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Why Never Trumpers’ Attack On The Federalist Society Is Disingenuous And Foolhardy


In this most partisan moment in American politics in living memory, the defining issue of our time has become a simple yes or no question: Are you for or against President Donald Trump? The middle ground is all but gone. It is in this context that the news about an ad hoc legal group calling itself Checks and Balances must be considered.

In a normal political environment, thoughtful citizens and principled conservatives might see that their duty was to support the president when possible and oppose him when necessary. But any political discussion these days is inevitably boiled down to one about whether Trump is a legitimate president, or if his continued existence threatens America’s freedom and democracy. Those who view him as a threat are of course going to view any support of such a president as a betrayal of basic principle.

That brings us to Checks and Balances. The group was unveiled this week in flattering article published in The New York Times timed by its leader George Conway to coincide with the annual convention of the Federalist Society — the legal group that has played a central role in the effort to defend conservative legal principles over the last few decades. The raison d’être of Conway’s group isn’t much of a secret. It hopes to “check” the willingness of conservatives and specifically the Federalist Society to remain in the Trump camp.

The Federalist Society is not a political group, strictly speaking. But its role as the intellectual incubator of a movement to promote conservative legal theory and the appointment and confirmation of conservative judges to put those ideas into action inevitably involves politics. Trump relied upon the Federalist Society to supply him with a list of possible nominees for the U.S. Supreme Court, as well as for lower court nominees, and he heeded their advice. So, along with Senate Majority Leader Mitch McConnell, the Federalist Society deserves the lion’s share of the credit for Trump’s success in putting two conservatives (Neil Gorsuch and Brett Kavanaugh) on the Supreme Court and dozens of others on federal appellate and district benches.

The realization of this longtime goal of all conservatives is reason enough for those who support the Federalist Society’s goals to be grateful to Trump. But as Conway told The New York Times: “Conservative lawyers have essentially sold their souls for judges and regulatory reform. We just want to be a voice speaking out, and to encourage others to speak out.”

As Trump has been at pains to point out, Conway is better known as the husband of Kellyanne Conway, counselor to the president. As one of the lawyers who represented Paula Jones in her lawsuit against President Bill Clinton, George Conway has some standing in the conservative legal community and among Republicans. But his criticism of Trump has earned him notoriety as part of a very public mixed political marriage.

That said, he and the others supporting Checks and Balances have taken issue with the president on some legitimate points. They oppose his stand on birthright citizenship and Trump’s belief that he can change a law that is part of the text of the 14th Amendment by merely signing an executive order. Their position is on firm legal ground and consistent with conservative opposition to President Barack Obama’s highhanded contempt for the rule of law when he used executive orders to make an end run around Congress to give legal status to illegal immigrants.

There is also room to admonish Trump for his criticisms of Department of Justice prosecutions of Republicans, his unpresidential way of speaking, and the way he is often willing to skirt the truth or completely ignore it in order to score a point against an opponent or critic. But the problem with the complaints of Conway and his friends (among whom are some distinguished conservative legal minds as well as former Homeland Security Secretary Tom Ridge) is that their critique seems broader than just a specific disagreement on certain legal issues.

When Conway and former Bush White House lawyer John B. Bellinger III tell The New York Times that they are motivated by their worries about Trump “attacking the press and putting it in danger” or “the disinformation and spin” coming out of the White House, it’s clear they’ve crossed the line that divides conservative critiques on specific issues to broad condemnations that are rooted in the sort of disgust for Trump that marks the liberal resistance.

One needn’t like everything Trump says and does to know that nothing endangers the Constitution in his attacks on his media critics, who remain free to savage him and his administration at every turn, often with as little concern for fairness as anything emanating from the White House. Nor is it a conservative principle to defend the right of reporters to lecture or debate the president at White House press conferences, as those who have turned CNN’s grandstanding reporter Jim Acosta into a martyr seem to be asserting.

To treat these disagreements, even when Trump behaves badly, into crises in which the future of the republic is put at risk, isn’t a statement of principle. It’s merely Never Trump politics expressed in the sort of disdain for the president and his supporters that seems rooted more in class than in a defense of conservatism, let alone the Constitution. That’s why Conway’s talk of members of the Federalist Society “selling their souls” to realize goals that conservatives have sought to achieve for many years rings hollow.

Trump’s coarsening of public discourse is lamentable. Were it part of an effort to actually subvert the rule of law, self-government, and the Constitution, it would have to be fought by all conservatives. But treating the Trump administration as a rerun of the last years of the Weimar Republic is liberal hysteria, not conservative analysis. The substance of Trump’s government has actually been normative conservatism, not revolutionary populism.

Many Republicans were skeptical of or opposed to Trump in 2016 because of his style and reasonable fears he was no conservative. If the overwhelming majority of them have come around to supporting him, it is specifically because he has kept his promises and governed like a conservative. It is not conservatives who have sold their souls for judges and deregulation. It is Trump who changed and embraced conservative principles in exchange for the support of Republicans.

The Never Trump pundits who were once conservatives but now espouse liberal positions on issues that they once despised so as to oppose the administration on all fronts — and who now bask in the applause of the chattering classes from their perches at CNN and MSNBC — are the ones who have lost their moral compasses.

More to the point, the all-out attacks on the administration from Democrats and their cheering section in the mainstream liberal media are not about wrongheaded policies like opposition to birthright citizenship. They are instead focused on the legitimacy of the administration that has delivered on so many issues for conservatives.

Under these circumstances, the attempt of Conway and his friends to pose as a moral alternative to the Federalist Society and others who are supportive of the administration is disingenuous. They should not be surprised if their former colleagues on the right who will not turn their backs on the administration — and remain in firm possession of their souls — treat Conway’s critiques as mere partisan brickbats better suited to the “resistance” than to conservatives.