The election of Roy Moore as the Republican Senate candidate in Alabama exposes Republican hypocrisy on judges and the “rule of law.”
If you ask fervent Republicans why they like Donald Trump, often you’ll hear something along the lines of, “He’s been great on judges.” I even had one smart conservative tell me that Trump’s appointment of Neil Gorsuch to the Supreme Court justifies his entire first year in office, if not his presidency. But why is it that Republicans are so determined to have the president appoint conservative judges?
The ostensible explanation is that it’s vitally important to interpret the Constitution as it was written. Conservatives have spent decades railing against activist judges who impose their own beliefs rather than follow the sacred text of the law. (I once even wrote a book along those lines myself.) In theory, there is a strong case to be made for what the late Justice Antonin Scalia called “originalism,” an attempt to interpret Constitutional provisions as the Founding Fathers intended.
But it is increasingly obvious — if it was not before — that for most conservatives, devotion to original intent is as cynical as their attachment to state’s rights. Right-wingers were happy to cite state’s rights as their justification to oppose civil rights laws, but any such considerations of federalism were quickly forgotten when they were pushing the 1996 Defense of Marriage Act to bar states from legalizing gay marriage.
Likewise, aside from a few members of the Federalist Society, most ordinary Republicans clearly see the battle over federal judges as simply a matter of legislating their beliefs, rather than those of liberals, from the bench. They don’t want justices to rule impartially if the result is policy outcomes they don’t like, such as upholding the constitutionality of gay marriage or Obamacare. In both cases, conservatives have turned with a vengeance on Chief Justice John Roberts, who was once seen as their champion.
Any supposed reverence for rule of law goes out the window when Republicans vote, as they just did in Alabama, for a candidate like Moore, a man whose claim to fame is his opposition to the Constitution. As a state Supreme Court justice, he was suspended from office for disregarding federal court rulings by refusing to take down a statue of the Ten Commandments in the courthouse, refusing to stop holding prayer sessions in his court and refusing to apply the Supreme Court’s decision legalizing gay marriage.
He has explicitly stated that, in his view, the Bible overrides federal law: “The Judeo-Christian God reigned over both the church and the state in this country, and that both owed allegiance to that God,” he said. He thinks that “Christianity should be favored by the state” in America — pretty much the opposite of what the founders, who wrote the non-establishment clause of the 1st Amendment, believed.
Bizarrely enough, Moore regularly inveighs against Islamic Shariah law, which he thinks is being implemented in some region of this country — he just doesn’t know exactly where (“in Illinois, Indiana — up there, I don’t know”). He even thinks that a Muslim should not be seated in Congress. Yet it is Moore who is doing precisely what he accuses Muslims of doing — namely, disregarding the rule of law in favor of the word of the Almighty. Moore also thinks that terrorist attacks and mass shootings are God’s punishment for American godlessness, and that homosexuality should be illegalized. He is, in short, a religious loon.
Alabama voters cannot, with a straight face, profess to favor the rule of law and elect Moore as one of their senators. Nor, for that matter, can they or other Republicans profess devotion to the rule of law and support Trump as their president. Trump has consistently shown a flagrant disregard for the law, whether by interpreting a nepotism statute in such a way as to allow him to employ his daughter and son-in-law in the White House or by ignoring the Constitution’s emoluments clause by reaping the financial benefits of having foreign leaders stay at his properties.
Even worse, Trump fired FBI Director James Comey in order to, by his own admission, stop an investigation into his campaign’s ties to the Kremlin. If that isn’t obstruction of justice, it’s hard to know what is. Oh, and Trump pardoned former Sheriff Joe Arpaio after the racist lawman of Maricopa County, Ariz., had been held in contempt of a federal court for arresting people simply because they were Latinos.
Trump has shown himself to be the most lawless president since Richard Nixon — and special counsel Robert Mueller may uncover evidence that he is worse than “Tricky Dick.” Yet 82% of Republicans continue to approve of Trump’s conduct in office. That is their right. But please spare us any more sanctimonious nonsense about how conservatives believe in the rule of law. If they were sincere in that belief, they would not be supporting Roy Moore or Donald Trump.
Max Boot is a contributing writer to Opinion and a senior fellow at the Council on Foreign Relations.
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