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The Courts Are Not a Noble and Purifying Refuge

The danger of pretending there’s an impenetrable wall between politics and the law.

Congressional Republicans are looking for an off-ramp. Having given aid and comfort to a reality show presidency for just more than a year, the smart ones are beginning to figure out that voters are on to them. This is particularly the case for the large crop of elected Republicans who have historically cast themselves as the protectors and defenders of the rule of law and the primacy of the American justice system. Long after it became openly embarrassing to claim both a love of the law and a love for Donald Trump, Republican representatives have attempted to split the baby with claims that they love the Constitution but hate the free press, or that they love the courts but hate judges, or that they love the Mueller investigation but hate the FBI and the Department of Justice.

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There are a few exit strategies for those Republicans who’ve decided their best option is to exit Congress en masse. There is the Gutless Retirement, wherein the elected official deplores the ugliness of public life, then grabs a life vest and jumps without actually doing anything to stop Trump or Trumpism on the way out. There is the Noble Speech, followed by a similar absence of word or action or attempt to legislate a reversal of the current insanity. And we are starting to see what may be a third exit ramp: a flight back to the warm embrace of the Law, under the pretense that politics and law are binary and severable enterprises, and that having corroded the former beyond salvaging, the latter is a noble and purifying refuge.

Consider the case of Trey Gowdy, the South Carolina Republican who was elected to the House of Representatives in 2010. Gowdy quickly gained national notoriety for tireless and fruitless investigations of the Obama administration on the House Oversight Committee and then as the chairman of the House Select Committee on Benghazi, a group that turned up nothing many, many times over, but kept him and his work in the spotlight.

Gowdy announced last week that he would not be seeking re-election, issuing a statement that he would not be “seeking any other political or elected office; instead I will be returning to the justice system.” Rumors that he had his eye on a vacant seat at the 4th U.S. Circuit Court of Appeals were quickly squelched, but the 53-year-old congressman has made no secret of the fact that his heart lies back in the life of the law and not politics. “Whatever skills I may have are better utilized in a courtroom than in Congress, and I enjoy our justice system more than our political system,” Gowdy said in his statement. Gowdy amplified that sentiment on CBS’ Face the Nation on Sunday, downgrading his career as a politician to failed hobby status: “I enjoy the justice system more. … I enjoy the pursuit of fairness as a virtue, and I’m just more comfortable in that system. I was a pretty good prosecutor, I think, but I’ve been a pretty lousy politician.”

Stop and read those words again. The man who dedicated his political career (and our tax dollars) to fruitless investigations of his enemies is claiming that he was a lousy politician and wants to return to the cleansing pursuit of “justice.” The man who was, by his own admission “pretty integrally involved in the drafting” and the release of the Nunes memo—a document that contains more smoke than gun, and is increasingly being seen by both sides as a partisan misreading of the warrant process before the FISA court—wants to get back to his roots in doing justice. It beggars belief.

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How did we get to a place where elected officials and partisans could breezily claim there is some sort of invisible and impenetrable wall between politics and law? That there is an accepted dialectic in which the making of law is a filthy and lawless enterprise while the “doing of justice” is a sacred calling, removed from all politics and bias?

At least some of the blame can be leveled at the poster-board myth of conservative judicial process—the one that claims that being a judge is a matter of calling mechanical balls and strikes, and that anyone who can read what the framers wrote and what the legislature drafted is qualified to be a jurist, regardless of temperament, character, or background. If the parade of largely goofy and unqualified Trump judicial nominees—especially to the lower courts—has taught us anything, it’s that Trump’s judicial vetting machinery is fully committed to the principle that legal experience no longer matters to the business of judging, but also that a lengthy career in partisan politics doesn’t matter either.

This is a deeply cynical read on what judges do when they “call balls and strikes,” but it’s also the central talking point at the drive-by confirmation hearings, in which one nominee after the next insists his lengthy and indisputable history of partisan activism, blogging, and openly political work is irrelevant because when he dons a black robe he will be transformed into a neutral umpire making easy calls.

To be sure, nominees named by Democratic and Republican presidents have long sought to argue that they will be different creatures once they’re sworn in as judges. And to be sure, there are judges on every court who engaged in political work before taking the bench. But what Gowdy is trying to say here is profoundly different from a former lawyer for the ACLU or the Heritage Foundation would assert. He isn’t saying, “I will put my advocacy and politics aside going forward.” He is saying that politics and lawmaking and congressional oversight are all dirty and that he will seek refuge in a magical unicorn courtroom that is untethered from all those things. On Sunday, he tried to say that law is about “fairness” while politics is “just about winning.” And no matter what job you seek back in the world of the courtroom, this deeply jaundiced view of the political process necessarily infects everything you do.

That binary view has to be wrong. It’s not just wrong because judges are literally tasked with deciding who wins and loses. It’s not just wrong because judges have to look at legislatures and legislators as serious enterprises to be credited with serious purposes. It’s also wrong because politics and justice are inextricably linked, and congressional oversight and investigations are as much about process and fact-finding as legal proceedings are. It’s unconscionable to assert that political systems have been degraded and corroded by partisans, so let’s throw all the partisans into the court system to be cleansed of their prior sins. The inevitable result will be the degradation and corrosion of the legal system.
The law is about politics, and politics is about justice.

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I use the word sins advisedly here. The image of the courts and the law as a source of purification and penance is a tempting one. But those seeking absolution for their role in undermining the Constitution and the rule of law would do better to talk to their religious confessors or their shrinks than to repurpose the myth of the courts as America’s constitutional mikveh or baptismal bath. Character matters in the law. Partisan history matters in the law. Cynicism about politics matters in the law. The off-ramp from politics, especially politics as practiced in defense of Donald Trump, should not come via the courts. The off-ramp from corrosive and defeatist politics should be better politics, a project nobody in the GOP appears to have any interest in pursuing.

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