//  7/25/17  //  Commentary

Monday morning at 6:12 am Donald Trump sent the following tweet about Rep. Adam Schiff (D-CA), the ranking minority member of the House Permanent Select Committee on Intelligence:  “Sleazy Adam Schiff, the totally biased Congressman looking into ‘Russia,’ spends all of his time on television pushing the Dem loss excuse!”  This was 31 minutes after Trump sent a tweet asking why “the Committees and investigators, and of course our beleaguered A.G.” weren’t “looking into Crooked Hillarys [sic] crimes & Russia relations?”  It was six minutes before Trump tweeted that “Republicans have a last chance to do the right thing on Repeal & Replace after years of talking and campaigning on it.”  And it was shortly before Trump’s son-in-law, Jared Kushner, met behind closed doors with investigators for the Senate Intelligence Committee to answer questions about his dealings with Russian officials during the 2016 presidential campaign.

Trump poses so many dire threats on a daily basis—the threat of a banana-republic style political prosecution of his defeated opponent, the threat to strip millions of Americans of health care just so that he can claim a political victory—that it is easy to overlook his hour-by-hour, minute-by-minute assaults on basic norms of democratic civility.  So let’s focus for a moment on the tweet about Schiff.

Full disclosure:  I worked with Schiff in the late 1980s; we were federal prosecutors together in Los Angeles.  I admired him then, and I admire him still.  But this post really isn’t about Schiff, who can defend himself.   (He responded to Trump’s tweet with characteristic restraint:  “With respect Mr. President, the problem is how often you watch TV, and that your comments and actions are beneath the dignity of the office.”)

This is about something that has become so commonplace we’re in danger of becoming inured to it:  the way the President slings mud without the slightest regard not only for the truth but even for the appearance of caring about the truth.  He’s upset by something he sees a congressman say on television.  So he tells the country the congressman is “sleazy,” “totally biased,” and “spends all his time on television.”

Schiff has served in Congress for sixteen years.  Before that he was a California State Senator for four years.  So twenty years of legislative service, in which time there has been, to my knowledge, not the slightest suggestion of any ethical impropriety.  “Totally biased”?  He’s respected across the aisle and works across the aisle.  There can’t be a member of the House who has labored harder over the past decade a half to build bipartisan consensus on foreign policy.  “Spends all his time on television”?  Please.

Trump may not know any of this.  But he knows—and knew Monday morning—that he didn’t have any grounds to attack Schiff’s character.  He doesn’t care. He didn’t like what Schiff said, so Schiff is “sleazy” and “totally biased.”  We’ve seen this again and again. Anyone who opposes Trump—Republican, Democrat, judge, reporter, career prosecutor—is “crooked” or “sleazy.”  To call Trump a liar isn’t adequate.  He has no sense of shame.  It’s not clear he understands that honesty and integrity are real things, that there are people who actually try to live by those values.  What he respects—and he’s been perfectly clear about this—is “strength.”

This isn’t just repulsive.  It’s Orwellian, in the strongest sense we’ve ever seen in American politics.  So it’s important not to get accustomed to Trump’s reflexive, unabashed smears, not to mistake them for the ordinary rough-and-tumble of democratic politics.

Democracy depends not just on institutions but on engrained habits and practices.  These include the habit of good faith engagement and the practice of distinguishing “honest dissent” from “disloyal subversion.”  (The language is President Eisenhower’s.)  It’s worth remembering what Judge Learned Hand said in May 1944 (as Eisenhower was finalizing preparations for D-Day) about “the spirit of liberty”—the spirit that formed the “common purpose” and “common devotion” of Americans, the core conviction for which Americans were fighting in Europe and in the Pacific.  It wasn’t a belief in “ruthless … unbridled will,” Hand said.  Rather, he explained, the spirit of liberty was “the spirit which is not too sure that it is right … the spirit which seeks to understand the minds of other men and women … the spirit which weighs their interest alongside its own without bias.”  It was a spirit, Hand said, that cannot exist “except as the conscience and courage of Americans create it.”

Everyone has biases.  Learned Hand knew he was describing an ideal that had never been fully attained.  But you can’t even approximate impartiality—or honesty, or integrity—if you don’t believe in it.  Not the least of the challenges Trump presents to all of us is to retain our faith in the values he disdains. 


A Tainting of Judicial Independence

10/8/18  //  In-Depth Analysis

Kavanaugh's potential perjury means that his seat on the Court may depend on continuing Republican control in Congress. This is plainly inconsistent with any account of judicial independence.

Tom Ginsburg

University of Chicago Law School

Aziz Huq

University of Chicago Law School

The 'All of the Above' Approach to Justice Kavanaugh

10/7/18  //  In-Depth Analysis

Do progressives give up on the Court? Declare war on it? Pretend nothing has changed? Each of us will have to decide for ourselves. There is no 'right way' to respond to our new reality.

Michael C. Dorf

Cornell Law School

The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court

10/7/18  //  In-Depth Analysis

By the time the Supreme Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control, even though Democrats have won a majority or plurality of the popular vote in seven of the twelve elections in that period.

Marty Lederman

Georgetown Law