Conservatism Is Not The Same As Fascism, But It Always Leads There
On Sunday, mouthy hereditary billionaire/freshman Democratic Congressman Dan Goldman told Jan Psaki on MSNBC that Trump’s rhetoric “is really getting dangerous, more and more dangerous. It is just unquestionable at this point that that man cannot see public office again. He is not only unfit, he is destructive to our democracy, and he has to be, he has to be eliminated.” Goldman’s a putz and the next day, on Twitter, he apologized for saying aloud what we all secretly wish, some not so secretly. A poor word choice? Sure, sure. A poor choice of wording might be to say “eliminated with his whole family and inner circle” (I mean what did Barron do to hurt anyone?) or maybe “eliminated in the most horrific excruciating pain that lasted for weeks so that he begged to be… eliminated.” But eliminated is a problem? Give me a break!
Chris Christie apologized for having voted for him: “I don’t think he was the right president at the right time. I voted for him and I was wrong. And I ain’t pardoning him because he deserves it.” That was mealy-mouthed and it wasn’t nearly enough of an apology. He needs to say that he’ll vote for Biden in 2024. No Republican's apology is enough without that.
On Tuesday 3 very serious Republican attorneys, George Conway, J. Michael Luttig and Barbara Comstock, wrote an OpEd for the NY Times: The Trump Threat Is Growing. Lawyers Must Rise to Meet This Moment. For the last couple of decades, Gallup has been measuring now much trust Americans have in people from various professions. Telemarketers, Members of Congress and lobbyists are always at the very bottom of the list. Nurses, medical doctors and pharmacists are at the top. 79% rate nurses very high or high when it comes to honesty and ethical standards. 1% rate them very low. Members of Congress are rated high and very high by 9% and very low by 25%. Lawyers are a lot closer to Members of Congress than they are to nurses— 21% high or very high and 9% very low. Just sayin’. I mean, I’m not sure that many people expect lawyers to get us out of a mess they largely caused— nor do they expect Republicans to get us out of a mess they entirely caused. But these is what this 3 Republican lawyers had to say:
“American democracy, the Constitution and the rule of law are the righteous causes of our times, and the nation’s legal profession is obligated to support them. But with the acquiescence of the larger conservative legal movement, these pillars of our system of governance are increasingly in peril. The dangers will only grow should Donald Trump be returned to the White House next November. Recent reporting about plans for a second Trump presidency are frightening. He would stock his administration with partisan loyalists [Republican lawyers] committed to fast-tracking his agenda and sidestepping— if not circumventing altogether— existing laws and long-established legal norms. This would include appointing to high public office political appointees [Republican lawyers] to rubber-stamp his plans to investigate and exact retribution against his political opponents; make federal public servants removable at will by the president himself; and invoke special powers to take unilateral action on First Amendment-protected activities, criminal justice, elections, immigration and more.”
They then wandered off into never-never land, admitting that the right-wing “standard-bearer for the conservative legal movement,” the Federalist Society, “has failed to respond in this period of crisis.” Actually the Federalist Society very much did respond— in the same way that the NSRB (which every German lawyer was obligated to join) and the NSDJ (which every German judge was obligated to join) gave Hitler’s agenda a veneer of of legitimacy. Lawyers played a key and crucial role in implementing Nazi policies, providing legal justifications for the regime's actions. And that included the German Supreme Court, the Reichsgericht (as well as a kangaroo court the Nazis set up, the Volksgerichtshof, a special political court). Starting in 1933, Hitler gradually replaced members of the Supreme Court with Nazi party members in a relatively slow, deliberate manner, attempting to maintain aa appearance of legality. But in 1933, almost half of the 48 justices were dismissed— Jews, political opponents of the Nazis and judges who were considered to be too liberal. The rest of them had to sign an oath of loyalty to Hitler and they were warned that they would be dismissed if they did not support the regime.
None-the-less, Conway, Luttig and Comstock wrote that “That is why we need an organization of conservative lawyers committed to the foundational constitutional principles we once all agreed upon: the primacy of American democracy, the sanctity of the Constitution and the rule of law, the independence of the courts, the inviolability of elections and mutual support among those tasked with the solemn responsibility of enforcing the laws of the United States. This new organization must step up, speak out and defend these ideals.” Um… “we once all agreed upon?” Is that so? Is that how Trump found all the fascist justices and judges he appointed to the courts? Conservative Republican lawyers like Stephen Miller, John Eastman, Sidney Powell, Rudy Giuliani, Steve Bannon, Jay Sekulow, Todd Blanche, Susan Necheles and Joe Tacopina? Did they agree too? What about Josh Hawley? Marco Rubio? Mike Lee? Marsha Blackburn? JD Vance? Tom Cotton? Ron Johnson? Ted Cruz? MAGA Mike? Matt Gaetz? Tim Burchett? Andy Ogles? Bob Good? Dan Bishop? Matt Rosendale? Chip Roy? Andy Biggs— all conservative Republican lawyers… and insurrectionists. Are they invited?
Leaders of the legal profession should be asking themselves, “What role did we play in creating this ongoing legal emergency?” But so far, there has been no such post-mortem reflection, and none appears on the horizon. Many lawyers who served in the last administration— and many on the outside who occupy positions of influence within the conservative legal community— have instead stood largely silent, assenting to the recent assaults on America’s fragile democracy.
We were members of the Federalist Society or followed the organization early in our careers. Created in response to left-liberal domination of the courts, it served a principled role, connecting young lawyers with one another and with career opportunities, promoting constitutional scholarship and ultimately providing candidates for the federal bench and Supreme Court.
But the Federalist Society has conspicuously declined to speak out against the constitutional and other legal excesses of Mr. Trump and his administration. Most notably, it has failed to reckon with his effort to overturn the last presidential election and his continued denial that he lost that election. When White House lawyers are inventing cockamamie theories to stop the peaceful transition of power and copping pleas to avoid jail time, it’s clear we in the legal profession have come to a crisis point.
We are thankful that there were lawyers in the Trump administration who opted to resign or be fired rather than advance his flagrantly unconstitutional schemes. They should be lauded.
But these exceptions were notably few and far between. More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. The actions of these conservative Republican lawyers are increasingly becoming the new normal. For a group of lawyers sworn to uphold the Constitution, this is an indictment of the nation’s legal profession. Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.
We must rebuild a conservative legal movement…
Why? So they can do it again? Doesn’t conservatism inexorably lead to hated of democracy and fascism? Let’s get real, ladies. Yes, “There is a need and demand for… [a] new legal movement that [is]… Pro-democracy, pro-rule-of-law…” I’m sorry to inform you… Conservatives are not in that club. One or two, here and there? Sure, most of them are like Stephen Miller, Ted Cruz, Josh Hawley and Marsha Blackburn. Sorry, that must hurt, especially if you really “believe it is necessary to build a legal movement [that will]… speak out as vocally and forthrightly as is necessary to meet the urgency that this moment requires.”
Monday evening The Post published a column by Aaron Blake, noting that Señor Trumpanzee “left the presidency with the lowest average approval rating for a tenure in modern history, at 41%… bottoming out at 29% after Jan. 6, 2021.” And now Trump has an actual shot to reclaim the White House. Unimaginable! Blake suggests it’s because Americans have “short political attention spans.” Trump’s approval rating has improved since he was kicked out of office. (Also— 74,223,975 imbeciles voted for him in 2020.)
Blake pointed out that “Polling shows as many as one-third of Americans acknowledge they don’t understand Trump’s criminal charges very well. (Plenty of others could be overselling their awareness.) Lots of Republicans, in particular, appear woefully unfamiliar with the basic underlying facts. Most Republicans do at least, though, say Trump did something wrong in one of his criminal cases. A majority of Americans overall believe Trump broke the law. And a near-prohibitive number of Americans say Trump being convicted would effectively disqualify him; the big recent New York Times-Siena College poll showed a five-point Trump lead in key swing states becoming a 10-point deficit if Trump were convicted. All of which suggests that views of Trump could dim as the 2024 general election refocuses things on him and his presidency. Democrats can feel somewhat optimistic about a reversion to the mean if they can message this effectively. Whether it would be enough is another matter— particularly given that the incumbent president is about as unpopular as Trump was during his White House tenure.”