So much good tenaciously done. So much good gratuitously undone.
So much good tenaciously done. So much good gratuitously undone.
I n late October, the Senate approved the appointment of a remarkable third Supreme Court justice nominated in a single presidential term: Amy Coney Barrett, a solid originalist on the model of the legendary Antonin Scalia, much like the two other recent appointees, Justices Neil Gorsuch and Brett Kavanaugh. And a bonus: In mid-December, the Senate consented to the nomination of Thomas Kirsch to replace Justice Barrett on the Seventh Circuit appeals court.
These confirmations were the capstone of the federal judiciary’s decidedly conservative remaking, a boon for civil and economic liberty that will long outlive the presidency responsible: that of Donald J. Trump, not — mirabile dictu, even four years later — of Hillary Clinton.
There is a general misimpression, thanks to left-wing media, that conservative jurists decree conservative policy just as liberal jurists implement the progressive wish list. Not true. To the contrary, conservative jurists emphasize that it is not the judiciary’s job — in fact, it is a distortion of the judicial function — to make policy. The philosophy of judges assembly-line appointed by President Trump — under the masterful stewardship of Senate majority leader Mitch McConnell and White House counsel Don McGahn, with influential assistance from the Federalist Society and the Heritage Foundation — maintains that policy-making is for Congress. Courts promote democracy, not undermine it, with the modest but essential anti-majoritarian caveat that individual liberty, as the Constitution prescribes it — i.e., not as progressives would imagine it — must be preserved. A left-wing judiciary imposes its will; a right-wing judiciary leaves a wide berth for progressive policy-making, but it must be enacted the old-fashioned way: through public persuasion and with political accountability. That kind of democracy restrains the Left’s ambitions.
The reshaping of the federal judiciary thus highlights the two greatest achievements of the Trump presidency. First, the remade judiciary, with conservative lawyers mostly in their 40s and 50s slotted into life-tenure positions, will shape the law for a generation to come. Second, Trump’s improbable 2016 triumph prevented Hillary Clinton from becoming president. It would have been President Clinton appointing justices to the Supreme Court, as well as to the all-important circuit courts of appeal and lower federal district courts — which together decide many times the number of cases and issues that the high court addresses, and to which Trump named a total of 228 judges. It would have been Hillary Clinton running American foreign policy (recall the preview we got during her unsavory tenure as President Obama’s secretary of state — from the “Russian Reset” through the Benghazi massacre). It would have been President Clinton continuing Obama policies of American decline — the listless economic recovery, the empowerment of America’s enemies, the regulatory stifling of business, the hobbling of the energy sector. That Mrs. Clinton is innately mendacious and corrupt does not negate President Trump’s own deep character flaws; but those traits, coupled with her policy menu, would have made for a ruinous four years. The United States dodged a bullet by avoiding it.
We mustn’t overstate the case — and not just because, in Burke’s elegantly simple wisdom, “The power of bad men is no indifferent thing.” Even concerning the judiciary, Trump’s achievement is not quite as advertised. Many of the judges he replaced were conservatives appointed during the presidencies of Reagan and the two Bushes. They took senior status or retired to make way for conservative replacements. The Supreme Court seems locked into a reliable originalist majority for the next several years, and Trump managed to get an impressive number of circuit judges through (his 54 equals what Obama managed in twice the time); but to truly remake the judiciary, Trump would need to have been reelected. That would have led to much higher appointment numbers (such as Obama’s 329 judges, Bush 43’s 327, and Bill Clinton’s 378), with many more replacements of liberal judges.
Moreover, Trump did not merely lose the 2020 election, mostly due to character failings that, in conjunction with a COVID-ravaged economy, overshadowed his achievements in the minds of most voters. His demagogic campaign to brand the election as “stolen” from under the nose of state election officials, particularly Georgia Republicans, sabotaged GOP prospects in the Peach State. Thus were two eminently winnable seats lost in the run-off earlier this month. That handed control of the Senate to Democrats. Had Republicans held even one seat, the Biden administration would have had to play ball with McConnell to get its judicial nominees through the confirmation process, and would have had to propose more moderates. Now Biden and new majority leader Chuck Schumer (D., N.Y.) will duplicate the Trump-McConnell feat, except it will be young progressive jurists rolling off the confirmation conveyor belt. Trump will have no one but himself to blame.
That is the tragedy of the Trump presidency. So much good tenaciously done. So much good gratuitously undone.
The January 6 riot at the Capitol, instigated in large part by Trump’s weekslong refusal to accept the results of the election, is the nadir of this recklessness. It will blight the solid accomplishments of the past four years and understandably stain his legacy for all time.
Foreign-Policy Achievements
It should have been possible to say without equivocation that the president left American national security in markedly better shape than he found it. It is markedly better, but the instability of the last two months, caused exclusively by the president, has left the nation more vulnerable as adversaries are enticed to poke and prod.
The Obama administration’s Iran nuclear deal (the Joint Comprehensive Plan of Action, or JCPOA) was a catastrophe. It put hundreds of billions of dollars, mainly in the form of sanctions relief and unfrozen assets, at the disposal of the world’s leading sponsor of anti-American jihadist terrorism. Worse, Obama reneged on vows to shut down Iran’s nuclear program and ensure that Iran’s promised concessions were verifiable. Because the prohibitions on the regime’s development activities sunset, the deal set Iran on a glide-path to becoming a nuclear power (thus encouraging proliferation in the world’s most dangerous neighborhood). There were no benchmarks tying Iran’s benefits to eliminating its terrorism promotion, even as the mullahs continued to support jihadist attacks and plots against American troops and targets. There were no meaningful controls on its ballistic-missile testing.
Trump not only pulled the United States out of the JCPOA; he imposed crushing sanctions on the regime and many of its third-party supporters that have deprived Iran of defense and energy assets, denied it access to capital, and weakened its capacity to support Hezbollah, the Taliban, Iraqi jihadist cells, and other terrorists. Audaciously, Trump approved the strike that killed major general Qasem Soleimani, the regime’s most effective military commander, second in power only to the grand ayatollah.
In conjunction with this, Trump reinvigorated American alliances with Sunni Islamic allies, particularly Saudi Arabia and the other Gulf states, that had been strained by Obama’s futile courtship of the mullahs. He also fortified frayed U.S. ties to Israel, whose conservative government Obama had consistently undermined. The marginalization of Iran, coupled with such confidence-boosting measures as moving the U.S. embassy in Israel from Tel Aviv to Jerusalem — a step long promised by American presidents but left unfulfilled due to overwrought protest by the foreign-policy establishment — led to a historically significant outbreak of peace in the Middle East. In the resultant Abraham Accords, Trump brokered formal peace pacts between Israel and several Muslim-majority countries — initially the United Arab Emirates and Bahrain, followed by Morocco and Sudan. (Nearly 30 years ago, when I was prosecuting terrorism cases and Khartoum was harboring al-Qaeda, the suggestion that Sudan would make peace with the Jewish state would have been inconceivable.) Trump even made inroads toward more open cooperation between Jerusalem and Riyadh, building on their years of quiet collaboration against Tehran — not a formal peace agreement, but an effective working arrangement.
If a Democratic president had pulled this off, they’d have renamed the Nobel Peace Prize in his honor.
Trump’s prioritizing of stronger alliances with Sunni regimes came in tandem with stepped-up operations against Sunni terror networks, particularly the Islamic State. Its physical ISIS “caliphate” in Syria and Iraq, which had grown to a landmass larger than Britain in the Obama years, was dismantled. This does not mean it has been defeated, as Trump occasionally suggested — in many ways, it may be more effective as a stealthy jihadist organization than as a would-be sovereign. But liberation of territory is a real achievement.
The president resisted further U.S. troop commitments, insisting that what he vapidly labels “forever wars” must be ended and troops be brought home — often heedless of conditions on the ground. (In point of fact, the U.S. has not been on a war footing in years, and its commitment of forces in Middle East hot spots is minimal — probably perilously so for purposes of American counterterrorism needs.) Some of the rush to draw down forces has yielded Obama-style pie-in-the-sky security delusions — e.g., peace negotiations with the Taliban on the fantasy that they have abandoned al-Qaeda and will coexist peacefully with the rickety Afghan government the U.S. has propped up for 20 years. On the other hand, Trump approved the mission that killed the monstrous ISIS founder Abu Bakr al-Baghdadi. Such operations are consistent with the path forward long sought by the U.S.: minimal U.S. presence, quick-strike anti-terror capacity, and capable American allies carrying the load. Alas, fitful steps in the right direction leave us some distance from a settled, fruitful strategy.
Trump’s real concentration was on great-power international politics. The results were mixed, but a genuine improvement over Obama’s appeasement. The president’s skepticism about multilateral arrangements that cede some American sovereignty in exchange for benefits that, if not delusional, tend to outlive their usefulness, led on the plus side to agreements by America’s NATO partners to pay more heed to their defense commitments; and to a renunciation of Obama’s sign-on to the Paris Climate Accord — a preening farce that would accept economic ruin in exchange for unenforceable promises of carbon-emissions reductions by the likes of China and India (growing economies that, unlike ours, will increase emissions in the coming years).
By contrast, Trump’s populist rants against the North American Free Trade Agreement (NAFTA) were always hyperbole, and his replacement, the U.S.-Mexico-Canada Agreement (USMCA) is, at best, a marginal improvement that retains most of NAFTA. Trump’s rejection of the Trans-Pacific Partnership (TPP) has generally been panned as a missed opportunity to isolate China (a critique that is well-taken but, having been a TPP naysayer, I’m in no position to criticize). The merits of Trump’s announced pullout from the World Health Organization are not worth assessing since it was not consummated and will surely be reversed by the Biden administration — as will such worthy Trump moves as withdrawal from the U.N.’s Human Rights Council and its Education, Scientific, and Cultural Organization (UNESCO), both bastions of anti-Israeli bias.
The Trump administration’s most consequential foreign-policy advancement has been to introduce national-security realism into Sino-American relations, approaching China as a rival with hostile, hegemonic intentions in the Far East and beyond. Some of this has proceeded in a ham-fisted way. Ultimately, the president’s ill-considered trade war inflicted more economic damage on U.S. farmers and merchants than on Beijing. Furthermore, on the COVID-19 pandemic, Trump careened from first praising President Xi Jinping for his supposed good-faith cooperation to then seething that the Communist regime was the root of all his listing administration’s woes.
Nevertheless, under the direction of Secretary of State Mike Pompeo, the administration has built an international coalition to battle Chinese espionage and other predatory behavior, and energized the “Quad” group — a loose defense coalition with Japan, Australia, and India — to check Chinese provocations. The administration has combined tough sanctions with increasingly vocal condemnations of Beijing’s aggressions against Hong Kong and Taiwan and its enslavement of its Muslim population in Xinjiang province. The Trump Justice Department, too, noticeably ramped up prosecutions of Chinese espionage, and its charging documents do not pull punches about the regime’s malign intentions. Biden’s history suggests that he will be an easier mark for Xi, but the field has been altered. It will not be easy to revert to Washington’s default of appeasing this ambitious rival.
For all the media-Democrat energy expended on the “Russia collusion” farce, it is underappreciated that Trump has been significantly tougher on Moscow than Obama ever was. Even amid the Ukraine-impeachment kerfuffle, which played out like Russia collusion 2.0, Democrats were forced to concede that the president had provided Kyiv with lethal aid for its border war with Moscow — the aid that Obama had withheld. Trump beefed up American military spending, which is what most vexes the Kremlin. He piled tough sanctions on Russia, did not shrink from a firefight when Russian mercenaries became provocative in Syria, and pressured the EU — particularly Germany — to resist becoming more dependent on Russian energy and to raise its defense spending to make NATO a more capable counter to Russian aggression.
All that said, Trump’s rhetorical solicitude toward Putin still grates. Only some of this is explained by the president’s irrational belief that acknowledging the strongman’s treachery — particularly, the cyber-provocations that continue apace — would validate the “collusion” farce and implicitly delegitimize his presidency. Trump has a thing — an unsavory thing — for monstrous despots: Putin, Xi, Turkey’s Recep Erdogan, and North Korea’s Kim Jong-un (the purportedly lovable thug formerly known as “Rocket Man”). He was even convinced, against all logic and history, that he could bond with Ayatollah Khamenei if only Iran’s “supreme leader” would come to the table. The president would claim, speciously, that his unique brand of personal diplomacy kept the U.S. out of war. The national-security Right would counter that Trump gave legitimacy to anti-American dictators with no obvious benefit to American interests . . . but would also acknowledge that Trump kept us out of war by doing what actually does work: strengthening our armed forces.
Personnel Was Policy
The president’s self-destructive efforts to intrude on law-enforcement investigations, including those implicating himself and his political rivals, were fortunately warded off by his well-chosen appointees, particularly Attorney General Bill Barr. Under Barr, the Justice Department strove to restore the principle of a single standard of justice applied to all, and to end the destructive exploitation of investigative processes as a political weapon. DOJ ensured transparency in the roll-out of the Mueller Report — which detailed serial instances of unpresidential behavior but also put the lie to baseless allegations of treason. As the pandemic gripped the nation concurrently with a spate of sometimes-lethal rioting in the aftermath of controversial police encounters with African Americans (particularly, George Floyd’s death, charged as murder, in the custody of Minneapolis police), Barr effectively mobilized the department to address the underperformance and overkill of state and local governments: dispatching federal law-enforcement agents to supplement the response to urban spikes in violent crime, and the Civil Rights Division to champion religious and economic liberty in the courts on behalf of Americans beset by iniquitous lockdown restrictions.
At the Education Department, Secretary Betsy DeVos made her mark much like Barr — steadfastly pursuing prudent, conservative policy against the constant thrum of media-Democrat carping. She was a tireless champion of access to quality learning and reversed the Obama administration’s outrageous evisceration of due process on the campus — making her Public Enemy No. 1 for the teachers’ unions and the Woke Left, a distinction she bears as a badge of honor.
Personnel is policy, of course. Because we are in an era of toxic partisanship, and because President Trump’s deal-making skill is mostly a legend in his own mind, the administration did not succeed in etching its policy preferences into legislation, as Obama did with Obamacare and Dodd-Frank. Much of the good done by his stellar cabinet picks will rapidly be undone by the incoming progressive Democratic administration. A prime example: Immigration enforcement will be rolled back. Indeed, the Biden administration plan to fly out of the box with the shopworn “path to citizenship” for illegal aliens will only enhance the incentive for aliens to enter or remain in the country unlawfully while further dividing the public that Biden claims he wants to unify. Such encouragement will ramp up the numbers, which is apt to undo the good Trump did in collaborating with Mexico to keep would-be entrants on the southern side of the border, which itself was a valuable disincentive to entry attempts. It will again become obvious, and urgent, that our dysfunctional immigration policies can only be cured by legislation. Trump could not fix this and thus could not deliver on his signature 2016 campaign agenda. The Left’s demagoguery about Trump’s “putting children in cages” — chain-link facilities built and also used by the Obama administration out of the same necessity to manage the chaos — obscures the reality that no president can fix immigration enforcement unilaterally. But Trump did reasonably well managing the border-security challenge. We are about to see just how well, when Biden takes charge and tries to manage the challenge while mollifying his impatient left flank.
Undone by COVID
COVID-19 mortally wounded the Trump administration, so it is worth closing with reflections on that.
The narrative will be that the president was cruising to reelection when the pandemic struck in act-of-God suddenness, harpooning the surging Trump economy. That misses the mark. Trump economic policy, steered by treasury secretary Steve Mnuchin and National Economic Council director Larry Kudlow, among other stalwarts, remained sound. The Tax Cuts and Jobs Act (Trump’s sole legislative triumph), deregulation, and other growth policies promoted work, savings, and investment, bursting the economy and the markets out of their Obama-recovery doldrums. The pandemic was not an economic collapse; it was a government-directed suspension of a healthy economy that remained poised to recover when the restraints came off. In truth, COVID’s coup de grâce was to frame in sharp relief the president’s personal flaws. We got whininess about how the pandemic affected his election prospects and the unfairness of it all, when crisis is a time for American presidents to exhibit confidence and selfless resolve. Trump persistently understated the threat, especially the time and effort it would take to get ahead of it (which is still a battle). What the public most needed was frank, non-hysterical, non-self-interested information from a president projecting calm competence.
At the most critical time, amid crisis and an election year, Trump came up short on the modern presidency’s tests of rhetorical leadership and of being a good example of the American spirit. His administration, however, performed well. Vice President Pence led a task force that managed a catastrophe which would have challenged any presidency. There were missteps at every juncture, as there always are — from a desultory ramp-up of testing in the initial stages to today’s halting rollout of the vaccine. Yet the administration got the big things right. Its cooperation with state governments in the supply of everything from protective gear and ventilators to hospital space was impressive. Its push on the fly to improve therapeutics and treatments — notwithstanding the president’s occasional off-the-cuff meanderings about bleach, disinfectants, and UV light — facilitated rapid progress in learning to treat the disease. Finally, Operation Warp Speed, a Trump-driven initiative to put government resources behind private medical ingenuity, should be remembered as one of the great achievements of modern time, developing multiple vaccines in less than a year — with the president’s critics caterwauling all the while that it couldn’t be done.
That is the tragedy. It was a presidency that did a great deal of good, with a president incapable of shedding his demons.