics were meant to live their lives, unintentionally creating a void in the religious experience of many faithful. For some, the Catholic Charismatic Renewal filled that void, replacing the rigidity of pre–Vatican II Catholicism with the kind of ecstatic worship style of Pentecostals, including gifts of prophesy and of glossolalia. Although most People of Praise members apparently identify themselves as Catholics, the group has several practices that fall outside present-day Catholic doctrine, and—as far as I can tell—considers itself ecumenical.What’s got everyone’s hair on fire is that, according to The New York Times, “the group teaches that husbands are the heads of their wives and should take authority over the family.” But the dastardly nature of this expectation is undermined by Barrett’s being shortlisted for a nomination to the Supreme Court. If her faith has put limits on her talent and ambition, there are few signs of it; you don’t get a seat on the Seventh Circuit Court of Appeals (where she is currently is a judge) so that you can keep your hand in and earn a little pin money.[Read: Should a judge’s nomination be derailed by her faith?]During the confirmation hearings for that appointment, Dianne Feinstein informed Barrett that “the dogma lives loudly within you,” which was a personal best for the senator because in just six words she managed to insult Barrett’s faith and accuse her of a thought crime. All Americans, no matter their job or position in society, are allowed to have their “dogma” live loudly within them, as the senator well knows. The only relevant question is whether Barrett’s faith has the possibility to interfere with her judicial decisions. It might.Some will find evidence in a scholarly essay that Barrett co-authored in 1998 titled “Catholic Judges in Capital Cases.” The authors write that “litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense.” The authors discuss “the moral impossibility of enforcing capital punishment” and suggest that Catholic judges may need to recuse themselves from the sentencing phase of such cases. The essay does not discuss what Catholic judges should do in cases that conflict with other things forbidden by the Church—such as abortion, which is all but certain to face another Supreme Court challenge within the next decade. If Barrett is nominated, this essay will prompt intense questioning; at her previous confirmation hearing, she backed away from the suggestion of recusal. But the essay speaks loudly about her own belief that a particular faith—her own faith—could preclude a judge’s ability to follow the law.I’m a Catholic, more or less. I can follow along with the Mass in many languages I don’t know, and at Mass I feel connected to generations of women in my family. But People of Praise is foreign to me. If I were in the Senate, I would want to know quite a bit about it, and in particular about what it requires of its members when they operate within the secular world. In other words, what are the ecclesiastical pronouncements of her faith? These are questions that could be asked in a thorough and respectful manner. Given the national mood, I doubt that will happen. Rather, if Barrett is nominated, the confirmation hearings are likely to provide Democratic senators with an opportunity to demonstrate their assumptions of moral rectitude and preening intellectual superiority. They will eagerly display the purifying anger that feeds their insulted and enraged party. In short, they will reify certain conservative assumptions about the left such that once again, Donald Trump may claim both the low road and the upper hand.
theatlantic.com
The Pretense That Princeton Is Racist
The president of Princeton is in a pickle. This summer, Christopher L. Eisgruber received a letter from more than 300 faculty members at the university asserting “indifference to the effects of racism on this campus.” They called on him “to openly and publicly acknowledge the way that anti-Black racism, and racism of any stripe, continue to thrive” there and “to block the mechanisms that have allowed systemic racism to work, visibly and invisibly, in Princeton’s operations.”Princeton graduate students made similar claims. At the architecture school, an open letter asserted the existence of “ongoing anti-Black racism” and “white supremacy.” At the public-affairs school, a different open letter said, “The presence of an overwhelmingly white faculty creates an environment where instances of racism within the classroom often go unaddressed.”In response, President Eisgruber directed university leaders to spend the summer compiling reports on how to identify and combat “systemic racism.” And he declared in early September that while the institution long ago committed to being more inclusive, “racism and the damage it does to people of color nevertheless persist at Princeton as in our society, sometimes by conscious intention but more often through unexamined assumptions and stereotypes, ignorance or insensitivity, and the systemic legacy of past decisions and policies.” He added, “Racist assumptions from the past also remain embedded in structures of the University itself.”Those words arguably met the faculty letter’s demand to publicly acknowledge anti-Black racism at Princeton. But the same language was then cited by the Trump administration as justification for a Department of Education probe into whether the university has violated federal law.[Read: The cost of balancing racism and academia]The Civil Rights Act of 1964 declares that at institutions that receive federal funds, no person shall be subject to discrimination or denied the benefits of any activity on the basis of race.Princeton administrators have long affirmed that their institution is complying with those requirements. Given Eisengruber’s claims that racism persists at Princeton, that racist assumptions are embedded in its structures, and that systemic racism there damages the lives of Black people, the Department of Education says it wants to know if the university has been lying.The government’s letter concludes with intrusive demands to interview Princeton employees under oath and generate sensitive documents, including a list of each Princetonian who has been discriminated against on the basis of race since 2015, as well as records related to Eisengruber’s claims about “systemic” or “embedded” racism.The investigation is absurd. Princeton is highly sought after by Black applicants. In admissions it uses the race of minority applicants, who are admitted at higher rates, as a “plus” to achieve greater diversity in a way that very likely benefits Black applicants. It spends lavishly on “inclusion” efforts, holds events to celebrate (and name a building after) Black alumni, and dedicates resources to recruiting and hiring Black faculty and staff. No reasonable person deciding where federal officials should look for anti-Black civil-rights violations would probe the Ivy League University. But trolls waging a culture war against critical race theory might.As far as I can tell, the strategy is to force Princeton to either admit to serious anti-Black discrimination, risking devastating financial penalties, or else mount an affirmative case that the institution is not guilty of “systemic” anti-Black discrimination, exposing the racism claims of many administrators, faculty, and students as hyperbole. In its absurdity, then, the probe exposes the performative nature of some anti-racist rhetoric at Princeton and other elite universities.Defenders of the investigation see it that way too. In City Journal, Seth Barron characterized it as a maneuver that could neutralize the systemic-racism narrative. “If racism is institutionally embedded somewhere, the United States has a juggernaut of laws, courts, investigators, and prosecutors that can tear the offending institution into shreds and pulverize its racism,” he wrote. “So bring out your systemic racism, Princeton—let’s see it. Because if it isn’t documented or identifiable somewhere, or if it lurks below the level of consciousness as implicit bias, then it’s like phlogiston or aether, and just a form of juju or magical thinking.”[Read: The difference between first-degree and third-degree racism]So far, Princeton is denying any contradiction in its claims. On the one hand, it “stands by its representations to the Department and the public that it complies with all laws and regulations governing equal opportunity, non-discrimination and harassment.” On the other hand, “the University also stands by our statements about the prevalence of systemic racism and our commitment to reckon with its continued effects, including the racial injustice and race-based inequities that persist throughout American society.” Princeton declares, “It is unfortunate that the Department appears to believe that grappling honestly with the nation’s history and the current effects of systemic racism runs afoul of existing law.”But the Trump administration, for all its cynicism, likely does not believe that Princeton is grappling “honestly” with “systemic racism.” It likely believes that progressives at Princeton and elsewhere are overstating racism as a result of moral panic or to advance an identitarian agenda. Some skeptics of what’s come to be known as critical race theory suspect that because an overwhelming majority of Americans properly regard anti-Black racism as abhorrent, ideologues invoke racism promiscuously as a sort of shortcut to getting what they want.Harvard’s Randall Kennedy, a scholar of race and the law, is an incisive critic of that strategic hyperbole. “How racist are universities, really?” he asked last month in The Chronicle of Higher Education, before the Department of Education announced its investigation. He found widespread hand-wringing. At Dartmouth, for example, the board of trustees recently stated, “We know there are no easy solutions to eradicate the oppression and racism Black and other students, faculty, and staff of color experience on our campus.” But no example of oppression was mentioned.Kennedy cited Dartmouth’s statement while reviewing “the evasiveness, if not mendacity, of administrators” who “pander to protestors, issuing faux mea culpas that any but the most gullible observers recognize as mere public relations ruses aimed at pacification.” As he sees it, “whatever wrongs universities have perpetrated or neglected to rectify are compounded when university authorities speak thoughtlessly or insincerely about matters that cut so deeply.”An allegation of systemic racism “is a serious charge,” Kennedy insisted. “If the allegation is substantiated, it ought to occasion protest and rectification commensurate with the wrong,” but if flimsy or baseless, that should be stated too. Kennedy warned that “minority students who take such indictments at face value—unaware of strategic hyperbole—become overwhelmed by unrealistic fears of encountering racist assessments that will unfairly limit their possibilities.”Kennedy aimed that criticism at Princeton in particular. He graduated from the institution in 1973, and noted in his article that “the exploitation and exclusion of African Americans is, indeed, deeply embedded in Princeton’s history.” As for its present, however, he dissented from this summer’s faculty letter, with its claims such as “anti-Black racism has a visible bearing upon Princeton’s campus makeup and its hiring practices.” If Princeton’s racism “was as conspicuous as alleged, one would expect the ultimatum’s authors to be able to dash off some vivid, revealing examples,” Kennedy argued. He went on to call the claim of anti-Black racial exclusion implausible given various facts: prominent Black intellectuals who have made Princeton their academic home, scores of Black scholars who hold or recently held positions of academic leadership, and an African American dean of admissions. What’s more, he added, Princeton has a number of distinguished Black trustees. “These people, all Princeton alumni, are alert and capable and in demand,” he argued. “They are by no means needy. They could associate themselves with any number of prestigious enterprises. They would surely decline to contribute to or be involved with the sort of institution that the ultimatum depicts.”[Read: What is faculty diversity worth to a university?]Hyperbole about white supremacy at universities can obscure the true nature of real problems. For example, just 7 percent of faculty members at Princeton are Black, but citing that figure to prove that Princeton discriminates in hiring is misleading because, as Kennedy noted, African Americans in recent years earned only about 7 percent of all doctoral degrees. “The reasons behind the small numbers are familiar and heart-breaking,” he wrote. “They include a legacy of deprivation in education, housing, employment, and health care, not to mention increased vulnerability to crime and incarceration. The perpetuation of injuries from past discrimination as well as the imposition of new wrongs cut like scythes into the ranks of racial minorities, cruelly winnowing the number who are even in the running to teach at Princeton.” By blaming Princeton for a problem endemic to American society, activists risk misdirecting resources earmarked for diversity, equity, and inclusion to university elites rather than the people who need them most: less privileged outsiders hindered from advancement through no fault of the institution.Academic stakeholders ought to eschew strategic hyperbole when doing the important work of diagnosing and remedying problems related to racial inequality on their campuses. If they keep inflating their claims, the term racism will lose whatever power it has to grab a community’s attention and prompt urgent remedies, even in the instances when racism is in fact operating.So is Team Trump doing a good thing? Seth Barron thinks so. In that same City Journal article, he wrote, “For too long, false confessions of racial piety have been used as a cudgel to intimidate reasonable people and transform American institutions. The Trump administration is right to take the systemic racists at their word and make their contrition cost them something.”I disagree. I object to the entire witch hunt of an investigation, which Republicans would recognize as a flagrant abuse of federal power were it aimed at Liberty University. No reasonable person could conclude that an onerous probe of Princeton for anti-Black racism is the best use, or even a good use, of scarce resources to safeguard civil rights. The decision to grapple with racism should not trigger a federal investigation, whether or not that grappling is totally honest.The Trump administration’s action has drawn wider attention to real rhetorical excesses. But if it doesn’t really believe that civil rights are being violated, then it is violating the First Amendment by misusing investigative power to punish speech. A president who weaponizes the administrative state against private institutions because he dislikes their public profile is a danger to the country.
theatlantic.com
Lying for Trump Comes With a Cost
I glanced at the story, read it, and then moved on to something else. But the story of William B. Crews kept bothering me, because it might be a harbinger of things to come.Crews is—or was—an employee of the National Institute of Allergy and Infectious Diseases, the federal agency run by Anthony Fauci. While working as a public-affairs officer for NIAID, Crews was also a prolific conspiracy theorist. He spent the past six months attacking Fauci, NIAID, and the American scientific establishment more generally, on the website Redstate.com, using the pseudonym “Streiff.” On Monday, Lachlan Markey of The Daily Beast published a story unmasking him. Crews abruptly retired that same day.The United States has a long tradition of government employees criticizing their superiors. But in his extracurricular writing, Crews was not composing whistleblower memos. These were not carefully sourced revelations of wrongdoing at the agency. Instead, they were rants that accused Fauci, Centers for Disease Control and Prevention Director Robert Redfield, and many others of turning the coronavirus into a deliberate plot to undermine the Trump administration. In June, Crews attacked America’s most respected scientific bodies: “If there were justice,” he wrote, “we’d send and [sic] few dozen of these fascists to the gallows and gibbet their tarred bodies in chains until they fall apart.” In July, he attacked Fauci by name: “If you made those recommendations and they were disastrously wrong and based on bad science that you promulgated, you owe it to all of us to STFU and go away.”[Fauci to a meddling HHS official: ‘Take a hike’]These were not his only posts. “Streiff”—whose work, as of this writing, is still available on Redstate.com—also had views on the riots in Portland, Oregon, and Kenosha, Wisconsin; on Trump’s speech at Mount Rushmore; on Attorney General Bill Barr (favorable) and former National Security Council staffer Alexander Vindman (unfavorable); on Fox News’s Tucker Carlson (favorable) and CNN’s Jake Tapper (unfavorable). Nothing that he wrote was clever or surprising. Day after day he produced boringly predictable pablum, the sort of average-vile stuff pumped out on Fox or Breitbart News all the time. The only thing remarkable about this writing is that Crews was doing it while simultaneously being employed by a government body whose most important task is to fight exactly the kinds of conspiracy theories he was producing. He may even have been doing both at the same time. Markey could not determine whether Crews actually filed any of his posts from his office computer, but many of them first appeared during weekday working hours.In the everyday world, this kind of behavior would be considered bizarre: What type of person betrays his co-workers this way? But in the Trump administration, it is not unusual, especially among people who work at health agencies. Recently, Michael Caputo, the Trump-appointed head spokesman for the Department of Health and Human Services, was caught meddling with scientific reports on the pandemic put out by the CDC, which, like Fauci’s agency, is part of HHS; he then posted a Facebook video claiming that scientists at the CDC were plotting “sedition” and worse. “You understand that they’re going to have to kill me, and unfortunately, I think that’s where this is going,” Caputo said. “There are hit squads being trained all over this country,” he continued: “If you carry guns, buy ammunition, ladies and gentlemen, because it’s going to be hard to get.”Caputo, who has been diagnosed with cancer, has now gone on leave. But he was not the only one in his office who made wild statements expressing radical views. Yet another HHS political appointee, Paul Alexander, regularly sent emails harassing employees of the CDC. He described its deputy director, the physician Anne Schuchat, as “duplicitous” for saying she hoped the country could “take [the pandemic] seriously and slow the transmission … we have way too much virus across the country.” Alexander also regularly sought to censor weekly scientific and statistical reports—the “Morbidity and Mortality Weekly Report,” to be precise—written by the nation’s most important public-health institution, describing them as “hit pieces” targeting the Trump administration.My Atlantic colleague David A. Graham recently noted that Caputo may well represent the face of a second-term Trump administration. Instead of people with expertise and competence, the White House and Cabinet agencies will contain ideologues with no experience—or, worse, ideologues with a long record of bad judgment and terrible errors. But the cases of Crews, Caputo, and Paul Alexander suggest an additional conclusion: that people whose jobs require them to provide “alternative facts” on a regular basis might eventually break under the strain. Maybe there is a price to be paid, in loss of mental clarity, for supporting the fantasy world needed to sustain this president.[Read: Anthony Fauci, lightning rod]This is worth contemplating, because in this election year we are grappling with something entirely new. The president, the Republican Party, and its campaign machine are collectively seeking to create a completely false picture of the world. This isn’t just a matter of wishful thinking or a few white lies. The president’s campaign staff needs voters to believe that the virus is over, or else that it never mattered; that 200,000 people did not really die; that schools aren’t closed; that shops aren’t boarded up; that nothing much happened to the economy; that America is ever more respected around the world; that climate change isn’t real; that the U.S. has no legitimate protesters, only violent thugs who have been paid by secretive groups. This fantasy has to be repeated every day, in multiple forms, on Fox News, in GOP Facebook ads, on websites like RedState. Inevitably, it will affect people’s brains.It is easy to see why Trump appointees who work in institutions that deal with science and public health might be the first to break: Their jobs require them to grapple every day with data that they have to deny. But the same dissonance may also be fueling some of the more ridiculous conspiracy theories now circulating online. The adherents of the QAnon cult may have literally been driven past the point of reason. In order to make sense of the world they can see all around them, they have created an elaborate and obviously false explanation—that an omniscient Trump is fighting a cabal of deep-state Satanists and pedophiles. No wonder Republicans, instead of shunning QAnon believers, are working to elect some of them to Congress in November. They genuinely serve a function, helping Trump supporters navigate the gap between the reality they live in and the fiction they see on Fox and Facebook.Looking at this bizarre moment in a longer lens can be quite sobering. Parallel situations are hard to come by, and I can think of no similar election to take place in any democracy, no moment when Danes or Spaniards were forced to choose between reality and fiction. The only historical parallels come, inappropriately, from Stalin’s Soviet Union, Maoist China, and other regimes that created elaborate propaganda versions of the world and then forced people to pretend they were true. But those alternative realities were backed up by violence. America does not have that kind of police state. There are no mass arrests or concentration camps for political dissidents. Nobody is forcing people to swallow the Republican Party fantasy. The decision to do so remains purely voluntary.That, of course, is everyone else’s salvation: Voters can still choose to grapple with reality—to read real news, to seek accurate information, to use our daily experience as a guide before deciding what to believe—without fear. But for people like “Streiff”—people who actually work in this administration, and people who would choose to work in a second Trump administration—reality might no longer be an option.
theatlantic.com
Photos of the Week: Wishing Moons, Runway Swim, Shawnee Sunset
Autumn colors in Wales, a ripple maze in Taiwan, “picture day” at a Connecticut school, a funnel cloud in Spain, protests in Kentucky, a socially-distanced beauty pageant in Venezuela, flowers among high-rises in South Korea, surfing in South Africa, and much more.
theatlantic.com