Trading the Soul of Conservative Law for …. Wales?

Lately, I’ve been musing on Robert Bolt’s portrayal of Richard Rich in "A Man for All Seasons." It tells the story of Sir Thomas More, the former lord chancellor to King Henry VIII who, ultimately, was put to death for his alleged treasonous refusal to acknowledge the annulment of the king’s marriage to Catharine of Aragon and his subsequent remarriage to Anne Boleyn. Sir Thomas, who had steadfastly refused to speak to the issue (taking solace in the legal doctrine that “silence betokens assent”) was convicted on the basis of Rich’s perjured testimony.

As the movie portrays it, after the denouement, as Rich was leaving the trial chamber, More stopped him to observe a new chain of office hanging around Rich’s neck. He was told, by Thomas Cromwell, that Rich had been appointed the Welsh attorney general.

At that point More is left to wonder aloud: “For Wales? Why Richard, it profits a man nothing to give his soul for the whole world . . . but for Wales!”

* * *

Sometimes I think about my fellow conservatives who supported Donald Trump's presidential campaign. To be honest, I understand how they could do so—especially those, like me, in what is broadly called the conservative legal movement (I joined the Federalist Society in 1983).

Before the election, a responsible conservative lawyer might, perhaps with only slightly-rose-colored glasses, have reasonably thought that a Trump presidency was superior to a Clinton presidency. He or she might also reasonably have considered the promise of policy victories and magnified the importance of these victories while mentally minimizing the prospect of presidential disaster. He’ll surround himself with good people. People of goodwill are going to join his administration. With a Republican president we can [fill in the blank], where the blank is “get a good Supreme Court nominee” or “repeal Obamacare” or “enact a good taxcut.”

All of these were plausible theories before the election. And while I disagreed with these assessments as a predictive judgment, I could understand and appreciate them and also contemplate that my skepticism might be wrong.

What I can’t understand today is how my fellow members of the conservative legal movement don’t change their minds, even as the evidence of their error mounts. The malignant deviancy that is the Trump presidency continues its steady erosion of core American principles.

I leave aside the questionable non-legal policy determinations, even the ones that might have catastrophic consequences (such as threatening North Korea with nuclear "fire and fury"). I leave aside as well the ever-growing evidence that the president is temperamentally unsuited to his position, as his Mika Brzezinski facelift tweets so amply demonstrate. Those, by themselves, ought to give anyone pause (and how any thoughtful conservative could not have seen the misogyny last year for what it is still amazes me).

What I'm focusing on, instead, is the issue of how Trump degrades the principles of American conservatism. He diminishes the U.S. role in the world and defines downward deviance from accepted norms of constitutional behavior. He has systematically assaulted the core of this country’s identity, transforming it in ways from which the country may never recover.

To take one aspect that is particularly striking, America First (itself a phrase with pro-Nazi resonance) is not American exceptionalism. Indeed, it is the opposite of our tradition of exceptionalism—a foundational set of ideals that has defined our country. America First rhetoric says that America is just like every other country in its selfishness and self-regard. This diminishes our nation and society in ways that are incalculable. In Trump’s eyes, we are no Reaganesque “shining city on a hill,” no Emersonian “poem in our eyes.”

For another example, consider the president’s ongoing assault on the attorney general (and on law enforcement more generally). This is nothing less than an effort to undermine the rule of law and the independence of the legal process. To be sure, the application of law responds to political factors—that, after all, is why the attorney general is a politically appointed position. But the tradition of relative independence and reasonable efforts to avoid investigative interference are norms that exist for a reason. Assailing them is truly, as Jack Goldsmith has said, the act of a kamikaze president. Threatening to fire the attorney general for, in essence, doing exactly what was required in this instance is nothing less than an assault on law and an assertion of monarchical power.

Then there is the president’s obsession with his former opponent, Hillary Clinton. He castigates his attorney general for not considering the prosecution of his political opponent—much as happens in authoritarian countries across the globe. This is not OK. Nor are his assaults on the independence of the judiciary. And his continuing assault on a free press as “fake news.” And ditto, again, for his seeming encouragement of police brutality. Lord knows, I am no fan of Hillary Clinton’s, I am certain that judges often substitute their own policy preferences for law, I believe that the press has a liberal bias and makes mistakes, and I think that gangbangers are a serious danger. But this wholesale attempt to subvert our system of legal governance and encourage arbitrary uses of power reduces America to the image of a banana republic—a comparison that is, as the Washington Post says, unfair to bananas. A summary of Trump's actions in the past four weeks is so ludicrous that it sounds like a joke—but, sadly, it is not.

The straw that breaks the camel’s back, or at least should, is the president’s encouragement of racist, xenophobic, anti-Semitic white supremacists. When a neo-Nazi says “God bless you” to a politician, the only acceptable response is rejection—not “many side”-ism. As John Podhoretz has said, Charlottesville proves that the Trump doubters were right in all the fundamentals. It was past time for the president to condemn white supremacists—yet as soon as he did so (under pressure from his staff), he returned to the abhorrent rhetoric that “both sides” were to blame. This is moral equivalency at its worst; any president who cannot see the white nationalist movement for what it is is so blind to morality as to be undeserving of support.

All of these characteristics, in turn, run counter to the values that animate the conservative legal movement: limited government; peaceful transitions of power; judges who say what the law is, not what it should be; a free press; prosecutorial independence; equality of opportunity; a color-blind society; and the rule of law. The contrast is so great that I cannot comprehend why President Trump is not more widely condemned. No conservative lawyer (at least no lawyer who thinks that his or her profession is in the least bit a public trust) can, or should, support the erosion of critical public legal institutions that Trump has come to exemplify.

To this my conservative friends (especially the lawyers) have a rejoinder. It is so common that it even has a name: We call it the “But Gorsuch” syndrome.

The argument, of course, is that a good Supreme Court justice is worth all of the policy pain and political embarrassment that come with it. Say what you will, but at least these conservative lawyers (unlike those seeking Obamacare’s repeal or a taxcut) have collected on their wager: Neil Gorsuch has demonstrated that he will be a formidable conservative jurist, of that I have no doubt (and I think the same would be equally true of the others President Trump has suggested he would nominate). In a narrowly focused way, this pleases me personally—as I believe in the efficacy of conservative jurisprudence.

But seeing victory in this narrow area of public policy requires conservative lawyers to disregard the broader context and to, in effect, sell their souls. The movement I joined more than 30 years ago stood for something real—a reality that Trump traduces every day of his presidency.

If you march shouting “blood and soil” and “Jews will not replace us,” you are an anti-Semite. If you threaten a Charlottesville synagogue, you are an anti-Semite. If you march with any of these Nazi racists, you are not a “very fine” person; you are an enabler of racism and anti-Semitism. If you excuse these acts by saying there is violence on both sides, as President Trump did, you are an enabler of racism and anti-Semitism and unfit to lead this great nation.

I do not see how any conservative lawyer can, in good conscience, stay the course with this president. If you continue on this course—if you voluntarily choose to support Trump or to join his administration—you too are enabling the destruction of American values. In many ways, you are worse than Trump. For while he is a petulant man-child without any sense of right or wrong, you know that this is wrong. You know that you have sold your soul.

You wear the chain of office for Wales . . . but for what? For the courts? At what expense to your principles? The silence is deafening.