Progressives conceive of themselves as a caste apart, a special and specialized group of enlightened men and women whose job it is to organize other people’s lives for them, a necessity because those people are too dumb to do it for themselves. And special people must enjoy special exemptions: Bernie Sanders can rail against the rich from his lakeside dacha, and Beto O’Rourke can lambast school-choice programs even though he himself ditched the public schools for the tony Woodberry Forrest boarding school, where tuition currently runs about $56,000 a year — a third more than the median household income in his native El Paso.
And, of course, Senator Kamala Harris of California can get away with the grossest hypocrisy.
During Brett Kavanaugh’s confirmation hearings, she demanded to know whether the judge thought the president could legally politicize the Justice Department, for example by prosecuting his political enemies while going easy on his friends. Senator Harris would know more than a little about that: She wasted a great deal of time and a fair sum of Californians’ tax dollars illegally using her position as attorney general of California to attempt to bully nonprofits into giving up their donors lists. It was a transparent effort to target them for harassment and retaliation. That little jihad ultimately was ruled an unconstitutional violation of the First Amendment by the federal courts. Harris and her opposite number in New York State, Eric Schneiderman, did nothing but misuse their offices to harass their political rivals. (Well, in fairness, Schneiderman did take some time to beat women, if The New Yorker is to be believed, and resigned his office after three women accused him of abuse.) She misused her job like that was her job.
You know how this works: Liars think everybody is lying, cheaters think everybody else is a cheat, and self-serving political hacks who misuse their offices think that that’s just how the game is played, that everybody does it.
Kavanaugh, to his credit, declined to answer what he characterized as “political questions.” The term “political question” doesn’t mean a dispute over public policy or political priorities. What it means is a question with a political solution rather than a legal one. (My colleague Andrew C. McCarthy touches on this theme often.) For example, there isn’t any statutory guidance on impeaching a president, and “high crimes and misdemeanors” is a term as flexible as Bill Clinton’s conscience. It is a political question, meaning that the House of Representatives decides what is impeachable, and the Senate decides whether to convict a president and, if warranted, remove him from office.
What would it mean to “politicize” the Justice Department? We’ve seen politicized federal departments before, for example the IRS during the Obama administration, when it improperly targeted groups perceived as hostile to Barack Obama for investigation and harassment. That was clearly improper.
But consider another case, one involving the Justice Department: After 9/11, the federal government began to prioritize cases involving international terrorism. Obviously, there were political reasons for doing that, and it was in President Bush’s self-interest to make al-Qaeda and its confederates his top priority. Would it have been possible for him to go too far in doing that? Of course. He could, for example, have seen to it that new investigations into white-collar crime were suspended and those resources redirected to counterterrorism. But there isn’t any real legal guidance on just how far a president can go in reshaping an agency’s priorities to suit his own agenda — his policy agenda and his political agenda, which are not entirely distinct things. The process for resolving disputes over those kinds of questions is the election we have every four years — or, in an extreme case, impeachment.
These are not abstract questions. I have for some time been banging my spoon on the table about the fact that federal prosecutors in Chicago — as a matter of policy — refused to prosecute straw buyers of firearms, who violate federal law in order to put guns into the hands of criminals who can’t legally obtain them. Unless it was part of a larger arms-trafficking operation — the sort of case that might help a young prosecutor make his name — the feds wouldn’t touch those cases with a ten-foot pole. In Chicago, this was. Federal prosecutors can prioritize their cases however they choose — and presidents can fire them. And voters can fire presidents. That’s how that works.
Bearing in mind the obvious limits of such generalities, one of the differences between progressives and conservatives is that progressives are outcome-oriented on questions of justice, and conservatives are process-oriented. Another way of saying this is that progressives don’t care how they get their way so long as they get their way. So, for example, many progressive-leaning people would have a hard time giving a fair hearing to the argument that Brown v. Board of Education was a bad legal opinion, even if was put forward to a worthy end. It is rare to meet a progressive who appreciates (or will publicly admit) what an indefensible decision Roe was as a legal question, irrespective of whether one supports or opposes abortion rights. From the progressive point of view, if the outcome was right, then the process doesn’t matter. Conservatives, at least those with a sense of history, know better.
What Democrats want on the Supreme Court isn’t judges who will apply the law as it is written: They want super-legislators who will give them what they want: abortion rights, gay marriage, political censorship, etc. And they assume that conservatives are simply the inverted version of themselves: that all Republicans really care about is getting judges on the court who will give them what they want, irrespective of what the Constitution or the statutes actually say. For them, the fact that Antonin Scalia often frustrated Republicans on issues such as flag-burning because he was following the First Amendment rather than a policy agenda is a kind of exotic outlier, something that doesn’t bear thinking about too much. They want Supreme Court justices who will pledge their allegiance to the progressive policy agenda. Barack Obama said as much, saying that he wanted judges to apply “empathy,” which has not a thing to do with the law.
Because they think of themselves as a special enlightened caste, progressives care almost nothing about process. Process is for the little people. Elizabeth Warren wouldn’t care if a Supreme Court opinion read “Ooo eee, ooo ah ah, ting, tang, walla walla bing bang” so long as it provided the result she wanted. But, of course, process matters. It is a bulwark against both anarchy and tyranny.
The hysteria directed at Kavanaugh is the most persuasive available example of why Kavanaugh is needed on the Supreme Court, and more like him.
Making that happen is a political question, too.