Raising the Barr

We’ve been all over Attorney General Bill Barr’s adventures in congressional “oversight” this week, but as it happens I just received the summer issue of the Harvard Journal of Law and Public Policy, which is the academic journal of the Federalist Society. And the lead article in this issue is Barr’s Barbara Olson Memorial Lecture from last fall’s annual Federalist Society conference, which has the anodyne title, “The Role of the Executive.”

Don’t be fooled by that bland title. It is a terrific lecture, with many important themes, and extremely well-sourced. This passage in particular jumps out:

Immediately after President Trump won election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his administration. Now “resistance” is the language used to describe an insurgency against rule imposed by an occupying military power. The term obviously connotes that the government opposed is not legitimate. This is a very dangerous—indeed, incendiary—notion to import into the politics of a democratic republic. What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process. The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.

Yet that is precisely what the Senate minority has done from his very first days in office. As of September of this year [2019], the Senate had been forced to invoke cloture on 236 Trump nominees—each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation. How many times was cloture invoked on nominees during President Obama’s first term? Seventeen times. The second President Bush’s first term? Four times. It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

Barr really gets rolling later in the lecture. Like this:

The fact of the matter is that, in waging a scorched earth, no- holds-barred war of “Resistance” against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law. This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day. It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic.

In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the state to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.

No wonder Democrats are so angry with Barr. He has their number.

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