A deal with the devil: embracing complicity, abandoning principle

A deal with the devil: embracing complicity, abandoning principle February 2, 2017

“All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”

That’s not from conservative columnist David Brooks’ New York Times column on Tuesday, but that column — “Republican Fausts” — was very clearly Brooks attempt to address that question. Brooks is an archetypal professional Very Serious Person and not a reliably trustworthy writer, but his column stated some timely truths that need to be said, firmly, by people like David Brooks — by the designated conservatives and Very Serious People who, deservedly or not, serve as semi-official arbiters of propriety and acceptability.

Brooks bluntly states that Republicans like himself are morally obliged to oppose Donald Trump — to take sides against him. And he bluntly states why that is so:

In the first place, the Trump administration is not a Republican administration; it is an ethnic nationalist administration. …

Second, even if Trump’s ideology were not noxious, his incompetence is a threat to all around him. … It seems that the Trump administration is less a government than a small clique of bloggers and tweeters who are incommunicado with the people who actually help them get things done. Things will get really hairy when the world’s problems are incoming.

Third, it’s becoming increasingly clear that the aroma of bigotry infuses the whole operation, and anybody who aligns too closely will end up sharing in the stench. …

Fourth, it is hard to think of any administration in recent memory, on any level, whose identity is so tainted by cruelty. The Trump administration is often harsh and never kind. …

Brooks goes on to commend former Bush administration official Eliot Cohen’s Atlantic essay, “A Clarifying Moment in American History.” Cohen, a former counselor to Secretary of State Condoleeza Rice, initially urged principled, competent conservatives to serve their country by joining the newly elected Trump administration. “Having professionals serve who remember that their oath is to support and defend the Constitution — and not to truckle to an individual or his clique — will be more important than ever.”

That lasted about two days. He quickly realized — for all the reasons Brooks outlines above — that Trump’s executive branch had no room and no use for principled conservatives.

“Stay away,” Cohen advised his fellow conservatives. “They’re angry, arrogant, screaming ‘you LOST!’ Will be ugly.” Cohen now regards it as impossible for “professionals … who remember that their oath is to support and defend the Constitution” to serve in the Trump administration. Attempting to work for, or even to work with, the Trump administration, Cohen argues now, is to stand in opposition to that Constitution and to be willing to be involved in the wrongdoing of others:

To friends still thinking of serving as political appointees in this administration, beware: When you sell your soul to the Devil, he prefers to collect his purchase on the installment plan. Trump’s disregard for either Secretary of Defense Mattis or Secretary-designate Tillerson in his disastrous policy salvos this week, in favor of his White House advisers, tells you all you need to know about who is really in charge. To be associated with these people is going to be, for all but the strongest characters, an exercise in moral self-destruction.

For the community of conservative thinkers and experts, and more importantly, conservative politicians, this is a testing time. Either you stand up for your principles and for what you know is decent behavior, or you go down, if not now, then years from now, as a coward or opportunist. Your reputation will never recover, nor should it.

That’s where David Brooks lands too, using the same deal-with-the-devil analogy:

The danger signs are there in profusion. Sooner or later, the Republican Fausts will face a binary choice. As they did under Nixon, Republican leaders will have to either oppose Trump and risk his tweets, or sidle along with him and live with his stain. …

This is not a normal administration. It is a problem that demands a response. It is a callous, bumbling group that demands either personal loyalty or the ax.

… With most administrations you can agree sometimes and disagree other times. But this one is a danger to the party and the nation in its existential nature. And so sooner or later all will have to choose what side they are on, and live forever after with the choice.

Brooks’ column, like Cohen’s before it, produced a hearty round of somber head-nodding from the International Brotherhood of Very Serious People. This was, they all agreed, undeniably true.

Murnau
F.W. Murnau’s “Faust,” 1926.

But then about 12 hours later they all changed their minds. The same ignorant, immoral, cruel, ethno-nationalist, incompetent bully that they’d all just agreed was a diabolical Mephistopheles nominated a fellow “principled conservative” and Very Serious Person to serve as a justice on the Supreme Court.

And this, they all agreed, was awesome.

So never mind all that about the existential threat to party and nation. What’s a little bit of cowardice and opportunism when there’s a chance to score points in the class wars and culture wars by overturning precedent with another series of 5-4 decisions?

And please forget all that business about this being a “clarifying moment in American history” that will produce “horrified wonder in our grandchildren’s history books.” Because Trump’s pick — Trump’s man, Trump’s servant — turns out to be Neil Gorsuch. He is, you see, a “principled conservative” who will “support and defend the Constitution.” And he’s a card-carrying member of the IBVSP.

The Brotherhood rushed out to commend their brother. Jeffrey Rosen — who clerked with Gorsuch on the U.S. Court of Appeals — took to National Public Radio to reassure us that this was an excellent deal with the devil, and that the nominee would most certainly serve both the Constitution and Mephistopheles without compromising any of those storied “conservative principles.”

“I think he would be quite willing to impose limits on the powers of the presidency or Congress if he thought that they exceeded their constitutionally assigned bounds,” Rosen said of Gorsuch. He argued that such principled commitment to the Constitution makes Gorsuch an excellent choice for the Supreme Court.

And then Rosen said something utterly ridiculous and untrue —

If things really got dramatic in terms of breaking constitutional norms that have been in place for a long time, I believe that the conservative as well as the liberal justices on the court would be an effective backstop.

Rosen is saying this in the context of the nomination of his friend to fill a Supreme Court seat that has been vacant for the past year because Congress explicitly and enthusiastically “exceeded their constitutionally assigned bounds.” Republican senators straight up shredded their constitutional duty — “breaking constitutional norms that have been in place for a long time” — in order to prevent President Obama from fulfilling his constitutional obligation to fill that seat.

You can’t ignore the outright theft of Merrick Garland’s seat on the Supreme Court and pretend to give a rat’s ass about the “constitutionally assigned bounds” of the presidency and Congress, or about “constitutional norms.”

And you absolutely cannot participate in the theft of that seat while claiming to be a “principled conservative” who pledges to “support and defend the Constitution.”

Gorsuch’s willingness to participate in and benefit from this unprecedented, unconstitutional, purely partisan power-grab is disqualifying. Rosen says his friend “calls himself an originalist and a textualist” and that “He defines that as a judge who separates his political from his constitutional preferences.” Nonsense. He is currently, actively, emphatically demonstrating right now that his political preferences take precedence over constitutional norms.

Doubly so, because we’re dealing with two things here — two ways in which Neil Gorsuch is currently demonstrating that he regards partisan politics as a higher priority than the Constitution. First is the unseemly theft of Obama’s appointment. And second is his willingness to be Trump’s tool — to glad-hand and smile for pics with the very anti-constitutional devil that the IBVSP had just, rightly, warned against making any such deals with. If one is truly a “principled conservative” devoted to the Constitution above all, one shouldn’t be cheerfully participating in a deal with the devil during the same week that he fired his acting attorney general and apparently urged his Customs & Border Protection agency to disregard lawful orders from multiple courts.

The context of this appointment in every way reaffirms Cohen’s advice to “principled conservatives”: Stay away.

Neil Gorsuch had that option. He didn’t take it. And now he’ll be paying on the installment plan and all those conservative principles he might once have valued will be things he cannot afford to keep.

“All of us face the problem of complicity,” Neil Gorsuch wrote.* “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”

And now we have his answer.

– – – – – – – – – – – –

* That passage is stunning because it’s the opening of his appellate opinion in the Hobby Lobby case. It’s a nice, extended bit expressing empathy for the Green family, the billionaire owners of Hobby Lobby, recognizing the difficulty they were facing having to contend with the possibility of their personal complicity in providing health care for women that violated their own, personal and deeply held religious convictions.

That’s what’s so strange about this passage — and about the legal logic of Gorsuch’s concurrent opinion. It’s all about the Greens themselves, as people. It’s like he didn’t even bother to read the name of the case — Burwell v. Hobby Lobby Stores Inc. That “Inc.” there explains why Gorsuch’s focus on the Greens themselves is either misled or misleading.

Individuals — human persons who may have sincere, deeply held (albeit anatomically falsifiable) religious opinions — are not identical to corporations. That’s the whole point of incorporating — of creating a legal entity that is separate and distinct from those individuals. It’s what keeps the Greens from being personally liable for every expense, every slip-and-fall, every tax, every regulatory compliance, etc., incurred by Hobby Lobby Stores Inc. Conflating the Greens with the corporation — deliberately or confusedly — allowed the Hobby Lobby ruling to create constitutional rights for corporations based on the feelings or convictions of the legally distinct and separate individuals who formed those corporations. That’s not good. Nor is it “principled.”

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