WSJ’s Stephens on Trump: ‘capricious, counterproductive, cruel and dumb’

Kudos to The Wall Street Journal‘s Bret Stephens, who is continuing to keep the heat on Donald J. Trump, even as some others on the paper’s editorial page — who also know better — seem to have lost the will to do so.Bret Stephens

His piece today, headlined “The Wrong Kind of Crazy,” plays off of the Nixonian global strategy — the “madman theory” — of keeping adversaries in the dark about what you might do in a crisis, which theoretically causes them to tread lightly. In the hands of grounded figures such as Nixon and Kissinger, the approach made some sense. But that was in the case of rational actors — the “madman” part was that you wanted your adversaries to want to act in ways that would keep you rational.

It doesn’t work so well when your president is an ignoramus who basically doesn’t do rational, or at least doesn’t do it any more often than a stopped clock states the right time.

Which brings us to the present day, of course, since this is the first time in our history that we’ve been in such a situation.

Stephens says Trump has done one thing so far that — against a background of Nixonian stability and pragmatism — could have fit in the “good crazy” category: throwing China off-balance with that phone call with the Taiwanese president. As he wrote, If Beijing wants to use ambiguous means to dominate the South China Sea, why shouldn’t Washington hit back with ambiguous devices of its own?”

Unfortunately, practically all of Trump’s brand of nuttiness is “the wrong kind of crazy: capricious, counterproductive, cruel and dumb:”

So much was evident with the president’s refugee ban on Saturday. And with Steve Bannon’s elevation to the National Security Council, and the Chairman of the Joint Chief’s demotion from it. And with the announcement Wednesday that Mexico would pay for the wall. And with the withdrawal from the Trans-Pacific Partnership trade deal on Monday and the aggressively protectionist themes of his inaugural. And with his performance at CIA headquarters. And with his incontinent fixations on crowd size and alleged voter fraud….

That’s quite a list, isn’t it, describing the insane things done by an administration that’s only 11 days old? (And that’s a nice phrase: “incontinent fixations.”)

Just take one item: Replacing the head of the Joint Chiefs with Breitbart’s Bannon on the National Security Council would by itself be enough for me, were I a member to Congress, to start looking into impeachment procedures. That’s just beyond gross.

Anyway, I appreciate that Stephens isn’t going all wobbly…

The theory is, there's good crazy and bad crazy.

The theory is, there’s good crazy and there’s bad crazy.


86 thoughts on “WSJ’s Stephens on Trump: ‘capricious, counterproductive, cruel and dumb’

  1. Brad Warthen Post author

    Of everything Trump has done, the one most likely to pose a threat to national security is putting Bannon on the NSC’s principals’ committee while demoting the director of National Intelligence and the chairman of the Joint Chiefs.

    That’s nightmare-crazy. That’s like Caligula naming his horse a consul…

    1. JesseS

      Eh, I’d say the Caligula comparison is still in hyperbole territory. Not by a lot, but he still has a ways to go. Besides Trump doesn’t seem like the animal type.

      Meanwhile on board the crazy train, Alex Jones’ InfoWars is starting up a DC branch. Appears they’ll likely get White House press passes. And we thought it was scandalous when the Bush Admin handed out press passes to a gay escort who posed as journalists so they could lob the president softballs back in the 2000s?

      Now we’ll have a truther who believes the Illuminati is behind fluoride in our drinking water, lobbing questions about Hollow Earth and Big Foot beside Steve Scully and Scott Horsley.

        1. Bart

          As for me Brad, you can use any reference you prefer. Godwin’s Law is non-binding and by invoking it when references are made to Hitler it then becomes a way to avoid the harsh realities of the horrors of the Third Reich and the potential that it could happen again.

          Agree there are times when it was and still is overused and ill advised but at some point, it is apropos because no other comparison is sufficient. And if it eases your mind and dispels any negative comments about using the Hitler comparison, the following comment comes from Godwin himself.

          “In December 2015, Godwin commented on the Nazi and fascist comparisons being made by several articles on Republican presidential candidate Donald Trump, saying that “If you’re thoughtful about it and show some real awareness of history, go ahead and refer to Hitler when you talk about Trump. Or any other politician.”

          Go for it.

  2. Brad Warthen Post author

    Some good recent Tweets from Stephens:

  3. bud

    And now we have a reality show spectacle to reveal SCOTUS nominee. Sheesh the orange, gropper in chief is the nightmare that keeps on deminishing the respectability of this once great nation. American exceptionalism is dead.

    1. Scout

      I think we might need a standard daily open thread to keep up with all the crazy things that the wizard of id gets up to on any given day.

    2. Mark Stewart

      I’m not watching.

      Trump’s genius move would be to nominate Garland. That would show me he is crazy as a fox. Anything else, he remains a total political disaster.

      1. Norm Ivey

        So if the narrative that all of the chaos is meant to be a distraction from other stuff is correct, that would be the perfect move. EVERYONE would flip out.

        1. Mark Stewart

          Nominating Merrick Garland would have been a shot out of nowhere.

          It would have:
          * Given Trump a conservative justice the Democrats couldn’t hold up.
          * Show Trump is a reasonable man who is not beholden to the party structure.
          * Been enough to satisfy his base, but even more peel off some of his voter opposition.
          * Give him cover against the drumbeat foretelling possible impeachment.
          * Poked Mitch McConnell in the eye on the same day Trump’s pick of his wife as Secretary won approval; crushing McConnell’s influence as he has already crushed Paul Ryan.
          * Prove to everyone that he means to “drain the swamp”, putting the entire congress back on its heels.
          * Currying favor with the entire Supreme Court, and probably much of the Federal Judiciary.

          To me, that would have been the masterstroke play. The pick he made was a good, solid selection for him; but it did none of the above. Merrick Garland would have been the crazy like a fox, this is why I am dominant, I am in total control move.

          So I’m glad he missed the opportunity to consolidate power. So far, this just remains the one thing he hasn’t yet screwed up in his Presidency to date.

          1. Mark Stewart

            I forgot a couple:
            * Keep the Democrats from employing the same tactics Mitch McConnell was so successfully able to use against Obama by excoriating it in the eyes of the voters.
            * Let Trump smile at the satisfaction of doing what Obama couldn’t get done.

            The last one would have been enough of a carrot for Trump, I would have thought.

            1. Claus

              So why him over Gorsuch?

              Trump will likely seat one, maybe two more in the next four years. So it’s not like it’s a one and done situation for this President.

              1. Brad Warthen Post author

                It’s not him over Gorsuch. There’s nothing wrong with Gorsuch.

                But Garland would have been a BRILLIANT move, a way to say, “I’m not here to play the usual stupid games you people play.”…

            1. Mark Stewart

              But instead he remains a near total disaster as a leader of the United States – and shows no signs that is going to change.

              1. Mark Stewart

                Trump is already in violation of at least two articles of the Constitution. We all ought to stop and give that more consideration than it’s been given during this confirmation process (which should go faster and be done with – De Vos excepted as she is clearly out of her depth like the President) and though the roll-out of Trump’s Executive Orders.

                This ought to be a situation the Senate, as a body, should be considering. It’s hard to square not addressing something so absolutely fundamental to our country’s existence. If we are not going to adhere to the Constitution of the United States then what are we? Who are we? I understand the great reluctance to confront Trump, politically, over this (especially so soon); however, this nation has elevated its representatives to honor their oaths of office. That’s not happening. That is not acceptable.

  4. Karen Pearson

    I’ve come to the conclusion that Trumps driving motive is terror. He is so afraid that he’ll lose his power and possessions that he strikes out irrationally at anyone or anything he thinks might be a threat to him, much like a person with a severe phobia might. This also leads to his apparent narcissism because he needs constant reassurance that he is the richest, most powerful man there is. He certainly needs to be prevented from doing anything harmful, but he’s more to be pitied than hated.

    1. Lynn Teague

      Hatred is always a waste of energy. In this case, pity is as well. Whatever damage exists in his psyche is just fine with him, he is not looking for a cure. He is pathetic in a way, but I’ll save my actual sympathy for the many people who are suffering and will suffer as a consequence of his decisions. The worst of those decisions, the root of many other bad decisions that have been and will be made unless something changes, is letting Bannon run the show.

  5. Harry Harris

    My daughter is convinced that the travel ban (or whatever) is a head fake designed to make him look reasonable when he “compromises” to a still hard-line position. I think he will continue to distract with the outrageous as a ploy to cause his (and Ryan’s) tax and safety net travesties to be viewed as reasonable. The whole right-wing is salivating at the prospect of their enrich-the-rich plans going into effect. This whole mess of an election is a significant step toward more control by monied interests. And, yes, they can dupe lower-paid working folks to vote against their own interests. New steps toward voter suppression are in mind with the “illegal voters” farce.

  6. Bryan Caskey

    Political strategy question: What’s the smart play for Senate Democrats with respect to Gorsuch?

    1. Filibuster and force the GOP to decide if they want to “nuke” the filibuster.
    2. Allow a floor vote, and vote no.
    3. Allow a floor vote, and vote yes.
    4. Something else.

    1. Bryan Caskey

      I’m operating from the assumption that Gorsuch is going to be confirmed no matter what the Democrats do. I’m just curious as to how they’ll play it. My advice would be to keep the powder dry for the next SCOTUS vacancy. Gorsuch doesn’t change the status quo ante. However, the next seat to open up will almost certainly do so. I think, strategically, that’s where the Democrats want to have their Alamo. If they fight to the bitter end on Gorsuch, the next fight will appear less significant.

      Also, there’s quite a few Senate Democrats up for re-election in 2018 in states that Trump won. That might be a factor for those specific Senators.

      1. Brad Warthen Post author


        Short answer: They should just vote, or if they’d like to make speeches or engage in debate first, do so. And then vote. And then move on to other matters, such as legislating rather than posturing.

        My real answer: Now you’ve gone and done it! You’ve unleashed the rant that’s been welling up in me all morning, and that will erupt in a separate post. I am utterly sick and tired of every court nomination being regarded by both parties as Armageddon, or as you put it, an Alamo. If the Democrats want to have “their Alamo,” let them do so, and reduce the partisan population. Then, I hope, the Republicans can have their Alamo, too, and we can move on from there to have rational government…

        1. Bryan Caskey

          “They should just vote, or if they’s like to make speeches or engage in debate first, do so. And then vote. And then move on to other matters, such as legislating rather than posturing.”

          Allow me to paraphrase you…to you:

          No posturing? From the Senate?


          Here’s how our Senate sees its job: putting forth noncentrist proposals that appeal only to the hardcore bases of members’ respective parties, then, when the legislation fails, running against the opposition for having killed the proposals.

          They do this to stave off challenges in their primaries from extremists. Passing actual LAWS would involve working with the opposition on consensus legislation, which would mean death to the member in his primary.

          1. bud

            The Senate is not like the house. Senators do not need to be extreme to win especially in purple states like FL or PA.even in SC Lindsey has managed to stave off extreme challengers. The Democrats won’t win the Supreme Court battle but should fight it and delay as long as possible. Just having a 4-4 tie for a few months can stave off the conservative carnage a while until Trump implodes completely. By then maybe the court of public opinion will dominate. It’s a tough time to be a Democrat.

        2. Claus

          Filibustering should be illegal, I don’t understand how it’s allowable when if for example we’re talking about voting for a SC judge and someone can stand up at the microphone and talk about their family vacation for 4 hours. Stay on topic, once you’ve started repeating yourself you have to sit down.

          1. Brad Warthen Post author

            I don’t approve of filibusters, either. Either win the argument on its merits — and if you want to do THAT for 36 hours, more power to you — or move on to another battle. Don’t just obstruct the process.

            Unless you’re Jimmy Stewart. Then it’s OK…


    2. Norm Ivey

      Confirmation is a foregone conclusion. Gorsuch is conservative, but I’ve not seen anything objectionable about him yet, so I think they have to vote yes on the floor. There may be a handful to vote against him–maybe the same ratio that voted against Kagan and Sotomayor.

      1. bud

        Kagin and Sotomayer each had more than 30 no votes. It only takes 41 to sustain a philibuster. I say make em us the nuclear option.

          1. Bart

            I agree with you on two things. First, it is a difficult time to be an American or citizen of the US. Forget party and ideological politics, instead concentrate on being a good citizen of this country. Party and identity politics be damned.

            Second, I agree the nuclear option is not just bad strategy but could potentially be a disaster, especially when it comes to SCOTUS nominees. Harry Reid used the nuclear option on another matter and in the end, at least for the next two years or however long Republicans stay in control of Congress, it will be used against Democrats unless all members of Congress come to their senses and realize they represent all of the people of this country, not just members of their party and like-minded ideologues. What goes around, comes around.

          2. bud

            It’s the ONLY strategy. Dem voters are very restless and they need some reassurance that they’ll at least try. There is nothing to lose. Gorsuch will never defend planned parenthood or Roe v Wade. Nor will he touch Citizens United or interpret the 8th amendment in a reasonable way. Let’s just go ahead and get rid of the filibuster now. If not now when?

            1. Bart

              Had planned a long response but chose not to. My only comment and brief explanation is to “be careful what you wish for”. Remember that Ginsberg is over 82 and Kennedy is over 80. It is very likely Ginsberg won’t be on the bench much longer during Trump’s administration and unless Congress swings back to Democrats in 2020, it is likely that if the nuclear option is used, he will be able to stack the SCOTUS with his picks and they will remain on the bench for years and years to come. Do you really want that?

    3. Claus

      He was unanimously voted in as a circuit court judge, I’d be surprised if the Democrats who voted for him would now decide he’s unfit for the job. I don’t know how you can find a more qualified candidate, he’s clerked for two SC justices, received a PhD from Oxford and a law degree from Harvard. What more do they want?

        1. Brad Warthen Post author

          Being qualified is all that matters. It is unconscionable to choose a judge based on assurances that he will rule specific ways in specific cases….

          1. Bart

            Excellent comment Brad. Qualifications are key, not your ideology or how you would rule on a hypothetical case that is almost always geared to extract the wrong answer by the opposition, Republican or Democrat. Some justices have surprised the president who nominated them and went in the opposite direction so who knows how Gorsuch will decide on any given case unless it is in direct conflict with the Constitution. Donald Trump actually did something I agree with by nominating Gorsuch. And if he had nominated Garland, I would have been supportive. Both are mainstream and Gorsuch is about 2 degrees center right and Garland about 2 degrees center left. I much prefer justices that are more centered that ones that are too much right or left, that is not good for this country.

          2. Norm Ivey

            It’s about trust. I haven’t heard anything about or from Gorsuch that makes me distrust him. I’m not sure I like his leanings, but that’s not the point. Honest and fair are what matters.

            1. Bill

              Well, I wouldn’t trust his views on so-called “religious freedom” cases. The Hobby Lobby decision was just plain rotten. Once an institution enters the commercial marketplace, it should play by the rules of the marketplace — which don’t include forcing your religious views on your employees.

              1. Bryan Caskey

                I would have figured that you and bud would be okay with a jurist who is very skeptical of expansive executive power in a time when Trump is POTUS.

                In particular, Gorsuch has written opinions defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws. I just sort of figured that might appeal to people who think the current executive is a maniac.

                But I guess birth control uber alles, eh?

                1. Bill

                  What I’m skeptical of are religious zealots exercising expansive powers over their employees’ private affairs.

                  But I guess for you people, privacy doesn’t have any real constitutional substance and religious zealotry should be allowed to trump most other considerations.

                  1. Brad Warthen Post author

                    “religious zealots exercising expansive powers over their employees’ private affairs”

                    Seems you just changed the subject. Maybe I missed a comment somewhere, but I don’t see how those words bear on what we were talking about…

                2. Bill

                  The comment was about trusting Gorsuch. Apparently you overlooked the reference to the Hobby Lobby decision. Gorsuch agreed with it.

                  1. Brad Warthen Post author

                    Yeah, I saw that.

                    But what you said didn’t describe what the case was about. It was about whether an employer would be forced to do something or not. At least, that’s what I recall. Wikipedia seems to remember it my way:

                    Burwell v. Hobby Lobby, 573 U.S. ___ (2014), is a landmark decision[1][2] in United States corporate law by the United States Supreme Court allowing closely held for-profit corporations to be exempt from a regulation its owners religiously object to if there is a less restrictive means of furthering the law’s interest, according to the provisions of the Religious Freedom Restoration Act (RFRA). It is the first time that the court has recognized a for-profit corporation’s claim of religious belief,[3] but it is limited to closely held corporations.[a] The decision does not address whether such corporations are protected by the free-exercise of religion clause of the First Amendment of the Constitution.

                3. Bill

                  Yeah, I DO know how the decision was formulated. But the impact of the decision was to allow commercial enterprises to deny their employees certain benefits solely on the basis of the employer’s religious views. So, yes, in effect the employer is imposing his views on his employees. Like I said, once an entity enters the commercial arena it should not be allowed to discriminate based on religious views — and, yes, that should also include “forcing” a business to provide services to those its owners consider to be committing “sin.”

                  1. Brad Warthen Post author

                    What employees did or did not do was neither here nor there. The employee wasn’t in any way compelled to do anything or not do anything.

                    The issue was whether an employer should be compelled.

                    And I can see arguments both ways, but where the court ended up — which was sort of a hedged decision — seems reasonable.

                    Of course, we wouldn’t have this problem if the government had gone with single-payer, instead of a system that involved coercing private employers to do things.

                    Or we wouldn’t have the SAME problem. Congress would have — and to the extent that there were varying opinions SHOULD have — debated whether to include this or that service or drug or procedure within the single-payer coverage. But once that was decided, it would be decided, and there’d be no problem with coercing private actors to do things they didn’t believe in…

                4. Bill

                  “where the court ended up … seems reasonable.”

                  Apparently, “reasonable” now includes the idea that for-profit businesses can have a religious faith. With that kind of “reasonable,” we’re not far from the land of the absurd.

                  1. Brad Warthen Post author

                    No, PEOPLE have religious faith. And sometimes people also own businesses.

                    And that’s where the court hedged, ruling only that closely-held corporations could not be compelled to do things that violated the owners’ consciences…

                    1. Bryan Caskey

                      “No, PEOPLE have religious faith. And sometimes people also own businesses.”


                      But hey, we wouldn’t want to live in a world where folks have to pay for their own contraception. That’s the fundamental right our western civilization is built on.

                    2. Brad Warthen Post author

                      Which goes back to your birth-control über alles comment earlier.

                      This is not an issue I get worked up about a whole lot. I can’t fully, 100 percent identify with either camp.

                      But it seems to me that where things get… eccentric… is in Democrats’ weirdly adamant insistence that any health care plan MUST include coverage for birth control, that it isn’t healthcare without that.

                      Its odd. I mean, if you told me you weren’t going to cover birth control, or cosmetic surgery, or, God help us, Viagra — things that have to do with optional things that people choose to do or not to do, I’d say OK, whatever. (In fact, if you wanted to COVER Viagra I’d probably laugh you out of the room.)

                      Where I would draw the line would be at treatment for cancer, or heart disease, or broken bones, serious wounds, or ob/gyn or urology or measles or the mumps or hypertension. If you didn’t cover things such as those, then it wouldn’t be health care.

                      It’s just odd where Democrats decide to fight their battles. Not surprising, since we’ve gotten used to this variant of Newspeak that Democrats use (Republicans have their separate versions), but it’s still odd

                5. Bill

                  It doesn’t matter what sort of mangled legalistic arguments someone may throw at it, no commercial enterprise – whether it be closely held or not – should be able to essentially claim exemptions from generally applicable laws based solely on its owner’s religious faith. If, as you argue, business owners should “not be compelled to do things that violate the owners’ consciences” (though I think the term is “closely-held religious beliefs,” not simply “conscience”), then it will be ok by you for businesses to refuse to serve gay customers. In that case, it’s worth recalling that there was a time when it was many folks in this part of the country had the closely-held religious belief that God had created the races separate and distinct and that it was a sin to mix them – whether that mixing be in the form or marriage OR public accommodations, which include businesses. Some folks today fail to draw lessons from the past — or refuse to evolve.

                  As for Hobby Lobby, I agree with Justice Ginsburg’s dissent, which includes the following points:

                  “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”

                  “Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.”

                  “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”

                  “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations…Not much help there for the lower courts bound by today’s decision.”

                  “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.”

                  “The court, I fear, has ventured into a minefield.”

                  Yes, a minefield.

                  Lastly, I just wanna just say that in my view where things get “eccentric” is when a person’s supposed religious faith gets mussed up over something like birth control devices. That to me has nothing to do with true faith.

              2. Bart

                If I apply for a job at Hobby Lobby and their religious views are already known to me, then by fiat, I am accepting the guidelines for employment at Hobby Lobby considering the fact it is a closely held corporation and no stockholders to answer to. I may be gay and pro-choice but if I knowingly accept employment at a Hobby Lobby store, their views are not forced on me.

                The same goes for a secular corporation that supports total diversity across the social spectrum. I may be pro-life and anti-gay marriage but the corporation is an active supporter of Planned Parenthood and gives to social causes I object to.

                However, if I accept employment, then I accept the causes the corporation supports. It doesn’t mean I have to attend rallies or participate in activities for the causes it supports. If the corporation makes it mandatory then I have the option to refuse employment or accept and be a participant, willing or not.

                Question. If you are out of work and the only place with job openings is Hobby Lobby, would you apply knowing their position on religion and abortion? Remember, you have the option to take part of your paycheck and voluntarily contribute to causes you support, Hobby Lobby cannot legally stop you from spending your pay any way you choose to.

                1. Bill

                  That’s really a rather silly hypothetical. But maybe I should assume that in this scenario the Lord has stepped in a smitten all the sinful businesses low, leaving only His chosen retailers in operation.

                  If Hobby Lobby wants to become a religious organization, then there’re welcome to do as they please. But once they enter the worldly marketplace, they should put aside holy things and do as other worldly enterprises do.

                  Anyway, my family stopped shopping at Hobby Lobby in the wake of the decision. We go to Marshall’s instead — which is a better store anyway.

                2. Bart

                  Thank you for your response. First, I will disagree it is a silly hypothetical. When the great recession hit so many so hard, jobs were difficult to come by and most who were out of work would take whatever they could find. Asking or demanding they adhere to one’s ideological, social, or political beliefs as a litmus test and not accepting a job won’t put food on the table or pay for family essentials. Why not ask someone you know who lost their job if it is a silly hypothetical.

                  There are 55 privately held corporations each doing over $2 billion annually for a total of $300 billion plus in annual sales. I’ll choose one, Publix, as an example instead of Hobby Lobby. If Publix supported every social issue I would be opposed to, while I wouldn’t agree with their policies, if it meant feeding my family, wearing the green apron wouldn’t bother me at all. Tell me, what would be the purpose for not taking a job if feeding your family was the central issue?

                  Some of the more liberal corporations are Starbucks, Johnson & Johnson, Disney, Google, Home Depot, and Kellogg’s. Now, I do drink coffee and occasionally stop at Starbucks for a cup. And why would I not patronize Johnson & Johnson if I need bandages, over-the-counter medications, etc.? I use Google to search the internet and have a Gmail account. I have bought a lot of goods from Home Depot and every morning, I eat my Kellogg’s bran cereal. The liberality of the ones listed does not bother me at all and if anything, boycotting a business because of their policy that has no impact on my family or me is silly.

                  As for the remark about the Lord smiting the sinful businesses low, where did that come from? Hobby Lobby doesn’t have loudspeakers going with gospel music and hellfire and brimstone preachers blaring over a speaker system. They are not a religious organization in the sense you are trying to portray them. I don’t really care to shop at Hobby Lobby because almost everything they sell is imported, very few made in America products available.

          3. bud

            No it’s not. The way they will vote is HOW you determine if they’re qualified. Who cares where they went to school or what court they served on. Any potential nominee is qualified.

          4. bud

            It’s actually only academic discussion anyway. How a candidate votes is how they are selected whether Brad or bud thinks that’s relevant or not. That’s just reality. I would never vote for a candidate who would overturn Roe. And be honest Brad would you vote for a staunch pro choice candidate?

            1. Bryan Caskey

              Bud, please read and let me know your thoughts.

              As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here–reading text and discerning our society’s traditional understanding of that text–the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments…if our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different.

              The people know that their value judgments are quite as good as those taught in any law school–maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should become question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated.

              Anyone else, feel free to chime in. Agree or disagree? Thoughts?

              1. bud

                I’m not exactly sure what you’re asking so let me be clear on what I think. The constitution was written over 200 years ago so ANY interpretation of it cannot be settled without the context of where we are now. That makes originalism an unworkable philosophy. A smart person can craft an argument to justify any position on any issue. Consequently it is necessary to make a determination on just how a justice is likely to vote. In effect I am willing to defend litmus tests.

                But again even if you find litmus tests abhorrent, as Brad apparently does, it is undeniable that Presidents select on the basis of litmus tests then find a bright, articulate candidate who meets the litmus test. So why should I support a nominee who fails my personal litmus tests? I the case of Gorsoch he may very well be a bright man thouroughly versed in the constitution. But he’s still a conservative who will work against the best interests of the country. And that needs to be resisted.

                1. Bryan Caskey

                  “The constitution was written over 200 years ago so ANY interpretation of it cannot be settled without the context of where we are now.”

                  So what’s the point of having things written down if they’re always subject to being interpreted differently over time?

              2. Bart

                Anton Scalia was a brilliant man and an even greater Supreme Court Justice. Perhaps the most brilliant Justice in decades. What else can one say?

                His comments are succinct and apropos to a true republic, not a true democracy because in a true democracy the rights of the individual are trampled on by mob rule. We are moving closer and closer to mob rule. That is why we need a Justice who is bound to uphold the Constitution and not seek to pass laws by dictate on value judgments. We don’t need activist judges, we need judges who will decide on the basis of law, not emotions or causes or politically driven decisions.

    1. Bart

      Interesting article, thank you for the link. Apparently you agree with the author and apparently in your estimation he is brilliant. Nothing wrong with that. Considering Judge Richard Posner’s opinions and his writings, I understand why you agree with him and providing a link to the article apparently is an indication of your predilection for his views on the Constitution and Supreme Court Justices. Another interesting piece of information about Posner is he is a Republican, appointed to the bench by Reagan.
      Another interesting factoid. Posner is a senior lecturer at the University of Chicago Law School, the same university where our former President Obama was a lecturer on the Constitution. Apparently both share the same view of the Constitution as evidenced in comments by Obama and Posner’s response to a post on Slate along with many of his other writings.
      He replied with the following to the post: “And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today. David Strauss is right: The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about.
      In short, let’s not let the dead bury the living.”
      Dick Posner
      I don’t disagree with Posner on his position that judges should have practical experience arguing cases before the court before they are allowed to sit on the bench. However, Posner himself never practiced law before the bench and it was only after he was appointed did he decide to take cases and act as an attorney.

      For the record, seldom do I give credence to any author of an article or opinion piece before checking his or her background and where they stand on the issue(s) they are addressing. Based on Posner’s record and comments, it is obvious to me he is an intelligent individual but with a penchant for petty jealousies and a knack for vitriol against anyone who disagrees with him. It took a few lines from his comment and a little research to reach my conclusion:

      “On a different subject, I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don’t want to spoil the chances of their students to obtain Supreme Court clerkships. I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.” Nice shot at two very respected females in the legal profession.

      Bryan, as an attorney, what is your opinion?

      1. Bill

        Yes, very perceptive: I do agree with Posner’s analysis on Scalia.

        But I suspect that your rush to judgment about Posner’s character — “a penchant for petty jealousies and a knack for vitriol against anyone who disagrees with him” — is colored by your own biases and less by any real knowledge of the man or his views in general, let alone how he treats others.

          1. Claus

            I saw this on television about a month ago. WORST MOVIE EVER, horrible acting, ultra-hippy left wing script. Thank God the 1970’s are over and forgotten. I remember seeing it as a kid in the theater, the only thing I remember was some gratuitous nudity (of a woman that I would now pay to keep her clothes on) and him kicking the guy in the face on the courthouse lawn.

            1. Brad Warthen Post author

              Oh, it was truly AWFUL, but not the worst. The previous movie Billy Jack appeared in, “The Born Losers” (1967), was worse. Fortunately, most of us missed that one.

              It was a hit for one reason: A lot of us hadn’t seen that kung fu stuff before in 1971; it was a novelty. Everybody went to see it, and see it again, for those few minutes when Billy a) whups up on the guys in the ice cream parlor and b) kicks Posner upside the head.

              Billy Jack created the formula that Kung Fu perfected — the decent, principled silent type who tries to be peaceful, but always ends up expertly kicking butt.

              Audiences ate that up…

        1. Bart

          I believe in being fair and honest. With that in mind, I went back and read several of Posner’s writings and opinions. In all fairness, he is a brilliant man and his insights are astute whether I agree with them or not. I could not find any incidents or actions to suggest he treated others badly. After reading several of his writings, it is obvious he walks to the beat of a different drummer when it comes to legal issues and the behavior of judges, especially members of the SCOTUS bench. He also has issues with judges who have never practiced law in a court becoming teachers and lecturers. He believes this does not qualify them for the bench because they have never had practical experience, only the intellectual and classroom aspect of jurisprudence.

          He was fair when he criticized the long decisions written by the majority and dissenting opinions of the SCOTUS, expressing his dislike for the excessive verbiage that has become a common practice when decisions are handed down. I like his penchant for brevity even though I am guilty of being long winded at times. In fact, if he was the nominee to full Scalia’s seat on the court, I would be hard pressed to not agree with the choice. However, he has made it clear he is not interested at is age and his view of the Constitution would be a hindrance for a committee to recommend whether it is headed by Republicans or Democrats. He is a quasi-conservative and would have difficulty even with this committee based on some of his rulings and opinions that were and are not in line with the majority as it stands now.

          I stand by my conclusion he is a petty jealous person and does have a knack for using vitriol against anyone he does not agree with on judicial matters. In other words, he does not suffer well people he considers fools and is not hesitant to say so in print. This is a theme in most of his writings and opinions. Based on my extended research, while he may be one of the most respected and most often quoted judges according to the Journal of Legal Studies, being afforded the accolades does not automatically exclude him from demonstrating human frailties of the ordinary person.

          I agree with him that the SCOTUS has become too politicized and judges are too political and many other issues he takes to task.

          I could go on but no need. Thank you for questioning me, it made me think and do more research. That is a good thing.

          1. Bill

            Well, I guess it’ll just have to remain a mystery how ad hominem attacks on Mr. Posner’s character (which I still suspect are based on little or no evidence) have anything to do with his analysis of Scalia’s judicial philosophy. So much for being fair and honest.

            1. Bart

              Next time you want to call me a liar, be a man and do so direct. Apparently you haven’t read many of his writings and comments about others he disagrees with. Or maybe you emulate him and consider the way he communicates his thoughts to be shining examples of civility toward those he considers fools. So much for the so-called liberal tolerance of others views.

              1. Bill

                Still don’t see what any of this has to do with his assessment of Scalia — who, just by the way, was himself hardly a shrinking violet when it came to expressing his opinions about others’ intellectual product. But even if Posner is a real lout, that still doesn’t take one whit away from what he has to say about Scalia. And that, to me, is all that matters.

                1. Bart

                  Just to be clear, Posner’s comments about Scalia were not the only ones I used to draw my own conclusion. Among many I found, his remark about Kagan and Minow was uncalled for. All they did was to pay honor to someone they respected. It would have been an appropriate time to keep his opinion to himself.

                2. Bill

                  Well, all I can say is that is seems as if a certain president we know is not the only one who attacks judges whose conclusions he doesn’t like by attacking their character.

                3. Bart

                  Really? After 2 days to think about it, this is the best you can come back with? Have a nice day. 🙂

  7. Harry Harris

    Stephens left off the current perception that Trump IS the celebrity apprentice – and he’s messing up “big league” due to his arrogance and vast ignorance.

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