Wednesday, November 28, 2018
Wednesday, Nov. 28, 2018
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Wednesday, November 28, 2018. I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.
How a public debate between the President and the Chief Justice may reshape the American political landscape
Just over the last several days, something has happened that doesn't often happen in American politics. It's very rare in American history. A public debate between the president of the United States and the chief justice of the United States. Now, it's not because politicians and presidents are not often in public confrontations. It is because chief justices of the United States have throughout most of the United States' history studiously avoided any kind of public controversy. That's been a part of the ethos of the nation's highest court and beyond that the federal judiciary. It has been a precedent that has long been guarded.
Thus, it became headline news as The New York Times reported, "Chief Justice John G. Roberts Jr. defended the independence and integrity of the federal judiciary rebuking President Trump for calling a judge who had ruled against his administration's asylum policy an Obama judge. The chief justice said that was a profound misunderstanding of the judicial rule, 'We do not have Obama judges or Trump judges, Bush judges or Clinton judges.' This according to the chief justice in a statement released by his office, 'What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.'"
Now, this raises a host of questions. Why did the chief justice speak now? Why did he speak to this situation? It of course raises an even more fundamental question, did the chief justice speak accurately? Did he speak rightly? Well, he didn't speak alone. Before long, President Trump responded on Twitter, "Sorry Chief Justice John Roberts, but you do indeed have Obama judges." The president went on to say, "And they have a much different point of view than the people who are charged with the safety of our country."
Now, in that statement the president by Twitter was not so much contrasting more liberal judges with more conservative judges as he was contrasting a liberal judiciary and the nation's national security apparatus. Adam Liptak, a longtime observer of the Supreme Court, writing for the Times said, "That blunt statement from the chief justice may represent a turning point in the relationship between the heads of two branches of the federal government, which until last week had been characterized by slashing attacks from the president and studious restraint from the chief justice."
Let's just rehearse a couple of historical facts here. The chief justice of the United States was nominated to that role by a Republican president, President George W. Bush. It is also very important to recognize that the chief justice had before that been exactly the kind of judge and judicial candidate who had attracted the attention of The Federalist Society and other conservative legal groups, the very same people who are recommending judicial nominees to President Donald Trump. That is to say, that if we could go back in history, which we cannot, if we could change the historical circumstances, again we cannot, it is at least important to say that it's plausible that under different conditions none other than President Donald Trump might have nominated none other than Chief Justice John G. Roberts Jr.
Like Justices Gorsuch and Kavanaugh, the chief justice had a long tradition in working in conservative legal circles. He is also well known as variously termed an originalist, a textualist, a strict constructionist. When you're looking at the great divide, the great worldview divide, the great interpretive divide, concerning the Constitution and the statutory law, the divide that currently marks the Supreme Court so much so that we tend to talk about five conservative and four liberal justices, when you think about that divide, it's really clear that John Roberts is on the same side of the divide as the president and the judges and justices he has heretofore nominated.
The chief justice is, by the way, not just chief justice of the United States Supreme Court, but chief justice of the United States, the chief justice is indeed at the top of the second of three coequal branches of government according to our Constitution. The president and then the chief justice and then of course, you're looking at the legislative branch, and at this point, the highest ranking member of the legislative branch is the speaker of the House of Representatives. But when you are looking at the judiciary, you are looking at the quiet branch of American politics. It has been intended that way from the beginning, and it's not just a part of the American experience. The same is true if you go back into British or European circles. The development of a modern independent judiciary has been one of the hallmarks of western democracy, one of the protections of liberty.
That raises that question why in the world did the chief justice speak out now? Well, The New York Times, the Washington Post, other major media were certainly not wrong in saying that the historical event that prompted the chief justice to speak was the president of the United States criticizing a federal judge for putting a halt, at least a temporary halt, on the president's asylum policy changes. But the Times and the Post are also right in pointing to the fact that there has been building pressure between the executive and judicial branches in the United States, particularly because of two developments. One development is the open, unprecedented criticism of federal judges by the president of the United States. Sometimes in statements made in speeches, more often even in the president's favorite method of communication, the tweet. But there's also the development of the fact that so many of the policies undertaken by the Trump administration have come under judicial review.
Now that raises a question. Is that proper or not? Well, the president has a legitimate concern about the overreach of federal judges and federal courts. These days, the federal courts have expanded their purview to the point that, here's a very crucial Constitutional issue, one single district court judge in the United States can at least in temporary terms, nullify or invalidate and put in suspension an executive order or a policy from the president of the United States. That is a disequilibrium that is an insult to our Constitution. Just to consider our Constitutional order, it is implausible that our founders intended a single district court judge anywhere in the United States to be able to nullify the executive authority of the president of the United States. And President Trump is by no means the first president to be very troubled by this development. It has vexed other presidents. It has vexed presidents of both parties. But it is a particular irritation to Republican presidents because of what has often been seen as the liberal bent of so many of the judges who have intruded in these cases.
Now, why would that be the case? It is because more conservative judges are actually less likely to give hearing to so many of the cases and so many of the arguments brought by liberal activist groups. That's a part of the restraint that marks a conservative approach to being a judge and the office and the responsibility of the judiciary. That contrast is why you have had conservatives complaining for decades now about activist judges, that is judges that are acting, when actually the judge should not act. The overreach of the federal courts is a major new imbalance in our Constitutional order, and the president's frustration is understandable in that light.
But the president's constant retort to Twitter and his use of personal invective and criticism is not only the breaking of a precedent, it's the breaking of a democratic norm, it is also, and this has to be communicated to the White House, it is also not in the best interest of the president's own ambitions and hopes. That's to say, and if you consider this in the proper light, you understand that it is not wise to seek to publicly provoke the very people who will eventually make a ruling on your arguments and your cause.
I think we can understand in communication terms what the president is thinking. He is thinking, as so many other presidents have thought, "I will go over the heads of the judiciary and go directly to the American people by Twitter or television or whatever. I will get the attention of the American people, and they will bring pressure upon the judges." That's exactly what President Ronald Reagan began to do in the 1980s. He went over the government to the American people in order that the American people would bring political pressure.
But there's a crucial distinction, President Reagan was going over the heads of Congress to the American people believing, quite effectively, that the American people would put pressure upon their elected representatives, their member of Congress or United States senators, and bring pressure that would lead the Congress, finally, to take action on the president's priorities to eventually vote for his proposed legislation. But there's a big difference in trying to go over the heads of the judiciary to go to the American people to bring public pressure. Why is that? It is because there is virtually no means for public pressure to be brought against a federal judge or the entire federal judiciary.
A barrage of tweets might well have impact on a member of Congress or a United States senator, they're going to have to face voters again. That is not true for judges. And from a Christian worldview perspective, that also raises a very different aspect of our analysis here. It comes down to this, we understand that every single human being is susceptible to pressure, to persuasion, even to argument. And, of course, every single human being, and that would include especially every single elected official, is susceptible to pressure from those who are doing the voting, from those who are doing the electing. But that also then raises the question to whom are judges susceptible to influence? Who is likely to influence judges?
And the answer to that is very, very limited. But the answer is also very clear, and this is another problem. Those who are most likely to influence judges and justices are other judges and justices. If there is a wider circle, that wider circle is probably only made up of elite academic opinion in the nation's leading law schools.
The chief justice made a very important Constitutional, he made a very important moral point, when he said that federal judges were to be an independent judiciary, and that we as the American people should all be thankful for that judiciary and its independence. He spoke of judges as, "An extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."
Now, if you have any background in studying American government, if you love and have read the US Constitution, if you have had even a high school course in civics, you come to understand that the chief justice said what is exactly right as the ideal of the American system of government. However, the chief justice did not rightly describe the judiciary, or even his own court, under current terms. Indeed, we should wish for the fact that we had a truly independent federal judiciary where it wouldn't matter which president had nominated which judge or justice to office. We do not live in that world. When the president tweeted back at the chief justice, "Sorry, but you do indeed have Obama judges, and they have a very different point of view than the people who are charged with the safety of our country," the president was, if inelegantly and breaking democratic norms, speaking to what just about everyone recognizes is political reality.
It matters so much, and this is just intellectual honesty, it matters so much who appoints judges and justices that they are counted that way by both sides. It matters so much that as Marc Thiessen of The Washington Post pointed out, Justice Anthony Kennedy timed his retirement so that another Republican president could nominate his successor. That's how much all of this enters into political calculation.
Ask Justice Ruth Bader Ginsburg, one of the liberal justices on the Supreme Court, are you a Democratic judge? And she, following policy, would almost assuredly say, "No." But you can mark for certain the fact that she is not going to willingly retire under a Republican president who would name her successor. The same thing is true of every other justice on the United States Supreme Court, and it is on the front of the minds, not in the back of the minds, of every single retiring federal judge at every single level.
So just to be honest, I wish the president had not used the forum or the language that he used in order to make this public rebuke, but he was making a point that nonetheless stands up in actuality. He was defining reality. He was expressing frustration, but even in so doing, he was pointing to what is simply the facts on the ground when it comes to the federal judiciary, including the Supreme Court at the present day.
Now, was the chief justice right to defend the judiciary? He virtually has no choice but to defend the judiciary. Was the chief justice right to try to articulate an ideal of an independent judiciary? No, that's actually his job. But it's not the chief justice's job to release public statements in a public confrontation with the president of the United States. That's a bad precedent.
Josh Blackman cited in The New York Times article a law professor at the South Texas College of Law in Houston said this, "Ultimately, I think this sort of statement will backfire. The president, President Trump, will always have the upper hand to escalate his attacks on the judiciary." There's more than that, by the way. There is simply the question, where was the chief justice making such a statement when the aforementioned Justice Ruth Bader Ginsburg made an open statement of her political opposition to the president of the United States? That was also a violation of this idea of an independent judiciary. The chief justice did not speak out then.
It is also clear beyond the current confrontation that this chief justice, appointed by President George W. Bush, clearly a conservative when it comes to Constitutional interpretation, is also very much, perhaps overly, committed to the continuity and the esteem of the United States Supreme Court, which he leads. He is defined as an institutionalist. He is extremely concerned about the institutional reputation of the federal judiciary. There is something genuine to respect in that, but it then raises the question, if the chief justice chose to speak to the president of the United States in this case, when will he speak next? And if he doesn't speak, why? It then puts the chief justice of the United States in the very same kind of political calculation that that independent judiciary was intended to avoid.
But finally on this issue, we also have to understand that there is not only a genuine division over partisan questions, and the partisan identity of nominating presidents in the federal judiciary and on the Supreme Court, there is, as Christians understand, an even deeper divide over how to read the Constitution of the United States and US statutory law. There are those who follow the liberal idea that the Constitution and the law should be understood as an evolving document, a living Constitution the liberals call it, that is to be interpreted in new ways without accountability to the words in the sentences. And then there are the strict constructionists, the originalists, the more conservative judges and justices on the other side who say that the Constitution is the Constitution, the law is the law, and the original intent, the grammatical construction, and the text itself is the authority.
That's a major divide that goes beyond a partisan divide. It explains that major division in the United States today not only amongst judges, but amongst Americans when they are asked what kind of judge should be added to the federal judiciary? What kind of interpretation of the Constitution should rule? Americans are divided over that, and not by accident. It is almost exactly that liberal, conservative divide on moral issues and other major issues in the United States.
The Washington Post headline asked the question, what should we take away from the Trump/Roberts kerfuffle? Now a kerfuffle is a public confrontation that is generally not very consequential. In political terms, this one might not be so consequential, but the issues behind it certainly are. But in any event, this gave The Washington Post the opportunity to use the world kerfuffle in a headline, that also doesn't happen every day.
Custody battle over transgender issues exposes the massive fallout of the moral revolution
Next, a very sad case that also brings in legal issues. This was reported at The Federalist. The headline is this, Mom Dresses Six Year Old Son as Girl, Threatens Dad With Losing His Son for Disagreeing. The subhead of the article, "A Texas custody case splits a six year old child's gender identity in two." Walt Heyer is the author of the article. It begins this way, "Six year old James is caught in a gender identity nightmare. Under his mom's care in Dallas, Texas, James obediently lives as a trans girl named Luna. But given the choice when he's with his dad, he's all boy, his sex at birth. In their divorce proceedings, we are told, the mother has charged the father with child abuse for not affirming James as transgender, has sought restraining orders against him, and is seeking to terminate his parental rights. She is also seeking to require him to pay for the child's visits to a transgender affirming therapist and transgender medical alterations, which may include hormonal sterilization starting at age eight."
Now, you can think about horrifying stories, but it's hard to come up with a headline and with a story more horrifying than this. This takes us into the life of real people, a mother and a father and a six year old boy. It takes us into a situation which is as current as this headline. And it is deeply dark when you come to understand that this headline can now be repeated over and over again. It points not only to that deep divide over worldview in this country, but to the fact that that divide has real life consequences. In this case, it comes down to the basic question, is this child a boy or is this child to be called and considered a girl? Is it child abuse to say that the child is a boy, his sex at birth, or is it child abuse, we should say in the other direction, to manipulate this child in such a way that the child is a pawn in a custody fight and the instrument of turning that child into a pawn is a transgender argument.
The real life circumstances and consequences are so apparent here when we are told, and it is difficult even to say these words, that was is at stake is not only whether or not treatment should start that will sterilize this child as early as age eight, but it's also whether or not the father is to be denied parental rights simply because he is refusing to acknowledge the transgender identity of the child.
The Federalist account goes on to tell us that the transgender identity diagnosis, the gender dysphoria diagnosed of this child, is not even stably defined according to the contemporary ideologies of the sexual revolutionaries. You're talking about a six year old child that seems to have a stable male identity consistent with his biology when he's at his father's house, but takes on a transgender identity only when the child is at his mother's house. As Heyer writes, "James's," that's the six year old boy's, "Precious young life hinges purely on the diagnosis of gender dysphoria by a therapist who wraps herself in rainbow colors, affirms the diagnosis of gender dysphoria and dismisses evidence to the contrary."
One of the points made in this article is that the transgender issue, the gender dysphoria diagnosis, is now using a little boy as a weapon of war. It's a truly scary story. Every single dimension of it. At the base, the story is about the very lie of the transgender revolutionaries who want to tell us that when you're talking about a six year old boy, who at least at times at his mother's house takes on the identity of a girl named Luna, we are told that we are to abandon all concern. We are to throw away all restraint and under the demands of the new sexual revolutionaries, we are to celebrate this transition and declare that it must be so simply because in every case presented along these lines, it must be so.
So the new mandate is the transgender identity wins over everything else including all reason. But there's something else that Christians must note in this story, and that is the fact that this controversy is taking place specifically in the context of the breakdown of a marriage. It is taking place over debates, and over controversies, over contested claims, in a divorce hearing coming down to the issue of the custody of the child. That is not accidental. And that's where Christians have to understand that when we caved to the divorce revolution decades ago, we were setting the stage for the transgender and the larger moral revolution, which is taking place now.
That's an argument I sought to make chapter after chapter in my book, We Cannot Be Silent. And we have to understand that once you enter divorce into this equation, and all that comes with divorce, in a contested divorce, over child custody, then this kind of issue becomes not only possible, but inevitable. The eventual cultural and moral fallout from the divorce revolution comes down to the fact that we can now see and expect in courtroom after courtroom exactly the kind of torturous case that is described here in this story from The Federalist. This takes the word tragedy to a whole new level.
After journey of 300 million miles, NASA’s latest Mars vehicle lands safely. What does this say about us as a species?
But finally, on a happier note, tears of joy erupted earlier this week in Pasadena, California at the Jet Propulsion Laboratory as NASA's latest experimental vehicle to Mars landed successfully, and almost immediately began to send back beautiful photographic images. As Kenneth Chang reported for the Times, "Cheers erupted on Monday at the Jet Propulsion Laboratory when Insight sent back acknowledgement of its safe arrival on Mars that was the end of a journey of more than six months and 300 million miles."
Just consider that for a moment, 300 million miles. Only in recent generations of human experience is it even plausible to think of 300 million miles, much less to think that human beings would be able to launch a rocket that included a space vehicle that could correctly be directed in such a way that it would successfully land on Mars six months later after 300 million miles.
Why was this vehicle sent? Well, it's in order to trace the history of Mars according to modern astronomy, and to seek to do so by measuring tremors. You might call them earthquakes on Mars, but that would be wrong because earthquakes can take place only on Earth. If you're going to call them quakes, they would have to be marsquakes. But just consider what this says about us as a species. We have become a people who can successfully send a vehicle to Mars. But even as we can send the Insight to Mars, we are on Earth, tearing up marriage. As Christians understand, that's not a fair exchange. This cannot rightly be described as progress.