Kavanaugh’s Obamacare ruling: Part II

The New Neo Posted on by

[NOTE: Part I can be found here.]

In evaluating judicial nominations and predicting the drift of a judge’s future decisions, one caveat I would offer is that nearly any judge with a long history is going to have decided some cases in ways that are not to your liking. It’s the aggregate that matters more, and just about everyone agrees that Brett Kavanaugh’s body of decisions taken as a whole is markedly conservative. But, as was clear in the Jacobs article discussed in Part I of this series, some people will be emphasizing whatever in that history they find to be at fault. And Kavanaugh’s history of rulings is long, so it’s not surprising there are possibilities for criticism and doubt about certain decisions of his.

But most important is the question: what does Kavanaugh’s future as a justice hold? Not only whether he will be given the Senate stamp of approval (after all, his possible elevation to the Supreme Court the only reason we are concerned with him right now), but will he be a consistently conservative justice if and when he becomes a SCOTUS member?

After all, it’s hardly a given that past performance is a prediction of future performance, especially with supposedly-conservatives who join the Court. I believe that previous disappointment with the later record of other purportedly conservative justices is the reason for articles such as Jacobs’—the authors are trying to predict the future and to scope out the degree of conservatism of each candidate and the depth and durability of their dedication to conservative principles.

Once you’re seen what happened with the transformation of justices Earl Warren and David Souter, and to a much lesser degree with Anthony Kennedy himself, it pays to be skeptical. However, although appointed by the Republican (although not conservative) President Eisenhower, and a Republican himself, Warren had a record as a progressive as governor of California prior to his SCOTUS stint. What’s more, Warren had never been a judge before and therefore had no record whatsoever of pre-SCOTUS judicial decisions (he had been a prosecutor and AG, however).

In addition, with Warren Eisenhower “wanted what he felt was an experienced jurist who could appeal to liberals in the party as well as law-and-order conservatives.” Doesn’t sound like a conservative resume to me, even before his appointment. His liberal turn as justice probably shouldn’t have come as a complete surprise.

As for Souter, he did have a lengthy record as a judge and was thought to be conservative one. However, tellingly, “In his testimony before the Senate…he portrayed himself as a moderate who disliked radical change and attached a high importance to precedent.” Even more importantly, I believe, is the fact that, “In the state attorney general’s office and as a state Supreme Court judge, he had never been tested on matters of federal law.” So it would have been difficult to predict his positions on those matters. What’s more, Souter ruled with the conservatives on the Court for several years, and only turned liberal slowly. But turn he did.

I don’t know how Kavanaugh will ultimately turn out, nor could I. I will say, however, that although there are marked and glaring exceptions, most conservative justices do stay conservative (think Scalia and Thomas, just to take two recent examples). And in Kavanaugh’s case there is a fairly lengthy record of conservative decisions to go on, including matters of federal law, which is more of an indication of his propensities than if he had only been a judge for a short while or a state judge like Souter.

In general, I think there are two reasons that supposedly-conservative justices sometimes drift leftward. The first is the temptation of power: to remain conservative, a justice needs to hold the line and not expand the power of the Court (and therefore his/her own power) to make new law, whereas liberal justices love to find penumbras and the like that allow them to expand the reach of government and/or create a right that previously didn’t exist. That is tempting, is it not? The longer a person spends in the rarefied atmosphere of the Court, the more seduced he/she can become by that power to change things, coupled with the idea of his/her own brilliance and remarkably good judgment. Change by the mechanism of a SCOTUS decision is fast compared to the often-frustrating pace of Congressional changes, and this presents an additional temptation for a justice.

A second reason for leftward drift can be the influence of other justices. In the past, during times when there was a minority of conservatives justices on the Court and the rest were liberal, that human tendency among many people to be influenced by others was probably operating for some justices whether they realized it or not. Humans are social creatures, justices are human, and groups often exert an influence. Now, however, the Court is more evenly balanced or even tilting conservative (that’s what all the recent fuss has been about on the left, after all). So now there may be more reinforcement for holding the conservative line, and this should help Kavanaugh stick to his conservative principles.

Kavanaugh’s Obamacare ruling: Part I

The New Neo Posted on by

One of the reservations some conservatives have about Brett Kavanaugh is his ruling in the Obamacare case in 2011—not as a SCOTUS member, of course, but when Kavanaugh was on the D.C. Circuit and that court considered Obamacare’s constitutionality.

I agree that the SCOTUS Obamacare ruling was very poorly-reasoned. But until today—when I did some quick research—I was unfamiliar with Kavanaugh’s earlier role. The main article, by Christopher Jacobs, criticizing him from the conservative point of view is this one, published recently in the Federalist. And this article by Justin Walker, appearing at the same site, is the rebuttal—the defense of Kavanaugh.

Here’s an excerpt from the first article, the one by Jacobs:

Kavanaugh’s dissent [from the other two judges, who had ruled the mandate passed muster] arose from his belief that the 1867 Anti-Injunction Act precluded the court from deciding the merits of the individual mandate. The Anti-Injunction Act prevents individuals from challenging the validity of taxes in court until after they have paid them, which if applied to Obamacare’s mandate (which took effect in 2014) meant that a court challenge would not ripen until individuals had paid the mandate penalty on their taxes—i.e., in spring 2015, or nearly four years after the D.C. Circuit ruling.

Kavanaugh spends the better part of 50 pages—longer than the majority opinion justifying the mandate as constitutional—analyzing the Internal Revenue Code, and the Anti-Injunction Act, to support his belief that the mandate qualified as a tax under the act, forestalling any legal or constitutional challenge until after individuals had paid it…

The Supreme Court ultimately disagreed with Kavanaugh’s Anti-Injunction Act analysis. In 2012, Roberts ruled that Obamacare’s individual mandate functioned as a penalty for purposes of the Anti-Injunction Act—meaning the act did not apply, and the court could proceed to decide the merits of the underlying case—even as he concluded that the mandate functioned as a tax for purposes of determining its constitutionality

That sleight-of-hand by Roberts, by the way, was one of the most highly criticized aspects of the SCOTUS Obamacare ruling, and Kavanaugh had nothing to do with it.

To continue:

In Kavanaugh’s view, the mandate could fit “comfortably” within Congress’ constitutional powers. Even as he “do[es] not take a position her on whether the statute as currently written is justifiable,” Kavanaugh concludes that “the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight” (emphasis in the original).

Several pages thereafter, Kavanaugh continues to answer a question nobody asked him, giving the legislature instructions on how to remedy the in-his-view minor constitutional infirmity.

That is the objection—and the fact that SCOTUS used similar reasoning to Kavanaugh’s in the part of its decision that found the mandate to be a tax. But there were an enormous number of articles out there proclaiming much the same thing, and Roberts certainly didn’t have to look to Kavanaugh’s dissent to find reasons to declare the Obamacare mandate/penalty a tax when it suited his purposes to do so.

In fact, for what it’s worth, my own point of view is that it was a tax—an unequal and therefore unconstitutional capitation tax (you can find articles arguing the same point here and here, although to the best of my knowledge none of the appellate judges adopted that point of view).

In addition, Congress didn’t need Kavanaugh’s advice to have re-written the law so that it conformed better to the tax definition. Again, there was plenty of such advice out there without Kavanaugh. The problem there was political—they couldn’t change it because they had lost Congressional support for it. It barely squeaked by to begin with.

Here’s an excerpt from the article written by Walker in Kavanaugh’s defense:

In 2011, two judges on the D.C. Circuit upheld the Obamacare individual mandate under the Commerce Clause. Kavanaugh dissented from that decision, which was authored by the respected Judge Laurence Silberman, a Reagan appointee. Kavanaugh explained that Obamacare could be challenged as unconstitutional, but that a federal jurisdictional statute required such a challenge to be brought in the future.

Critically, and almost entirely absent from Jacobs’ account of the decision, Kavanaugh then called the individual mandate “a law that is unprecedented on the federal level in American history” and observed that upholding the individual mandate would be a “a jarring prospect” that would “usher in a significant expansion of congressional authority with no obvious principled limit.” The government’s argument for the mandate, Kavanaugh continued, would “ultimately extend as well to mandatory purchases of” many other products, a result that would have “extraordinary ramifications.”

Kavanaugh’s thorough and principled takedown of the mandate was indeed a roadmap for the Supreme Court—the Supreme Court dissenters, justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, who explained that the mandate violated the Constitution. I am very familiar with that opinion, because I served as Kennedy’s law clerk that term. I can tell you with certainty that the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional…

Kavanaugh was equally critical of the individual mandate under the weak Taxing Clause argument advanced by the government and catastrophically accepted by the Supreme Court. Kavanaugh explained that “no court to reach the merits has accepted the Government’s Taxing clause argument,” thereby showing his agreement with all the courts of appeals that correctly found the mandate unsustainable under that clause.

The Taxing Clause, he continued, “has not traditionally authorized a legal prohibition or mandate,” which Obamacare plainly contained. Contrary to Jacobs’ revisionist history, Kavanaugh’s Taxing Clause discussion is thus the opposite of a roadmap to upholding the statute under the Taxing Clause, as the Supreme Court ultimately did in its indefensible decision. Rather, Kavanaugh’s dismissal of the Taxing Clause argument is a roadmap to the conclusion reached by the dissenters—that the individual mandate is unconstitutional under the Taxing Clause.

To be sure, Kavanaugh suggested that a different statute without a mandate might pass muster under the Taxing Clause. But a statute without the mandate would not be Obamacare; it would be an entirely different law. Kavanaugh’s hypothetical discussion of a different statute without a mandate could not be a roadmap to upholding the statute with the mandate that was actually before the court.

A final point: Kavanaugh explained that waiting to resolve the challenge to Obamacare was not only required by law, but also the wise and judicially restrained course. There might never be a need to address the constitutionality of the mandate, he explained, because a future president (after the 2012 election) might choose not to enforce it.

That is apparently what has happened with Trump, after the 2016 election.

You can peruse both articles at your leisure and come to your own conclusions. I know which one convinced me, however—it was the Kavanaugh defense by Walker, who seems to have a much more persuasive argument and a much greater knowledge of the details and meaning of Kavanaugh’s lengthy dissent.

[NOTE: Part II can be found here. It’s on the difficulty of forecasting the future rulings of justices of the supposedly conservative persuasion, and the forces that sometimes cause them to turn more leftward over time.]

The new blog site is close to complete

The New Neo Posted on by

I know, I know; you’ve heard it before. But now it really is getting near the point at which the transfer to the new blog site will be made. After that, the neoneocon.com URL will have a redirect that will lead you automatically to the new site.

Many (not all) of the old posts and comments have now been transferred to the new site, and so if you go to thenewneo.com and look around, you’ll find them.

I’d like you to do that on as many of your devices as possible, and tell me what you think. Let me know if you have any suggestions for further improvement. You can comment at that blog, too, and see how that works. So far, the preview plugin doesn’t seem to work there, and I can’t find a good substitute, but the edit function is working nicely and that should probably be adequate.

When I got the idea to make the switch to a new URL and a new and more updated format, it seemed as though that would be a relatively simple task. I was quickly disabused of that notion when I was told I needed a web developer (not a web designer) to do it, and had a very difficult time finding a web developer to take on the job. Either they didn’t reply at all, or had various reasons they wouldn’t do it—too small a task, too big a task, uninteresting, beyond their skills, impossible…

I was almost about to give up on the idea and stick with the old blog site, although the old design of this blog has many drawbacks and makes it hard to add things or change them, or make it more responsive to cell phones and the like. I was complaining to a relative about the whole thing when she said that she has a relative who’s a web developer. Maybe he would do it. And so the relative route was the charm, although this kind young man has a full-time job and various other pressing responsibilities, and so it’s understandably taken a while to get going.

Anyway, that’s probably more than you wanted to know about the whole process and my travails. Just go to the new site and take a look around, and let me know what you think so far.

The Thai cave rescue: success!

The New Neo Posted on by

All of the boys, as well as their coach, have been rescued:

The 12 Thai soccer players and their coach who have been trapped in a cave in northern Thailand for more than two weeks have all been rescued. “We are not sure if this is a miracle, a science, or what. All the thirteen Wild Boars are now out of the cave,” the Thai Navy SEALs posted on their Facebook page…

Tuesday’s rescue mission succeeded in retrieving the remaining four boys and the coach. The last people to emerge from the cave were a doctor and three members of the Thai Navy SEALs at 10 pm Tuesday local time. The boys are in good overall health, according to Thailand’s Ministry of Public Health.

What an achievement.

“They are forced to do something that no kid has ever done before,” Ivan Karadzic, a diver on the rescue team, told the BBC. “They are diving in something considered an extremely hazardous environment in zero visibility. The only light that is in there is the torch light we bring ourselves.”

The first part of the 2.5-mile journey required wading and diving through the flooded passages, according to ABC Australia. Next came a 1-mile climb over slippery rock, with ropes for assistance…

“I cannot understand how cool these small kids are, you know?” Karadzic said. “Incredibly strong kids. Unbelievable almost.”

However, they had a little help on that:

This was very well-thought-out and well-executed. Bravo!

Tonight…

The New Neo Posted on by

[BUMPED UP–scroll down to see UPDATE]

…Trump will announce his SCOTUS pick.

Who will it be? There’s plenty of speculation, but I won’t be guessing.

You can try, though, in the comment thread.

UPDATE: It’s Brett Kavanaugh.

The Democrats have their talking points all prepared. His academic credentials are, as they say, impeccable, but I’m they’ll find plenty of reason to make him into the devil incarnate (the Catholic devil incarnate). By the way, Trump gave a nice speech of introduction, and emphasized that Kavanaugh clerked for Kennedy. Ha! Won’t this preserve the “balance” on which the Democrats are so intent?

Troubles in Brexitland

The New Neo Posted on by

Boris Johnson resigns:

Boris Johnson has quit as foreign secretary, claiming in his resignation letter that the UK was headed “for the status of a colony” if Theresa May’s soft Brexit plans were adopted.

The leading Brexiter said that he tried to support the line agreed at Chequers on Friday but while the “government now has a song to sing” he could not manage to support the plan agreed.

“The trouble is that I have practised the words over the weekend and find that they stick in the throat,” Johnson wrote. “Since I cannot in all conscience champion these proposals, I have sadly concluded that I must go.”

Johnson was the third minister to quit in 24 hours following the Chequers deal, although his resignation was announced by Downing Street at 3pm before he had a chance to complete his letter.

Johnson added:

The direction the negotiations had been taking have suggested that we would not really leave the EU and the conclusion and statements following the Chequers summit confirmed my fears.

Is May in trouble over the Brexit issue, much like Merkel in Germany over illegal immigration? Vox thinks that may be so:

The chaos engulfing May’s cabinet has raised questions about whether she could face a vote of no confidence from her own party. If she lost that vote, she would face a challenge for leadership of her party and could be forced to step down.

President Donald Trump will be visiting the UK on Thursday, and the subject of Brexit is bound to come up in talks with May. The world will be watching to see if he decides to try to make her life even harder in the likely event that he weighs in on the issue publicly.

Interesting timing.

The struggles over international control vs. autonomy, elitism vs. populism, open borders vs. stricter ones, are being played out in many countries simultaneously—the US, the UK, and Germany prominent among them. Lately the forces that have been gaining are the latter of each of those binary choices, and that development has proponents of the former of each of those binary choices rattled.

Some advice in dealing with sibling fighting, from an op-ed in the NY Times

The New Neo Posted on by

Bad and even dangerous advice, I might add, although neither uniformly bad nor uniformly dangerous. The author’s general suggestion is to let them be to work it out themselves, and/or to treat (or punish) them equally, which is actually quite common advice [emphasis mine]:

Siblings offer early, on-the-job training in how to work and live with other people. They also provide a crash course in how to manage intense emotions: envy, hatred, anger. In children of all ages, but especially younger children, the urge to compete for parental attention is innate. Among teenagers, sibling conflict helps them work out their need to differentiate from family and to set their own boundaries. Overall, research suggests the benefits of sibling disagreements include increased skills in understanding others, negotiating, persuading and problem solving…

When it comes to sibling conflicts, there are rarely innocents. For the most part, kids who are hurting one another or getting hurt, physically or emotionally, were already doing something you’ve told them not to do, and you won’t know the truth until they’re giving the toasts at one another’s weddings.

When all you know is that he said and then she said and then somebody did something and then there were tears, try this: Treat them equally. If there’s an injury that merits sympathy, gather everyone up. “Oh, that must really hurt where she hit you. Oh, you must have been so mad to do that. What can we do to make things better?”

Alternatively, if you’re just frustrated with the lot of them, take it out on everyone equally. “That’s it, playtime is over. You — empty the dishwasher. You — bring down the laundry.” If everyone involved feels terrible, you can feel secure that you’re on the right track.

All those things are good advice if—and only if—the fighting is the ordinary sort of sibling conflict in which relatively equally matched and pretty well-adjusted kids are squabbling. But are there really “rarely innocents”? There is another form of sibling fighting that is basically sibling abuse, and we don’t know its actual extent although it’s certainly not the majority of cases (we tend to think of sibling abuse as sexual abuse, which also exists, but I’m not referring to that).

It is often difficult for a parent to tell the difference between mere fighting of the ordinary type and abuse. Advice like that of the Times columnist, who is a parent of four—the sort of advice you’ll often see coming from “experts” as well—is dangerous if that advice doesn’t also include guidelines that help a parent tell when the squabbling is actually abuse in which a more powerful (either emotionally or physically or both) sibling habitually torments another sibling who is, in fact, innocent of any wrongdoing. The fact of the latter sibling’s being alive as a natural rival and irritant is usually enough to spark the abuse from the other sibling in these cases, rather than any behavior (much less any guilty behavior) on the part of the victim sibling.

That situation must not be allowed to continue; it is dangerous for both siblings, but particularly for the victim, and has the potential to leave deep and lifelong scars. “Letting them fight it out” and “treating them equally” is exactly the wrong thing to do in that situation; it tells the victimized child that there is no hope of rescue, and encourages him or her to blame him/herself for the cruel acts of others.

This topic was a particular interest of mine back when I was in graduate school, which was over twenty years ago. I did a lot of reading, wrote a long paper on the subject, and found that there was little to no discussion of the distinction at that time except for the paper I wrote. I’m pleased to see that a quick Googling just now has revealed a host of articles about the subject, so it seems that the state of knowledge and awareness has improved at least somewhat. But back then, I also designed a research project with a questionnaire aimed at uncovering and studying the difference. I never performed the research, although I probably would have, had I been going for a PhD.

In my quick look at the offerings now available online on the subject, I didn’t see anything resembling the research I had proposed. Most of the articles are fairly general. This seems to be one of the more informational ones. For example:

We need more research to find out exactly how and why sibling abuse happens. Experts think there are a number of possible risk factors:

–Parents are not around much at home
–Parents are not very involved in their children’s lives, or are emotionally distant
–Parents accept sibling rivalry and fights as part of family life, rather than working to minimize them
–Parents have not taught kids how to handle conflicts in a healthy way from early on
–Parents do not stop children when they are violent (they may assume it was an accident, part of a two-way fight, or normal horseplay)

In my own paper, I emphasized those first three points as key. The literature at the time stated as a given that children fight in order to gain parents’ attention and favoritism, and that is of course often true. But sibling abuse tends to have the characteristic of occurring most often outside the awareness of parents, so it certainly does not have the function of gaining parents’ attention. Its distinguishing characteristic is that its goal is to hurt (not necessarily physically, although sometimes physically) the victimized child, and the abusing child does not want to be caught and does not want the parents’ attention called to his/her actions. So naturally, the more the parents are away and the children are unsupervised or inadequately supervised, the more opportunity the abusive child has to harm the other child. And the more the two are blamed equally by parents for whatever fighting they do see, the worse it is for the victimized child, and the more blame he/she takes on in addition to the abuse.

The catch, of course, is that if much of the abuse takes place outside of the parents’ awareness, how would the parent ever know it’s happening? The articles I looked at recommend noticing behavioral signs such as nightmares, but those are relatively nonspecific. All I can suggest is to maintain awareness of the potential problem and to keep the lines of communication open, and also to be especially alert for it if there are marked differentials in size and age and personality between or among siblings. I would add “go for help to a family therapist,” but unfortunately many such therapists are not aware of the distinction and will give advice similar to that of the Times article, so be alert for that, too.

The illustration that accompanies the Times article is also typical of such “leave them alone” articles, because it shows equally matched siblings, which is so often not the case:

So, how common is such abuse? I’m not talking about single acts of sibling physical violence that are severe enough that they get reported to authorities as such (the only discussions I could find when I wrote my paper was of that sort of thing—for example, sibling murder). That link I gave earlier puts it this way:

Experts estimate that three children in 100 are dangerously violent toward a brother or sister. A 2005 study puts the number of assaults each year to children by a sibling at about 35 per 100 kids. The same study found the rate to be similar across income levels and racial and ethnic groups.

But “number of assaults” probably doesn’t measure what I’m interested in, either. It probably just is an estimate of hits, which is not the same thing as the incidence of physical and/or emotional abuse. I looked at one of the studies cited which is available online (see this), and it lumps in sibling assaults with assaults by children in general, so it’s not useful for determining the incidence of the phenomenon I’m talking about. I think it’s telling that, even among many researchers, the matter has been relatively neglected and/or minimized.

Interestingly enough, when I looked at the comments to the Times piece, nearly every single one I read was an objection to the article from a person who claimed to have been subject to sibling abuse that was unchecked and had serious negative repercussions for them. That certainly indicates a fairly high level of incidence, at least in the anecdotal sense.

The Thai cave rescue so far

The New Neo Posted on by

It’s been going better than I’d expected.

A total of eight boys have now been rescued. Four more to go, plus the soccer coach.

Their rescued teammates are being treated in quarantine at Chiang Rai Prachanukroh hospital. Former Chiang Rai governor and rescue mission commander Narongsak Osotthanakorn said Sunday night that doctors were monitoring the rescued boys for any illnesses they may have picked up in the cave and supervising efforts to build up their strength after they spent more than two weeks with little food and no natural light.

Kids are resilient. But they’re also small and most of them don’t have a lot of fat reserves to get them through a bout of starvation:

Danish cave diver Ivan Karadzic…told CNN Monday that the boys were wearing several wetsuits to “minimize heat loss,” which is a concern due to their “very skinny” bodies and the cold water.

I’m really glad that things are going well so far, but it took a huge international effort to accomplish it.

An interesting question is how they chose the order in which the children would be rescued. Did the kids have any vote? The coach? Or was it up to the rescuers? I read the other day that they chose the weakest ones to go first. I assume that was because they were most at risk the longer they stayed in the cave. However, wouldn’t they also be most at risk in an arduous journey out of the cave?

We don’t know which boys were rescued. But neither, apparently, do the parents:

Another family member told CNN that they hadn’t been told which boys had been pulled out, and who is still trapped in the cave.

Here are some more details on the help the divers provide:

The most dangerous part of the journey out of the labyrinth cave system is the first kilometer, during which they are required to squeeze through a narrow flooded channel.

Rescuers need to hold the boys’ oxygen tanks in front of them and swim pencil-like through submerged holes. Having completed this section, the boys are then handed over to separate, specialist rescue teams, who help assist them through the remainder of the cave, much of which they can wade through.

Danish diver Karadzic told CNN Monday that the children are attached to the divers with a thin line, a commonly used tool in low visibility situations to minimize risk.

An intense effort.

On Democrats’ loss of power

The New Neo Posted on by

[NOTE: This post was prompted by reading Victor Davis Hanson on the Democrats’ loss of power.]

The shock of the reversal the 2016 election represented to Democrats was and still is enormous. But the reversal wasn’t just because Democrats previously thought they were on the pinnacle and poised for near-permanent success, with Obama having permanently changed the direction of the country. The reversal was and still is shocking, truly shocking, because until 2016 the direction of the country had been almost relentlessly in the leftist direction for close to 90 years (since FDR), with only a few brief and incomplete moments of turning in the other direction.

Two of those moments consisted of Reagan and Bush, and only Reagan represented an actual conservative victory. Some of the time, moreover, even Reagan and Bush had to deal with a Democratic Congress. Bush was also preoccupied with the War on Terror, and he was otherwise quite moderate rather than conservative. As for the Gingrich Contract With America (another moment), Congress was Republican but the president was a Democrat, Bill Clinton, and Gingrich and company had to deal with that fact.

To the best of my knowledge, this is the first time since Coolidge that we have a conservative president (which, surprisingly, Trump is turning out to be, at least in the policy sense) and two houses controlled by the GOP. Reagan, a conservative, never had that luxury, because Democrats controlled the House for his entire presidency, and the Senate for a portion of it.

Trump’s Republican-controlled Congress could end in 2018, but for now Trump has both houses, another reason for Democratic angst. Plus, the Democrats really truly thought they’d get Congress back in 2018, perhaps both houses, and now they have some doubts about that (although it still could happen, of course).

When you’re used to a seemingly inexorable movement of politics in your favor, and the setbacks have been mostly small and temporary, it’s frightening to see a setback that could last longer. Or maybe, even, that the pattern has been broken and the movement in your direction may have ended when you least expected it to. And that’s another reason why the looming SCOTUS appointment has caused such hysteria on the part of Democrats—elections come and go, and things can change quickly with any election, but SCOTUS justices tend to last a long long time.

Hero worship and politics: persons vs. principles

The New Neo Posted on by

After writing about NeverTrumper Max Boot’s motives yesterday, I decided I have more to say.

And it’s not just about Boot.

On that thread yesterday, commenter “Ann” offered a quote from a piece Boot wrote back in May of 2016. I don’t recall having seen the essay at the time it was written, but it’s an illuminating look at what Boot was thinking at the time, and why.

My guess is that his reasons were similar to those of a lot of his fellow NeverTrumpers. So let’s take a look:

My allegiance to the GOP was cemented during the 1980s, when I was in high school and college and Ronald Reagan was in the White House. For me, Reagan was what John F. Kennedy had been to an earlier generation: an inspirational figure who shaped my worldview. Reagan had his faults, like JFK, but he was optimistic and gentlemanly. He was pro-free trade and pro-immigration. He believed in limited government at home and American leadership abroad.

That’s what I believed in too — and that’s what I thought the Republican Party stood for. That’s why, despite my disagreements with social conservatives, I worked as a foreign policy advisor to John McCain in 2008, Mitt Romney in 2012 and Marco Rubio this year. All of those candidates, different as they were, recognizably represented Reagan Republicanism.

I don’t know about that; Reagan was certainly more conservative than McCain or Romney, and somewhat more conservative than Rubio, on most issues. I’m not even sure that I’d call McCain “gentlemanly” at all, either. But Romney was nothing if not gentlemanly, and all three were 1000% more “gentlemanly” than Trump is.

Just about everyone in the GOP is more “gentlemanly” than Trump is.

It was that word gentlemanly that practically leapt out at me when I saw it in Boot’s essay. I think the word is very telling—that, and his idea of Reagan as being an “inspirational figure.” Those two points made me suddenly see something even more clearly than before.

There’s a saying that you can’t reason someone out of a position that they weren’t reasoned into in the first place. I think what’s going on with Boot (and perhaps most other NeverTrumpers) is that he was initially inspired to become a Republican by hero worship of an inspirational figure and a gentleman, not by reason. The decision was emotional and the reasons were embedded in perception of the admirable personality of the emulated person.

Of course, Democrats are hardly gentlemanly. But Boot doesn’t really talk about that; apparently he doesn’t expect them to be, so it’s okay.

One conservative principle that Boot does mention being in favor of is “limited government,” but he is opposed to “social conservation” (although he doesn’t define that, and it can mean different things to different people). Boot is for the principles of “free trade” and “immigration,” and seems to think Reagan was as well.

So, if Boot and his fellow NeverTrumpers are looking for a gentleman for free trade and immigration—and if Boot defines the latter as including illegal immigration—then of course he will detest Trump with a white-hot passion.

But when I did a bit of research just now on Reagan’s attitude towards free trade, I mostly found short articles saying absolutely, he was for it. But then I found this, which was extremely interesting. It refers to a speech that Donald Trump made in July of 2016:

Part of his approach as president, [Trump] said, would be to “use every lawful presidential power” to remedy trade disputes.

“President Reagan deployed similar trade measures when motorcycle and semiconductor imports threatened U.S. industry,” Trump said. “I remember. His tariff on Japanese motorcycles was 45 percent, and his tariff to shield America’s semiconductor industry was 100 percent, and that had a big impact, folks. A big impact.”

Reagan did impose those penalties on overseas motorcycle and semiconductor producers, though there is some question about whether the motorcycle and semiconductor tariffs were effective. (Trump’s campaign didn’t respond to an inquiry, but his prepared remarks included footnotes.)

However, Reagan’s record includes both free-trade and protectionist stands — a nuanced profile that suggests that Trump’s portrayal was partially accurate, but somewhat incomplete.

In a 1985 speech to business leaders, Reagan said that “our trade policy rests firmly on the foundation of free and open markets — free trade. I, like you, recognize the inescapable conclusion that all of history has taught: The freer the flow of world trade, the stronger the tides for human progress and peace among nations.”

However, read in its entirety, Reagan’s speech articulates a distinct sense of balance about the merits and drawbacks of free trade.

“I believe that if trade is not fair for all, then trade is free in name only,” he said. “I will not stand by and watch American businesses fail because of unfair trading practices abroad. I will not stand by and watch American workers lose their jobs because other nations do not play by the rules.”

While Reagan said he would reject proposals by some in Congress and the private sector that were “purely protectionist in nature,” and while he reiterated that “our commitment to free trade is undiminished,” he added this: “Let no one mistake our resolve to oppose any and all unfair trading practices. It is wrong for the American worker and American businessman to continue to bear the burden imposed by those who abuse the world trading system.”

True to his words, Reagan’s record in office was equally mixed.

That’s certainly interesting. Trump apparently did his homework on Reagan.

In Boot’s 2016 piece he adds the following, after saying that Hillary Clinton would be a lot better than Trump:

My hope is that [Trump] will lose by a landslide, and the Republican Party will come to its senses, rejecting both his ugly, nativist populism and the extreme, holier-than-thou conservatism represented by Ted Cruz.

Another telling remark, because Boot displays almost as great an antipathy to Ted Cruz as to Trump, although for entirely differently reasons: Cruz is a conservative, but a “holier-than-thou” one. Is Boot objecting to the fact that Cruz is religious? Hard to say. But whatever makes Boot hate the conservative Cruz, it seems to again have much more to do with Cruz’s personality than with his policies.

I think that someone like Boot was initially attracted, not to conservatism’s principles, but to particular conservative figures he admired as people and as gentlemen who played by a rulebook that Boot has in his head. The rest was secondary to Boot, very secondary. It’s an odd approach to politics, by my way of thinking. I care far less about personalities than principles, and always have, whether I was a liberal or a conservative. In fact, I’ve not found any political figures in my lifetime “inspiring” with the sole exception of Winston Churchill, and by the time I heard of him he was on his last legs.

But apparently there are plenty of people on both sides who respond more to personalities than anything else. That was certainly apparent during the Obama era (remember David Brooks, who seems to have decided on the basis of Obama’s prefectly creased pantleg that he would become president). And it’s been extremely apparent with Trump’s candidacy and presidency. I’m always a bit surprised to discover pundits like Boot among that group, but I shouldn’t be at all surprised. Not at all. Emotion guides politics for a lot of people.

Max Boot joins George Will in saying that Democrats must win in order to purify the GOP, or something like that

The New Neo Posted on by

And in no uncertain terms:

Personally, I’ve thrown up my hands in despair at the debased state of the GOP. I don’t want to be identified with the party of the child-snatchers. ..

…a vote for the GOP in November is also a vote for egregious obstruction of justice, rampant conflicts of interest, the demonization of minorities, the debasement of political discourse, the alienation of America’s allies, the end of free trade and the appeasement of dictators.

That is why I join Will and other principled conservatives, both current and former Republicans, in rooting for a Democratic takeover of both houses in November. Like postwar Germany and Japan, the Republican Party must be destroyed before it can be rebuilt.

The GOP must be de-Nazified and de-Axisfied, get it? Because of course what’s happening now in the US with Republicans is exactly like that, and the Democrats are kind of like the Allies.

I bow to no one in my discussion of Trump’s flaws, but I recognize his strengths—particularly since taking office. I have seen no obstruction of justice, egregious or otherwise. Rampant conflicts of interest are part and parcel of Democrats, more so even than Republicans, and certainly part of politics in general. Republicans are not demonizing minorities—if Boot were to pay attention to what is actually being said for the most part rather than what his MSM colleagues say is being said. As for allies being alienated—well, it depends on the allies (Eastern Europe seems rather happy). And allies would disagree with the policies of any robust GOP, even if Will and Boot designed that policy. I’m not too happy with the trade situation, but I’m willing to see what happens, and I certainly don’t put “free trade” on a pedestal either. As for “appeasement of dictators”—that’s what I saw with Obama, not Trump. In fact, the Democrats Boot wishes to put in power don’t just appease dictators, they revere and wish to emulate them.

What is it with these guys, Boot and Will and their ilk? Their revulsion to Trump is so great that they have joined forces with people they have worked against their entire lives—Democrats, liberals, and particularly the left, which, if Boot has been paying any attention lately, has taken over the Democratic Party.

I understand Trump-revulsion—particularly in people who consider themselves to be elite, who are prone to virtue-signaling, who work in an otherwise-liberal environment, who care a lot about style and being intellectuals, and who are susceptible to emotional appeals about children in “cages” (temporarily, and also under Obama, by the way). But I fail to understand this idea that empowering the Democrats is a great way to deal with it.

I think people like Boot and Will feel trapped between two awful alternatives. It’s what’s called an avoidance-avoidance conflict in the psych biz. Their Trump-avoidant gradient seems to be so steep that they cannot countenance anything to do with him, and they see no other alternative than supporting Democrats.

Boot and Will must turn on their former allies who do not share their revulsion. If Trump is evil, therefore anyone who supports him is evil, therefore those who oppose him (Democrats) must be friends: the enemy of my enemy is my friend.

[NOTE: Here’s my previous piece on George Will and his similar declarations.]

[NOTE II: And I wrote more on the topic of Boot and other Never Trumpers today, July 7: Hero worship and politics, persons vs. principles.]