Why I’m not impressed by “conservative judges”

When people summarize the first year of the Trump administration, they often focus on the appointment of lots of “conservative judges”.  Oddly, this is often considered a praiseworthy achievement, which is a sad commentary on our society.  I’d prefer a country where presidents were praised for appointing lots of “good judges”.

There are many definitions of conservative judges, but here’s mine.  Consider a closely fought election, such as 2000.  If the courts end up ruling on the outcome, then a conservative judge will support the conservative candidate, regardless of the facts of the case, and a liberal judge will support the liberal candidate, regardless of the facts of the case.  In a well functioning country, the political preferences of the judges would not factor into their decisions.  We’d have good judges, who looked at the specific facts of the case.

Another possible definition of conservative judges is one that views legislation passed by liberals as unconstitutional and legislation passed by conservatives as constitutional.

I have no opinion on whether the actual 2000 presidential election case was correctly decided.  But when people tell me I should support a judge because he is conservative, they are wasting their time.  In my view, the country would have been better off if Al Gore had won the 2000 election.  I certainly don’t want judges who will favor Trump in a court case (nor ones biased against him.)

I’m a libertarian, but I also don’t favor the appointment of libertarian judges.  I favor good judges.

PS.  If you tell me that my views are hopelessly utopian, that impartiality is impossible, that the rule of law is a myth, and that judges will inevitably have biases, then I still won’t favor conservative judges, I’ll favor utilitarian judges.  I.e. someone like Posner.

PPS. Note that because I’m a “rules utilitarian”, I don’t actually favor utilitarian judges.

PPPS.  And now they’ve politicized Christmas.  As our President tries to turn Christmas into a political football by promoting it, China and India wage war on the holiday.  Sad.  In retrospect, it’s now possible to clearly see Trump as just one aspect of the global rise of nationalism that accelerated around 2015.  It’s pointless to try to explain Trump; we should be trying to explain the global surge in right wing nationalism.  If your explanation for Trump doesn’t apply to India, China and Poland, it’s worthless.  That means your explanation should not include phrases such as “West Virginia” or “illegal immigrants”.  If it does, you are missing the big picture.


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67 Responses to “Why I’m not impressed by “conservative judges””

  1. Gravatar of Philo Philo
    28. December 2017 at 10:28

    “And now they’ve politicized Christmas.” “Now”? Just when do you think this happened? Trump didn’t start it, he merely exploited it.

  2. Gravatar of bill bill
    28. December 2017 at 11:27

    I’m 100% with you about good judges.

    Another explanation re the PPPS. Small sample size. I don’t know enough about the other countries, but the US election was very close, so most of the things most people read into the result would be the exact opposite but for a coin flip, so-to-speak.

  3. Gravatar of Matt mcosker Matt mcosker
    28. December 2017 at 11:27

    IMO the global surge in nationalism is easy to explain, many feel economically left behind since 2008, and right or wrong, perceptions about unfettered immigration, which may just be where blame is being placed for the economic aspect. Trump played to both of these and snuck into the white house. I travel all over the US every week and I see these feelings everywhere.

  4. Gravatar of Mark Mark
    28. December 2017 at 11:38

    Regarding judges, you’re just making an obvious straw man argument. First of all, most people defending Trump’s judicial appointment pretty clearly say they are *good* judges, not merely conservative ones, though they tend to think the two strongly overlap. More over, in judicial discussions, ‘conservative’ means a tendency toward originalism and textualism and judicial restraint as opposed to activism, as well as respect for property rights. These are things conservatives (and libertarians usually) consider to be ‘good.’ When we talk about conservative vs. progressive judges, it is not primarily referring to policy but judicial philosophy. I’m fairly certain you must already know this.

    And Philo is clearly right about Christmas. I’d say you’re engaging in base tribalism. “My enemy started it; my side is just reacting to him.”

    Lastly, in India, the rise of populist nationalism was largely caused by the rampant corruption and shameless nepotism of the Congress Party (which is still ruled by a Gandhi). In Europe, EU overreach and the threat to cultural identity posed by immigration of very different cultures seem to be the drivers. Not all of these phenomena necessarily have the same global cause.

  5. Gravatar of E. Harding E. Harding
    28. December 2017 at 12:05

    “If your explanation for Trump doesn’t apply to India, China and Poland, it’s worthless.”
    Disagree entirely. Trump would have easily won any Republican primary he ran in (except 2004) from 1996 onwards. Trump won because he was Trump. Nehlen lost. Ward lost. Duke lost. Corey Stewart lost.

    That means your explanation should not include phrases such as “West Virginia” or “illegal immigrants”. If it does, you are missing the big picture.

    Yes; it definitely should not include West Virginia (politically one of the least important states in the country). It probably should include “illegal immigrants”, though, since part of Trump’s appeal was his support for sending them back.

    Your views are hopelessly utopian, impartiality is impossible, the rule of law is a myth, and judges will inevitably have biases. However, by any objective standard (as if that matters) Trump’s appointees are far more “good”/”impartial” than any liberal ones. Of course, though I agree with this in theory, in practice, the impartiality of Trump’s judges is kinda stupid. The liberals have destroyed the Constitution as it is written. I am tired of this defensive-crouch conservatism (reading the Constitution as it was originally meant). I want real fighters like those Supreme Court judges of the Gilded Age, who will legislate from the bench how I want. In war, victory matters more than propriety. And the judiciary is just politics, which is just war by other means.

  6. Gravatar of Scott H. Scott H.
    28. December 2017 at 12:58

    Is your problem that Trump isn’t appointing “good judges”, or is it that people are trying to label “good judges” as “conservative judges”?

  7. Gravatar of John John
    28. December 2017 at 12:59

    Why are you convinced President Gore > President Bush? More or less the same policies would have been followed. The Iraq war would have been delayed a few months. The recession still occurs in 2008 (since the President doesn’t matter). The big picture remains identical.

  8. Gravatar of Christian List Christian List
    28. December 2017 at 13:08


    If you tell me that my views are hopelessly utopian, that impartiality is impossible, that the rule of law is a myth, and that judges will inevitably have biases,…

    That’s indeed what we would tell you. Big man-child.

    A not so favorable description of “liberal” judges would be that they are lawless in the sense that they pay very little attention to legal rules, statutes, and constitutional provisions. They just do what they think is a resolution – according to their ideology. Then they look if a Supreme Court precedent or some other legal obstacle stays in the way of ruling in favor of their resolution. And even if there is a legal obstacle they just go around it.

    It’s very telling that you mentioned Posner. That says it all. He must be the most liberal judge ever, in the sense that he doesn’t care about legal rules, statutes, and constitutional provisions at all.

  9. Gravatar of Randomize Randomize
    28. December 2017 at 14:11

    Poverty breeds hate, fear, and extremism. I place the blame for the rise of right-wing nationalism squarely at the feet of the ECB and, to a lesser extent, the FED. They kept millions and millions of people unemployed for the sake of their own interests, ideologies, and cowardice.

    NGDP ~ NGDI = Average Wages x Hours worked. With wages sticky due to slack in the labor market, raising NGDI would have primarily increased hours worked and reduced under/unemployment. This blog shouted it from the rooftops but how many world-class economists did not and let us wallow in hard times?

  10. Gravatar of E. Harding E. Harding
    28. December 2017 at 14:12

    Christian, solid post.

  11. Gravatar of ssumner ssumner
    28. December 2017 at 14:29

    Matt, You said:

    “IMO the global surge in nationalism is easy to explain, many feel economically left behind since 2008, and right or wrong, perceptions about unfettered immigration,”

    Yes, most people in China and Poland feel left behind since 2008, and threatened by immigration. What planet are you living on?

    Mark, You said:

    “First of all, most people defending Trump’s judicial appointment pretty clearly say they are *good* judges”

    No, that is not what “most people” are doing. Most people have no idea whether 50 judges recommended by the Federalist Society and appointed by Trump are good judges or bad judges. They like them because they think they’ll support conservative policies. Was Jeff Sessions a “good judge”? Or was he a judge with a right wing agenda?

    I wasn’t born yesterday.

    Scott H. Read the post.

    Christian, So you are saying that it’s utopian to believe that judges should be impartial, and then you tell me that the definition of a liberal judge is that they are not impartial.

    Ergo, all judges are liberal.

    Do you have any idea how idiotic your comments are?

    And Harding agrees. Why am I not surprised?

  12. Gravatar of Lorenzo from Oz Lorenzo from Oz
    28. December 2017 at 14:51

    What does one mean by “conservative judge”. This 2010 Atlantic article wrestles with the difficulties of the term.

    https://www.theatlantic.com/politics/archive/2010/04/what-is-a-conservative-judge/38786/

  13. Gravatar of Luis Pedro Coelho Luis Pedro Coelho
    28. December 2017 at 14:53

    In the American system, big legal decisions are, effectively, legislative and not just strictly interpretative decisions.

    Perhaps an alternative system would be favorable (this is a longer discussion), but this is the system as-is. Thus, it does make sense to talk about liberal/conservative judges as they are legislators.

    (In the last few years, I’ve noticed more and more big legal decisions in the EU who have some of the same character: they are legislative, not purely legal.)

  14. Gravatar of Philip Crawford Philip Crawford
    28. December 2017 at 16:05

    In your hometown, my sister Susan is running for judge right now and the “conservative/liberal” confusion abounds with people I know. Susan would like everyone to think in terms of good/qualified/experienced while the other candidate has donated to left leaning candidates over the past 3 decades. It’ll be an interesting race.

    https://www.crawford4judge.com/about/

  15. Gravatar of E. Harding E. Harding
    28. December 2017 at 16:31

    “Ergo, all judges are liberal.”

    Sadly, yes (at least, for SCOTUS). Of the nine judges on the Supreme court, only Clarence Thomas comes close to being a conservative, and he still has plenty of liberal elements in his thinking.

  16. Gravatar of Benjamin Cole Benjamin Cole
    28. December 2017 at 16:36

    Yes on good judges.

    Nationalism? I suppose we could argue again what is the meaning of “nationalism” as we could argue what is the meaning of “conservative.”

    Is it “nationalist” to believe occupations in Afghanistan Iraq and Vietnam or a globalized hyper-mobilized professional military are not in the national interest?

    That rule of law should apply to immigration as well?

    To conclude that chronic and large current account trade deficits are not benefiting US residents?

    Call me “nationalist.”

    Is someone who supports a national central-bank as opposed to a global central bank a “nationalist”?

  17. Gravatar of Christian List Christian List
    28. December 2017 at 17:31

    Scott,

    Did you even read my post? You seem to have absolutely zero reading comprehension. Pathetic.

  18. Gravatar of E. Harding E. Harding
    28. December 2017 at 17:36

    Perfect response, Christian.

  19. Gravatar of Carl Carl
    28. December 2017 at 20:09

    I would attribute the rise in nationalism as a response to the decline of American hard and soft power. America, though flawed, represented and promoted the (classical) liberal order. To some extent we used force to preserve that order and to some extent others joined because they wanted to be happy and rich and free like we seemed. We can’t push China around. We’ve exhausted ourselves pushing islamists around. We are in debt and we don’t seem as happy as we used to.

    The powers that are rising to challenge the old order are, at this point, either nationalistic such as China and Russia, or reactionary such as Iran and ISIS. And there simply isn’t a viable alternative international order to the one that is losing ground.

    That doesn’t mean the nationalists and reactionaries win the match in the end. They just have the momentum.

  20. Gravatar of Student Student
    28. December 2017 at 20:32

    1.) IMO you are clearly exactly right in your point about judges. Problem is politicians appoint and confirm judges in our system. So it’s a partisan thing. It’s just the way it is. And so many people are so partisan they have a hard time even believing there are people that actually attempt (it’s possible they often fail) to make decisions on a case by case basis… based on their read of events and facts.

    2.) right wing nationalism is a function of large spikes in mass migration. Take a look at history, whenever there are large spikes in movements of people, there is a counter reaction (which per at least the last century or two has been occuring via right wing nationalism, though it could be any wing nationalism). How widespread the reaction is is rather complex but almost certainly has to do with whether or not the gains from growth are being broadly shared or not.

  21. Gravatar of Jaap Jaap
    28. December 2017 at 23:58

    Well, I would place the rise of nationalism a lot earlier. In the Netherlands we´ve had already more nationalism since the early 2000´s. The easy scapegoats (and logical consequence of 9/11) are the muslims.
    However, it could also be a pushback against the globalisation that definitely dominated the world since the fall of the Berlin Wall and USSR. Just look at where the rightwing parties do well. Not many muslims in Poland (or many towns where rightwing parties did well in Europe).
    Nationalism is almost always fear of the other. Sometimes justified to an extend as a reaction to someone else´s aggression (against Germany WWI and WWII) but lately more as a complacency, a wish for rentiership with the other working for us. We don´t mind the other doing mindless, dangerous or hard work, but don´t touch our easy jobs please!

  22. Gravatar of Matthew D McOsker Matthew D McOsker
    29. December 2017 at 06:40

    Scott, living on planet Earth. I did not know there is arise in far right in China. But many people do feel.left behind in the US, Greece, Spain, England, Portugal. It may not be based in fact, but only perception. How the do you think Trump got elected? And we have seen the same with immigration. May not be based in reality, but it exists.

  23. Gravatar of Matthew D McOsker Matthew D McOsker
    29. December 2017 at 07:02

    Also, the two reasons for the rise in far right nationlism can be mutually exclusive.

  24. Gravatar of bill bill
    29. December 2017 at 07:22

    I think we’re reading way too much into election results and finding trends that are more likely random noise. The election results reflect “public opinion”
    See this link https://www.themoneyillusion.com/?p=30037 on public opinion.

  25. Gravatar of Ol’ George Ol' George
    29. December 2017 at 07:51

    If you start off by assuming humans are interchangeable frictionless spheres, it’s kinda hard to make sense of anything in the world.

    The reality happens to be that humans are tribalistic – and most people are quite fond of the culture the grew up.

    So, for example, when Germany (which has a proven record of trying to erase your culture and language) demands you take in millions of third world scum, it’s pretty hard for the pendulum not to swing violently in the opposite direction.

  26. Gravatar of ssumner ssumner
    29. December 2017 at 08:27

    Everyone, Please try thinking before you comment.

    Carl, You said:

    “we don’t seem as happy as we used to”

    How many Americans do you know personally? How many seem happier than in the past? How many seem less happy than in the past? I’d like specific numbers.

    http://www.rasmussenreports.com/public_content/lifestyle/general_lifestyle/july_2017/americans_are_happier_than_they_have_been_in_years

    Student: You said:

    “right wing nationalism is a function of large spikes in mass migration.”

    There’s been a large spike in migration into India, China and Poland? Who knew?

    How about Italy in the 1920s?

    Jaap, There’s a backlash against globalization in China and India? Who knew?

    Matthew:

    You asked:

    “How the do you think Trump got elected?”

    Umm, but rolling up huge wins in affluent towns like Mission Viejo, where I live?

    Or how about the electoral college, which negates the will of the people?

    And what does any of that have to do with India and China?

    Ol, George, You said:

    “If you start off by assuming humans are interchangeable frictionless spheres, it’s kinda hard to make sense of anything in the world.”

    If you start out your first comment at this blog with a silly, trite generalization, that attacks a straw man and has no bearing on the post that you are supposed to be commenting on, then it makes me not want to read any of your future comments.

  27. Gravatar of Student Student
    29. December 2017 at 08:47

    Scott, mass migrations don’t have to be into China or India or Poland to cause a reaction. Isn’t it possible that migrations set off chain reactions that affect many places?

    Do you think it is a coincidence that we are undergoing one of the largest mass migrations in history (at least in absolute terms) and that there is a rise nationalistic thinking and wall building?

    You don’t think the millions of people wandering out of the Levant across Europe had any impact on Poland?

    Also, while not quite like Europe, India is a top 10 in-migration country and China is seeing a lot of African and Korean immigrants (in addition to the internal flood of rural people to the cities, which while nationals in these places, are often very foreign to the urbanites ethnically, linguistically, and socio-economically.

    To me it’s not a coincidence…. that said, the negative counter reaction is a huge mistake, as it’s always been.

  28. Gravatar of Matthew D McOsker Matthew D McOsker
    29. December 2017 at 09:07

    We operate under an electoral system. Game that and you win. For example: Michigan, Ohio, Pennsylvania Trump used economic and xenophobic messaging to win. Again the threat need not be real, just perceived.

  29. Gravatar of Ol’ George Ol' George
    29. December 2017 at 09:08

    Scott,

    If you can’t see how immigration might lead to a nationalistic (over-)reaction in a place like Poland, then you might want to stick to commenting on football.

  30. Gravatar of Tom Brown Tom Brown
    29. December 2017 at 10:13

    Good post Scott.

  31. Gravatar of ssumner ssumner
    29. December 2017 at 10:14

    Student, You said;

    “Do you think it is a coincidence that we are undergoing one of the largest mass migrations in history (at least in absolute terms) and that there is a rise nationalistic thinking and wall building?”

    Yup, for the reason I explained in this post.

    You said:

    “China is seeing a lot of African and Korean immigrants (in addition to the internal flood of rural people to the cities, which while nationals in these places, are often very foreign to the urbanites ethnically, linguistically, and socio-economically.”

    Nor really. The migrants are overwhelmingly Han, they are simply Han people from the countryside. That has nothing to do with the rise of nationalism in China. How much immigration into India is there, as a share of India’s population. I just don’t see it.

    Ol George, You said:

    “If you can’t see how immigration might lead to a nationalistic (over-)reaction in a place like Poland, then you might want to stick to commenting on football.”

    Oh, I certainly can see how it might have an effect. Why do you keep posting such inane comments? Don’t you want your comments to be taken seriously?

  32. Gravatar of ssumner ssumner
    29. December 2017 at 10:15

    Matthew, I still don’t see what West Virginia has to do with China.

  33. Gravatar of E. Harding E. Harding
    29. December 2017 at 11:12

    Sumner, Matthew didn’t mention West Virginia at all, so stop with your idiotic strawmanning.

  34. Gravatar of E. Harding E. Harding
    29. December 2017 at 11:17

    Frankly, I find my “Trump won because he was Trump” explanation much more obvious and satisfying than quite possibly spurious claims of a “global rise of nationalism that accelerated around 2015”.

  35. Gravatar of Steven Kopits Steven Kopits
    29. December 2017 at 13:49

    By what standard are we to ascertain whether a judge is a ‘good judge’ or not?

    The strict constructionists argue that a proposed law should be judged s closely as possible according to the wording of the Constitution.

    The left has instead chosen the ‘living document’ approach in which the text of the Constitution is more of a suggestion or guideline. This allows the Supreme Court cases to be judged by the mood of the country or the court’s current understanding of social values. In other words, decisions become highly subjective, and it comes down to who holds the votes. The ‘living document’ approach has politicized the court, as it surely would.

    For a very long time, the liberals held the balance of power on the court. That has now shifted to the conservatives, who are only too happy to drive through the barn door which the liberals have left open.

  36. Gravatar of Student Student
    29. December 2017 at 14:52

    If “Trump won because he is Trump” that’s the opposite of satisfying as that would imply Americans voted for narcicism, blow hardism, and bull shitism… that we preferred someone who has no idea what he is talking about just because he thinks he does…

    I don’t think so. He won because Hillary was a toxic candidate, nationalism was on an upswing, an average Joe’s were so sick of getting the shaft that they could drink his BS.

    It still amazes me that the final four of 2016 was Trump, Cruz, Clinton, and Sanders.

    What a shit show 2016 was. Boy I hope this was a one off blip we all look back on with embarrassment 20 years from now.

  37. Gravatar of Student Student
    29. December 2017 at 14:57

    Seriously, if we randomly drew four names from a hat containing adults with IQs of at least 100, would we have had a better selection?

  38. Gravatar of Bob Murphy Bob Murphy
    29. December 2017 at 18:21

    Some people say they support “market monetarism.” Not me. I favor good monetary policy.

  39. Gravatar of E. Harding E. Harding
    29. December 2017 at 18:42

    Great comments, Bob and Kopits.
    @Student
    “nationalism was on an upswing,”
    It was somewhat growing in electoral salience (e.g., Dave Brat won in 2014), but I see no reason to think that this growth was important enough to be relevant in the 2015-16 GOP primary cycle. Republicans’ attitudes toward immigrants were completely unchanged from 2006 to 2016. McCain in 2008 won despite his loose stance on immigration, not because of it. Had Trump ran in 2008, he’d have won the 2008 GOP primary, as well.
    pewresearch.org/fact-tank/2016/04/15/americans-views-of-immigrants-marked-by-widening-partisan-generational-divides/

    “an average Joe’s were so sick of getting the shaft that they could drink his BS.”
    Really? Oil prices had collapsed between 2014 and 2015, thus boosting real wages bigly. Trump (in the primary) solidly won every county in New Hampshire, the best state for “average Joes” in the entire country (other than for the nasty drug issue, and I’ve seen no evidence to suggest that boosted Trump support).

    If “Trump won because he is Trump” that’s the opposite of satisfying as that would imply Americans voted for narcicism, blow hardism, and bull shitism… that we preferred someone who has no idea what he is talking about just because he thinks he does…

    My man
    https://www.npr.org/sections/itsallpolitics/2011/04/15/135446314/poll-donald-trump-birther-darling-leads-gop-field-at-26
    Trump won the GOP primary because he’s Trump. Not any of that other BS. No candidate which 60%+ of the party thinks is the best presidential candidate on the economy can possibly lose the primary, no matter his other qualities.

    Yes; HRC being a toxic candidate was absolutely a prerequisite for Trump winning the 2016 election. Bernie would have won the 2016 general election had he won the primary. Trump would have also lost the general election had he run in 2012 (though I think he would have won at least Ohio, and possibly Iowa as well).
    https://medium.com/@nslewis/bernie-woulda-won-the-statistical-case-1a976b6a9476

  40. Gravatar of Bob Murphy Bob Murphy
    29. December 2017 at 20:57

    Scott,

    My first comment above was trolling, but this one isn’t. I dispute your claim that when talking heads praise Trump’s “conservative justices,” they really just mean “people who favor my policy conclusions.” They have a specific philosophy of what a good judge does, and that’s what a conservative judge does.

    I tried googling to test my theory. To be clear, I don’t want to see *opponents* of Trump warning against his “extremist picks.” I want to see how *fans* of Trump talk about what it means to be a “conservative judge.”

    The first example I found was this Washington Examiner article that contained:

    With those appellate appointments, a new Supreme Court justice, and his investiture of several other low-court judges, Trump has rapidly and radically changed the federal judiciary this year. The president’s close relationship with conservative groups like the Heritage Foundation and Federalist Society has ensured that nearly all of his judicial nominees fit the mold of Justice Neil Gorsuch, a strict originalist who succeeded the iconic conservative Justice Antonin Scalia after being confirmed by the Senate last April.

    “There’s been a serious effort to identify people who are seriously committed to doctrines and modes of analysis rather than just being seen as conservatives or Republicans,” Ilya Shapiro, a senior fellow at the Cato Institute wrote recently.

    So from just this first hit, it’s Murphy 1, Sumner 0. Can you point us to an example of a writer (not a comment on YouTube) who praises conservative judges and in the context it clearly means “someone who rules in ways that support conservative policy preferences” as opposed to “has a certain philosophy of law”?

  41. Gravatar of Student Student
    30. December 2017 at 00:38

    Hardin,

    Your almost as nuts as MF. Don’t be a nitwit

  42. Gravatar of E. Harding E. Harding
    30. December 2017 at 10:51

    Student, powerful lack of argument in response to my explicit refutations of your points. I have nothing else to say.

  43. Gravatar of ssumner ssumner
    30. December 2017 at 16:16

    Bob, Yes, I’m sure that the five “conservative” justices that overruled states rights and handed the election to Bush in 2000 did so out of “principles”. And I’m sure that the 4 liberals were equally “principled” in defending “states rights”.

    I wasn’t born yesterday

  44. Gravatar of E. Harding E. Harding
    30. December 2017 at 16:57

    The liberal ones were definitely unprincipled, Sumner. Constitutionally, state legislatures decides how electoral votes are to be apportioned, and the FL state legislature was GOP.

  45. Gravatar of Bob Murphy Bob Murphy
    31. December 2017 at 09:41

    Scott wrote:

    “Bob, Yes, I’m sure that the five “conservative” justices that overruled states rights and handed the election to Bush in 2000 did so out of “principles”. And I’m sure that the 4 liberals were equally “principled” in defending “states rights”.

    I wasn’t born yesterday”

    Scott, if you had written a post that said, “I think in practice a lot of judges are partisan. For example, isn’t it a ‘coincidence’ that ‘legal principles’ all led the judges in 2000 to vote on party lines?” then I’m pretty sure you would have gotten zero disagreement. (Well, MF would still say you were a dirty inflationist.)

    But that’s not the main point you were making. Instead, you were saying that the people who were praising Trump for at least putting in “conservative” justices, didn’t impress you since you would prefer good justices.

    So some of us here in the comments are pushing back against that as a spurious distinction. In the minds of the people praising Trump for picking conservative justices, they are saying “a good justice is a conservative one who rules according to these principles…”

    I would be surprised if you could find a single prominent commentator who said, “Trump may be a moron, but at least he’s installing justices who will vote for the Republican in a future election that’s really close.”

  46. Gravatar of Bob Murphy Bob Murphy
    31. December 2017 at 09:46

    Let me try to meet you halfway, Scott. I agree that a lot of rank-and-file Trump supporters would probably say something like, “Trump will appoint conservatives justices who are tough on criminals and don’t whine about whether their rights were violated by law enforcement,” and in such cases yes that is bogus. That has nothing to do with any decent philosophy of law, and is more about policy preferences.

    But, I think it would be hard for you to find a prominent commentator who said it so nakedly (maybe Rush Limbaugh), and if you let that commentator keep talking, s/he would surely segue into stuff about original intent, not “legislating from the bench,” etc.

  47. Gravatar of E. Harding E. Harding
    31. December 2017 at 11:05

    Exactly, Bob.

  48. Gravatar of Massimo Heitor Massimo Heitor
    31. December 2017 at 11:31

    @Matt mcosker

    “IMO the global surge in nationalism is easy to explain, many feel economically left behind since 2008, and right or wrong, perceptions about unfettered immigration”

    The emotion over immigration isn’t economics, it’s identity.

    People aren’t “allowed” to prefer their ethnic/religious/linguistic tribe over others, that is racist. Realistically most normal humans strongly feel that way, so they have to cloak it in a more respectable argument, such as an economic case, but that’s not really their core point.

    I don’t agree that it’s just people who’ve been left behind economically who object to the current model of immigration. A lot of economically successful people don’t like to see their nations radically transformed at a demographic, ethnic, religious, and linguistic level to benefit completely foreign tribes. This should be obvious.

  49. Gravatar of ssumner ssumner
    1. January 2018 at 08:33

    Bob, I just don’t like people equating “good” and “conservative.” Is a good plumber a conservative plumber? Is a good doctor a conservative doctor? One’s ideology shouldn’t have anything to do with the quality of one’s work.

    “Conservative” legal principles keep shifting, depending on what’s convenient at the time. Is it conservative to defer to the legislature, and not be “activist”. Or is it conservative to constantly be overturning laws that go beyond the original intent of the Constitution?

  50. Gravatar of E. Harding E. Harding
    1. January 2018 at 11:21

    God, Sumner, you’re thick. Is a good doctor one who pays attention to financial markets? Is a good plumber one who pays attention to financial markets? Yes; a good judge is a conservative judge.

    ““Conservative” legal principles keep shifting, depending on what’s convenient at the time.”
    100% wrong.

    “Is it conservative to defer to the legislature, and not be “activist”. Or is it conservative to constantly be overturning laws that go beyond the original intent of the Constitution?”
    The latter, duh.

  51. Gravatar of mbka mbka
    2. January 2018 at 01:24

    Scott,

    “[…] we should be trying to explain the global surge in right wing nationalism. If your explanation for Trump doesn’t apply to India, China and Poland, it’s worthless. That means your explanation should not include phrases such as “West Virginia” or “illegal immigrants”. If it does, you are missing the big picture.”

    50 comments and counting, and no one got your point.

    Not that I have a good answer either. Maybe the perceived threat to perceived identity from perceived globalisation fears works by proxy even in places not much affected by it?

    I’m equally curious as to how the whole thing is a (so far) milder replay of the 1920s with its world wide rise of extremist nationalism. What do these eras have in common? It can’t be social media or the internet, obviously. Nor is it empires or mass unemployment or any of the likes. Nor can it be 2008 and the consequences alone, the trend started earlier, especially in Europe.

  52. Gravatar of Greg DeLassus Greg DeLassus
    2. January 2018 at 10:39

    “There’s been a large spike in migration into India, China and Poland?”

    There has been a notable increase in migration *out of* India, China, and Poland in the last few decades. I think that you are not giving Student’s “migration” thesis the credit it deserves. Out-migrations are just as unsettling to a population as in-migrations. As others have noted, people have tribal instincts, and migrations put those instincts on high-alert.

    The effects of climate change induced migration mixed with the post-colonial legal legacy that allows for and facilitates migration of the formerly colonized into the lands of the former colonizers has resulted in a historically large movement of peoples around the world. It is regrettable but probably not surprising that this has triggered some of our worse instincts, and resulted in a set of conditions where people the world over are primed to scapegoat foreigners for all manner of problems (both real problems and purely imaginary problems).

    “I’m equally curious as to how the whole thing is a (so far) milder replay of the 1920s with its world wide rise of extremist nationalism.”

    Once again, I think that Student’s thesis has a lot of explanatory power here. The 1800s were a time of big migration (with new world countries eager to welcome European migrants and Europe teaming with economic and political refugees). The only thing “surprising” is that the recent migrations are *larger* than the migrations of the 1800s, so it is surprising that so far the backlash has been (as you observe) milder.

    I suppose that I can quickly think of two (not mutually exclusive) explanations for this:

    (1) We have institutions in place now, which were not in place then, that are capable of keeping the backlash at least somewhat in check.

    (2) We are only in the early phases of the backlash, and while it is milder now, it will prove worse in time.

  53. Gravatar of Greg DeLassus Greg DeLassus
    2. January 2018 at 10:40

    “last few decades.”

    Just to be explicit, by “last few” I mean since the 1950s. If someone coughs up data to show that migration out of India, China, and or Poland has not increased since 1950 (or not appreciably), then my point will be effectively falsified.

  54. Gravatar of mico mico
    2. January 2018 at 12:52

    It’s indeed unfortunate that Trump travelled back in time to 2014 to make Hindu nationalists mad about the British Raj. But, in a wider sense, it only speaks to his irrepressible capacity to amaze. What can’t this man do?

  55. Gravatar of Christian List Christian List
    2. January 2018 at 14:28


    we should be trying to explain the global surge in right wing nationalism. If your explanation for Trump doesn’t apply to India, China and Poland, it’s worthless. That means your explanation should not include phrases such as “West Virginia” or “illegal immigrants”. If it does, you are missing the big picture.

    I would take countries like China, India, and Turkey out of the equation. They have been very nationalistic since forever. What really changed dramatically during the last years is their economic power. So now their nationalism becomes more and more visible and dangerous.

    Regarding the other countries I agree with all the others who said it before me: It’s massive perceived migration that appears like a Völkerwanderung to many and leads to fears about identity, culture, and so on.

    It’s also a simple reaction to the rise of countries like China. It’s easy to be “liberal” when you are the hegemonic powers and cultures anyway, like the US + Europe have been for centuries. It’s no so easy anymore when you suddenly have to share that power with other regions.

  56. Gravatar of mbka mbka
    2. January 2018 at 17:33

    Christian List, Greg DeLassus,

    you’re still in the paradigm of why “we” (people you perceive as your kind, i.e. Westerners) have been turning much more nationalistic, in a several decades long megatrend. In this vein, you explain away similar developments in places not covered by “we”. But China wasn’t particularly nationalistic until a few years ago. Japan has a resurgence of nationalism that had been at bay for nearly 70 years. In Europe, countries turn nationalistic regardless of whether they had recent mass immigration or not. Previous decades had mass migrations into Western countries too and did not lead to a similar backlash interpreted nationalistically (decolonisation is another thing entirely – this led to independence nationalism).

    Nationalism is not a natural or obvious response to perceived issues. It is one of many possible interpretations and reactions to current issues. Current issues aren’t particularly upsetting if you look at world data, yet worldwide, nationalism is fashionable. If you ask me, fashion is a possibility. People look for explanatory models of the world, and more so if the world is changing. Independently of this, many people favor collectivist modes of thinking. Communism died as a collectivist dream, and nationalism is an alternate form of a collective dream. So it picked up the slack from communism. If you ask me, I’d pick that as part of the answer.

  57. Gravatar of Patrick Sullivan Patrick Sullivan
    3. January 2018 at 08:21

    ‘Or how about the electoral college, which negates the will of the people?’

    The Constitution is one big negation of the ‘will of the people.’ And for good reason. How about ‘Congress shall make no law…’?

    Also, contrary to claims, Bush v. Gore was three separate decisions, Bush won the first challenge 9-0, the second (the Equal Protection argument) 7-2, and the final one 5-4 (aka, the time limit, or shot-clock). I make that 21-6 for Bush’s arguments.

    Btw, the Constitution (this was a Federal office, after all) clearly gives state legislatures the right to determine how its electors are chosen. The Florida Supreme Court was obviously violating that standard, as the Florida Chief Justice admitted in his dissent in their 4-3 decision favoring Gore. So, if anyone was violating ‘states’ rights, it was the Florida Supreme Court.

  58. Gravatar of Christian List Christian List
    3. January 2018 at 14:11

    mbka,

    I try it one time (but only one time).


    you’re still in the paradigm of why “we” (people you perceive as your kind, i.e. Westerners) have been turning much more nationalistic, in a several decades long megatrend.

    Big words. I doubt that what you call “megatrend” even exists. You just made that up. It’s not true for China. I doubt it’s true for the US and Europe. And that comes from me.


    In this vein, you explain away similar developments in places not covered by “we”.

    I don’t explain away anything. Did you even read what I wrote? Reading comprehension?


    But China wasn’t particularly nationalistic until a few years ago.

    Lol.


    Japan has a resurgence of nationalism that had been at bay for nearly 70 years.

    Easily explained by the rise of China. And maybe China’s attack dog North Korea.


    In Europe, countries turn nationalistic regardless of whether they had recent mass immigration or not.

    There’s something called the EU, have you heard of it?


    decolonisation is another thing entirely – this led to independence nationalism

    Sure it’s always “another thing entirely” when the politically correct countries do it. How laughable.

  59. Gravatar of mbka mbka
    3. January 2018 at 17:24

    Christian List,

    no useful engagement from you with my attempt at inserting new content in this stale repetition of prejudices. Just one thing I’d like to address:

    “decolonisation is another thing entirely – this led to independence nationalism

    Sure it’s always “another thing entirely” when the politically correct countries do it. How laughable.”

    Blinded by your fixed opinions and received wisdoms you didn’t notice I wasn’t being approving of independence nationalism. I was just noting that the generating mechanism was probably a different one here. On this matter, and on nationalism in general, I highly recommend Benedict Anderson’s “Imagined Communities”.

  60. Gravatar of Christian List Christian List
    4. January 2018 at 03:21

    @Patrick Sullivan
    Very good comment. I nearly forgot that it was three separate decisions.

    @mbka
    Zero content from you, sorry. Just bla bla.

    It’s funny that Scott is able to make such straightforward explanations regarding something as complicated as money and economics, but then when it comes down to something as simple as the rise of right-wing parties in parts of the world, he’s like: “Oh no, it’s a big puzzle, I got no theory at all.” — It’s just an ideological scissor in your heads, that’s all. I leave it at that now, what a waste of time.

  61. Gravatar of Carl Carl
    4. January 2018 at 09:50

    Scott:

    I missed your response. I guess my numbers are wrong on how happy we Americans are feeling. But, that point may not disqualify my theory that rising nationalism is the response to the relative decline of american power and influence.

    Per these pew surveys, http://www.pewglobal.org/2014/07/14/chapter-3-balance-of-power-u-s-vs-china/, the world has perceived a shift in power between the US and China. That could explain the rising nationalism in China as the Chinese could be feeling less constrained by a global hegemon. In the United States our interests could turn more parochial because we are being stripped of some of our global responsibilities. Other countries, like Russia, could be vying to fill a growing vacuum and countries like the European countries could be seeing less benefit in trying to align their interests with what is now being perceived as a declining hegemon.

  62. Gravatar of Christian List Christian List
    4. January 2018 at 14:47

    @Carl

    The studies I read say Chinese nationalism did not rise at all. It’s the same level as ever, maybe even declining. Just google it.

    Scott also loves to link to studies that seem to “prove” that US nationalism is declining. So which way is it Scott, you can’t have it both ways: Nationalism is either rising or it’s not.

  63. Gravatar of Carl Carl
    5. January 2018 at 09:05

    @Christian List

    Maybe we’re googling different phrases because my search on “Chinese nationalism” comes up mostly with articles on rising Chinese nationalism.

    That said, if my theory is right and the perceived rise in nationalism is primarily the result of a growing vacuum created by the relative decline of the US, it might be impossible to parse out what is due to a rise in nationalism and what is due to a removal of the constraints on nationalism. The Chinese could conceivably be getting more cosmopolitan at the same time that the world is perceiving them as more nationalistic.

  64. Gravatar of Christian List Christian List
    7. January 2018 at 11:46

    @Carl

    I talked about studies not articles. We need actual data and empirical testing, not just anecdotes and opinions.

    Your search term “Chinese nationalism” comes up with exactly one study on the first page (results #6 and #7 in my case). It’s by Alastair Iain Johnston and it’s the biggest, most serious, and most recent paper regarding this topic I know of. The paper doubts that Chinese nationalism is rising.


    The Chinese could conceivably be getting more cosmopolitan at the same time that the world is perceiving them as more nationalistic.

    I agree. It seems to be “just” rising economical power not a more nationalistic attitude. Chinese people have been more or less nationalistic since forever, now they are actually getting more cosmopolitan.

  65. Gravatar of Emerich Emerich
    9. January 2018 at 18:53

    I can’t imagine disagreeing with the desire for “better” judges, rather than conservative, or liberal judges, if “liberal” judges are those who approve liberal outcomes and “conservatives”, conservative ones. In this case, however, we need to look further than the labels. What is a “liberal” judge? Liberal legal scholars and commentators argue that the constitution is a “living, breathing” document, i.e., it needs to be reinterpreted to conform with modernity, which in practice means the judge’s and his party’s political preoccupations. “Conservative” legal scholars argue that the judges role is to serve as legal “umpire” (a metaphor frequently invoked, e.g., by Neil Gorsuch), deciding merely whether a piece of legislation, or actions flowing from legislation, are consistent with the U.S. constitution or not.

    How might decisions driven by these alternative approaches come out? If the constitution is “living and breathing” then politics needs to inform the decision–the judge’s politics, presumably. Or maybe not just politics, but what? If a judge believes it’s his role merely to “call balls and strikes”, the judge ipso facto won’t be making “conservative” decisions, where “conservative” means favoring the Republican party. One can argue whether “conservative” judges are in fact merely being umpires. But essence of the difference between the two outlooks is that one admits to believing that politics must inform judicial decisions, the other that it should not. It’s no accident that supreme court justices appointed by Republicans don’t always come down with decisions their party approves, as John Roberts’s Oamacare decision attests. Justices appointed by liberal Presidents tend to be much more consistent in the politics of their decisions.

  66. Gravatar of Nick Nick
    10. January 2018 at 11:23

    Scott- This strikes me as one of those posts that feels good to write but avoids deeper questions at play (everyone wants a good judge until you define “good”).

    There’s an epistemological question that must be answered before you say what a good judge is. Many would argue that fixed meaning through words is an impossibility at a certain level of abstraction (i.e. “equal protection” or “due process”). Judges MUST apply a set of principles or beliefs to answer those questions, and which principles are used is a reflection of, rather than determined by, political ideology – put differently, there are a lot of questions answered by judges where liberal, conservative, or libertarian ideologies will drive a different result and each answer will be correct depending on your framework.

    Perhaps you reject this concept and believe that all questions can be answered through utilitarian reductionism. I say that even under that framework, preferences fold into the model and yield different results.

  67. Gravatar of ssumner ssumner
    10. January 2018 at 15:19

    Nick, You said:

    “Perhaps you reject this concept and believe that all questions can be answered through utilitarian reductionism.”

    Did you read the post?

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