Thursday, September 10, 2020

Part I

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President Trump Refreshes List of Potential Supreme Court Nominees: Why Is This Kind of List Only Likely on One Side of the Political Divide?

The federal courts have been at the center of conservative concern in the United States for well over half a century. We can understand why. Over the course of the last, say, 50 or even 70 years, the federal courts have usurped the political process. What do we mean by that? We mean that the courts have moved into areas in which they are basically legislating. You have judges acting as legislators and in ways that have served the progressivist agenda in the United States.

Just consider the issue of abortion. You go back to 1973 and the Roe V. Wade decision. That was handed down there in the early ’70s when it was not even imaginable that the United States Congress would pass legislation that would have legalized abortion in all 50 states. There wasn’t the political momentum, but the court stepped in and became an engine for the morally progressive side of the American cultural equation, and on case after case on issue after issue, the courts leaned the country to the left.

Now, conservatives bore a bit of responsibility for that fact because you had conservative presidents who were frankly delinquent in their responsibility when it came to the fact that the president has the sole constitutional authority to appoint federal judges all the way from district courts to the Supreme Court of the United States. But especially in the second half of the 20th century, you had Republican presidents elected as conservatives on the political spectrum to allow local or state-based political authorities to have undue influence, basically suggesting the nomination of cronies or people they thought were safe and mainstream. But you’ll notice that that argument is also problematic because the mainstream was moving left. If you have the left wing increasingly in control, whatever you call the mainstream is moving along with the left to the left.

The second big problem was the fact that even when you had conservative presidents who appointed judges and justices they believe to be conservative, once on the courts, many of those judges and justices turned out not to be conservative at all. Now, the reason for that was also important, and that is that you had a situation in which these judges did not have to declare themselves at any point in their previous experience on issues, including the most fundamental issue of how to interpret the constitution of the United States. By the time you get to the 1980s and 1990s, conservatives have figured out they had to have a better system. It wasn’t doing any good to elect conservative presidents if those presidents appointed judges who turned out not to be conservative.

Now, this is never an exact science, but a giant step forward was made when you had the development of a conservative legal intelligentsia represented in many of the law schools, including the most prestigious law schools of the United States. You had groups such as the Federalist Society establishing chapters in law schools such as Harvard and Yale. You could go down the list. When you look at most of the conservative appointees to the United States Supreme Court over the course of the last several decades, they have either been members of the Federalist Society or actively involved with and influenced by the society.

Now, what was the big change? The big change came in 2016. As a matter of surprise to both sides of the political equation, the then candidate Donald Trump told voters that he would announce in advance a list of candidates for the federal judiciary. Most importantly, candidates for the Supreme Court of the United States that had been vetted before they qualified to be on his list. So back in 2016, then candidate Trump released this list. From that list, he has drawn several candidates, including two who now sit on the United States Supreme Court.

Just yesterday, President Trump through the White House released another list of twenty to be added to those who were already on the list from 2016, and this amounts to a major development in the 2020 presidential campaign. Again, we have to see this in a couple of different dimensions. One is what President Trump did. President Trump, in releasing this list, made very clear, a compact, a contract, a promise to those who would vote for him saying, “If you vote for me, this is the kind of federal judge, this is the kind of Supreme Court justice you are going to get.”

Now, there are huge differences between 2016 and 2020. Most importantly, voters going to the polls in 2020 know exactly what President Trump did for four years as president of the United States, the kind of appointments that he has made. Now, conservatives as well as liberals with their respective issues are always going to be sometimes disappointed in a judge or a justice. It’s a human equation after all, but conservatives have much to celebrate in the appointment of justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court of the United States.

This list, now supplemented with 20 new names, gives voters a very clear idea of the kind of justice or judge that President Trump would nominate, and it’s not just two Supreme Court justices over the course of the Trump administration thus far. It is also 146 district court judges, 53 federal appellate court judges, and then the two justices of the United States Supreme Court. That amounts to more than 200 successful judicial nominations and confirmations to the federal courts.

Now, that’s incredibly impressive. As a matter of fact, President Trump is on track if he were to serve two terms to exceed the president of the United States who thus far has made the most judicial nominations. That would have been Ronald Reagan, elected president in 1980 and serving two terms. The names added to the list by President Trump yesterday include eight appellate court justices. That’s the level of the courts just under the Supreme Court of the United States, as well as figures not currently serving as judges or justices, but who have had experience most importantly clerking for one of the sitting justices. This would include Kentucky Attorney General Daniel Cameron.

But in addition, three sitting United States senators, all Republicans, were on the list, Tom Cotton of Arkansas, Ted Cruz of Texas, and Josh Hawley of Missouri. Two of those senators, Ted Cruz and Josh Hawley, had served as attorney general of their own state, respectively, Texas, and Missouri. Two former United States solicitors general were on the list, Paul Clement and Noel Francisco. Both of them are very well known in conservative legal circles. There were others, including United States Ambassador to Mexico, Christopher Landau. You could go down the list.

The point is this. There is a list. The list is public, and the list is there for all to see. The list actually is trusted because President Trump did exactly what he said he would do with the list in 2016, and that’s how he’s operated for the last four years. But that gets us to the second dimension. The first dimension is what it means that President Trump has released such a list. The second dimension is what it means that former Vice President Joe Biden, the democratic nominee, will almost assuredly not release such a list.

Now, does that mean that Vice President Biden and the Democrats are taking the courts less seriously than the Republicans? No, that’s not what it means. What it does mean is that on the conservative side, there is a basically agreed-upon profile for a federal judge that conservatives are looking for. This brings up the words such as originalism and textualism, strict constructionism. To make very clear, it has to do with how the constitution is read. All of that is in response to the liberal argument for how the constitution is to be read, and that goes back to the early decades of the 20th century when progresses began to argue that the constitution should not be interpreted just on the basis of its words and sentences, propositions, syntax, and grammar, that is the text. But rather, the constitution was to be understood as a living document that left the people alive at any given time the right to basically make the constitution mean whatever they want it to mean.

That’s how liberals on the court were able to push through court decisions on issues such as, say, even contraception or abortion, not to mention more recently, same sex marriage when none of those issues is addressed at all within the text of the constitution of the United States because, again, they argued it’s a living document. The bottom line is though, if it’s a living document, it can be interpreted to say whatever any judge at any time wants it to say, but that still doesn’t exactly answer the question. If you’re looking at two rival arguments, why wouldn’t the democratic nominee? Especially given the public attention to this list offered by President Trump back in 2016 as a candidate and now running for reelection, why wouldn’t the Democrats release such a list?

It’s because on the liberal side, there is a less unified understanding of the profile of a judge that is desired. This gets to the fact that the left is absolutely committed to this progressivist idea, the Living Constitution, but the party might well be far more committed even above that to identity politics and intersectionality. Meaning, the kind of assurance is likely to be given by Joe Biden don’t have much to do with interpreting the constitution on the left. They don’t even think they really have to deal with that. That’s why going back to 2016, the democratic nominee, Hillary Clinton, just said boldly, clearly, candidly, she would only appoint justices who would uphold Roe V. Wade, not even the fig leaf of an argument for judicial and constitutional interpretation. But the fact is you’re likely to have assurances from Joe Biden about the fact that he would appoint this kind of judge, such as the fact that he has already made the commitment that in his first nomination to the Supreme Court, he would name not only a woman as judge, but an African-American woman.

So there you see the way it works. Two different ways of looking at the responsibility of the president to make appointments to the court, but here’s something we might call actually the third dimension on this issue. President Trump back in 2016, as candidate and now as president running for reelection, when he puts that list of names before voters has reason to believe that voters will find the confidence in those names. The exact opposite is the reality that the Democratic ticket understands. If they release names, they’re likely to be picked apart indefinitely. Truth be known, once those judges became identified, they might be more likely to scare Americans than to reassure them. But before we leave this issue, let me point to the fact that any analysis of the federal courts understands that the next four to eight years will be absolutely crucial to setting the direction of the courts for a generation or more.

Now, why would I say that? It’s because it’s a simple matter of math. You can look at all the hundreds of federal judiciary positions and look at the age of those in those positions, and you can almost count on the fact that whoever is president for the next four to eight years will have an extraordinary impact on the courts for a generation to come, perhaps even more because after all, these judicial appointments are lifetime appointments. A president’s term is only four years, and it can be extended only four more years. But a president’s appointments to the federal courts last far longer. Generations, not just years.

Part II

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And the Oscar Goes To . . . Inclusion: Film Academy Reveals Its Vision for the Future of Hollywood Blockbusters

But next, speaking of judges and judging, let’s move to an entirely different dimension of the culture. Let’s leave Washington and go to Hollywood because big news came out of Hollywood over the course of the last several days. A lot of it coming just yesterday, telling us that the Academy of Motion Picture Arts and Sciences, known more casually as the Motion Picture Academy, has put out a list of new concerns to be included under the theme of inclusion and diversity in the Academy Awards, most importantly, the best picture category of the Academy Awards beginning in 2024.

Josh Rottenberg, reporting for The Los Angeles Times, wrote yesterday, “And the Oscar goes to inclusion. In the latest step in its ongoing effort to boost diversity both within its own ranks and across the film industry, on Tuesday the film academy announced new representation standards for films to be eligible to compete for best picture.” That was on Tuesday. A lot of discussion. Yesterday, in the mainstream media, The Los Angeles Times article reminds us “Previously, the only standards to qualify for best picture involved a film’s running time. It had to be more than 40 minutes, and specifics about how, where, and when it’s screened in a public venue.” The new standards will go into effect for the 96th Oscars in 2024.

So what exactly is going on here? What do we say about the Oscars, and what does this new rubric for the Oscars tell us about American society? Well, there’s no surprise that issues of inclusivity, diversity, and that means racial diversity, ethnic diversity, but also, this document makes very clear LGBTQ diversity and inclusion. These are big in the culture and because Hollywood is, in so many ways, the culture, Hollywood is pushing it. One of the things we understand is that the engines of cultural production in the United States tend to be far to the left of the American people. That means much of the media. It means almost all of higher education, particularly in the prestige institutions of higher education, and it means Hollywood. Boy, does it mean Hollywood.

But Hollywood has a big issue, a big problem when it comes to the ethos of diversity and inclusion, and that is its own film library. Even the list of Oscar winners going back year after year and decade after decade. Even the films that decades later that have been Oscar winners that are revived and celebrated all over again. The fact is the biggest problem with the Motion Picture Academy is the fact that it’s been around long enough to be its own problem, which means that you have groups such as the Motion Picture Academy now going to whatever links appear to be publicly and politically necessary to prove just how committed they are to inclusion.

But here’s what Christians need to understand that even as we think about diversity and inclusion, those are not just at face value illegitimate goals. But when you have them as the driving engines of decision making or in this case, of adjudicating films, you’re going to set a standard for the entire society. Just to state the obvious here, you have a lot of filmmakers who are actually making films for the academy because even more than they want public acclaim, even more than they want the public to buy tickets to their movies or to see them, they want the acclaim of their peers and the elites in the academy.

As a matter of fact, it has been something of an adage for decades now that if your film is liked by the public, it’s going to be hated by the elite judges. That’s not absolutely the case, but arguably, it’s close to the case. According to the newly released inclusion standards, a film must meet two of four inclusion standards in order to qualify for competition as best picture. The first of these standards has to do with screen representation, themes, and narratives. But if it was two out of four to begin with, it’s one out of three.

Now, how would you meet this standard? Well, there are three different issues. Listen to them. First, at least one of the lead actors or significant supporting actors is from an underrepresented racial or ethnic group. This would include Asian, Hispanic, Latinx, Black African-American, indigenous Native American, Alaskan Native, Middle Eastern, North African, Native Hawaiian or other Pacific Islander, or the final category here is “other underrepresented race or ethnicity.” I promise you, I’m not making this up.

The second issue is general ensemble cast, and the standard comes down to the fact that at least 30% of all actors in secondary and more minor roles are from at least two of the following underrepresented groups: women, racial or ethnic group, LGBTQ+, or people with cognitive or physical disabilities, or who are deaf or hard of hearing. The third, main storyline subject matter. “The main storyline’s theme or narrative of the film centered on an underrepresented group that would include women, racial or ethnic group, LGBTQ+, or people with cognitive or physical disabilities, or who are deaf or hard of hearing.”

The other standards basically repeat the same categories: women, racial or ethnic group, LGBTQ+, or people with cognitive or physical disabilities, or who are deaf or hard of hearing. Again and again, right down to those who fit the category of cinematographer, composer, costume designer, director, editor, hairstylist, makeup artist, producer, production designer, set decorator, sound/VFX supervisor, writer. Well, the list goes on. You get the point.

Now, again, taken at face value, there is nothing wrong with being concerned about diversity and inclusion. But when they become, as I said, the driving issues and especially now with such a political and ideological edge, well, it just might be that many of the motion pictures that were made in the past couldn’t even be made today because if they’re not going to play at the film academy, they are, in many cases, not likely to be made. The investors aren’t going to put the money behind them. Producers aren’t going to produce them. Directors aren’t going to direct them, and the movie houses aren’t going to release them.

Just think about one of my favorite movies from decades ago. That would be the winner of the 1981 Oscar for best picture, the movie Chariots of Fire. The movie was about the 1924 Olympics, and the Christian runner, Eric Liddell, and a Jewish runner, Harold Abrahams, and a certain form of character and heroism that emerged from both Liddell and Abrahams each in his own way in the course of the 1924 Olympics. But as you think about the stars and the ensemble for the 1981 film Chariots of Fire, you have to understand that the entire story is basically told with an intense focus on members of the 1924 British track and field Olympic team.

Now, that film was not only a commercial success unexpectedly so. It was also a critical success unexpectedly so, winning the 1981 Oscar for best picture, and the vast adulation and continuing interest all the way down to the year 2020. It’s an incredible story. It’s incredibly well told. But according to these standards, that film would not even qualify under the best picture category for the Oscars, and I’m going to argue straightforwardly that’s not only ideologically wrong. It is also a great cultural loss, but this also means you have to understand that that kind of story really can’t be told, not authentically anymore, not if the academy is going to set the rules for best picture this way because just consider those issues of inclusion. The most interesting one, no doubt you heard it, was LGBTQ. So perhaps you could make that movie if one of the main characters, either the lead or a key supporting actor or actress is presented as LGBTQ.

I’m going to make a prediction right now. You see an awful lot of invented history rather than any kind of actual biography or historical representation in the film academy right now. You see it because you fictionalize based upon some historic event so that you can put in the kind of inclusion category figures who are demanded now by these new rules. All of a sudden, an openly gay or LGBTQ character emerges where, of course, there would have been historically no such character declaring that kind of identity at that time.

The academy announced that it is also going to put a cap on its own board to 12 years of service and create an office of representation, inclusion, and equity that’s going to oversee the entire effort known as Aperture 2025 and is going to work with the academy “to ensure accountability throughout the organization.” Christians looking at this should keep in mind that Hollywood is not peripheral to our culture and has an outsize influence on our culture, telling the stories, the narratives that become a part of the culture itself. Hollywood not only entertains, Hollywood teaches, and it shapes morally. Keep that very clearly in mind. Hollywood has announced that through the film academy, it is going to shape a new vision of reality, and perhaps to its credit, it tells us right up front what that vision is going to be like.

Part III

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Sign of the Times: Alex Morse Lost the Election, But He May Have Won the Argument

But finally, today on The Briefing, there was incredible attention, understandably so, given to the Massachusetts Democratic senatorial primary just days ago when incumbent United States democratic Senator Edward Markey, age 74, defeated the insurgent Joe Kennedy, congressman, age 39. The first time that a Kennedy, anyone with a Kennedy last name had lost such a primary battle in the history of recent Massachusetts politics going all the way back to the 1950s. But there was another primary held in Massachusetts, and that has to do with one of the congressional seats there in Massachusetts. In this case, the incumbent democratic representative, Richard E. Neal, defeated the insurgent candidate by the name of Alex Morse. But there’s more to this story. Let’s take a closer look.

The New York Times devoted an entire half-page article to him with the headline, “Sex, Power, and Politics Collided for a Candidate Vindicated After Claims.” Now, the claims that were made against Mr. Morse had to do with sexual misconduct during the time he was teaching at the University of Massachusetts, Amherst. Mr. Morse is gay, and the complaints had been that he had acted in a predatory way upon young male students at the University of Amherst in his classes. He denied the accusations categorically, and The New York Times article, again, in the headline says that he was vindicated after the claims were made. But what’s more interesting is what was said about his candidacy at this particular American moment.

One observer looking at the race said, “There is a very sad, well-documented history of the dating lives of L.G.B.T.Q. people being used against them. And there are potential L.G.B.T.Q. candidates who look at what Alex Morse has gone through and decided there is a price, a risk that they don’t want to put themselves through.” So it came down to rival claims this is just the man’s dating life, or it comes down to accusations of sexual misconduct. Which was it?

Well, The New York Times declared the candidate to have been vindicated. But later in the article, we read this, “Mr. Morse said the situation left him deeply conflicted — as someone who was wrongly accused but who believes victims should not feel intimidated to speak out, and as a gay man worried about enduring homophobia in American society.” Morse then said himself, “The expectation shouldn’t be that we have to be in monogamous, heteronormative relationships before we enter public life.”

Well, that’s just there basically toward the end of the article, but anyone looking at this with a moral point of view sees that as a thunderclap. It’s an announcement of the upending of an entire moral order. No more expectation, he says, that anyone looking at candidates running for office should expect in the background to find only monogamous heteronormative relationships before entrance into public life.

If you’re trying to understand what’s been going on in American society in this moral transformation over just the last several decades, imagine going back to, oh, say just about any voter in the 1960, or the 1972, or the 2000 presidential election and saying, “Do you think that it’s fair to look at the candidates and expect in the background a monogamous heteronormative pattern of relationships?” We are seriously being told that that is now so outdated that the very idea needs to be castigated, found revulsive, and cast aside. Another way of looking at it is to say that representative Richard E. Neal won the primary race, but Alex Morse, given the direction of the culture, may well have won the argument.