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It looks as if the next presidential election—less than a year away—will feature a rerun between two road-tested candidates: President Joe Biden and former president Donald Trump, who at present seem, with all their evident flaws, to push other candidates aside. Not only does Trump lead in the run-up to the Republican primary, but, contrary to many expectations, he seems to have edged into the lead against Biden for the general election.
It is no surprise that columns in the New York Times seek to bolster Democratic fortunes. A recent heartfelt op-ed in the Times by three veteran Trump opponents—George Conway, J. Michael Luttig, and Barbara Comstock—seeks to bolster Democratic fortunes. They insist that re-electing the former president could undermine the Constitution, the rule of law, the independence of the courts, and much else besides. They offer no specifics to document these claims, and maintain a conspicuous silence about any activities of the Biden administration that arguably flout these very principles, such as its overgenerous use of executive orders on such matters as student loan forgiveness and the use of fossil fuels, which undermine the separation of powers; as well as the attacks on conservative Supreme Court justices, coupled with dangerous suggestions by Senator Sheldon Whitehouse of Rhode Island, who has denounced a Code of Conduct recently released by the Supreme Court. Whitehouse proposes: “My ethics bill would create a transparent process for complaints and allow a panel of chief judges from the lower courts to investigate and make recommendations based on those complaints.” But, as the Wall Street Journal noted editorially, this move would inspire an endless array of public complaints, many generated by Whitehouse’s loyalists, to be investigated under uncertain procedures that clearly amount to the politicization of the judiciary and an assault on the independence of the Supreme Court. Just how would those justices operate, knowing that their legal decisions are subject to the review by the judges whose work they are supposed to review? And to whom are these recommendations made, and for what purpose?
The most bizarre claim in the Times op-ed is to point an accusing finger at the Federalist Society (with whom I have worked closely since its inception over forty years ago), as derelict in failing to control the asserted dangerous activities of any planned Trump administration. The charge wholly misunderstands the role that the society has played as an incubator of conservative and libertarian lawyers—who, for all their differences on such key long-standing issues as judicial review and the protection of speech and property rights, will never be mistaken for the progressive rivals.