I nearly drove off the road today when I heard that the U.S. Court of Appeals for the 4th Circuit issued a 10 [Democrat[-3 [Republican] decision basically blocking President Trump’s revised travel ban—and I’m a law professor: I’m not easily shocked by federal judges [Federal appeals court maintains freeze of Trump’s travel ban. Attorney general vows Supreme Court appeal, by Ann E, Marimow and Robert Barnes, Washington Post, May 25, 2017]. This is an extraordinary assertion of judicial supremacy over the Executive and Legislative branches’ right to make immigration policy. Not surprisingly, the reaction is intense—and ominous e.g. Why Trump has a responsibility to ignore the Fourth Circuit, by Daniel Horowitz, Conservative Review, May 25, 2017.
But in a larger sense, this development is not surprising. It’s the culmination a phenomenon Charles Murray documented in his book Coming Apart—our professional, business, and educational elites have isolated themselves from the rest of American and, in particular, the working class for whom they have growing contempt.
New York Times columnist David Brooks, [Email him]in his satirical Bobos in Paradise, to which Murray alludes repeatedly, described how our new elites’ identities rest upon meritocratic achievement and cultural self-expression rather than attachment to traditional American culture. The code that binds our new elites together requires its member to be “non-judgmental” and “culturally open, “shunning the narrow and parochial impression that professions of patriotism can give.
The federal judiciary, dominated by graduates of top law schools who have prospered in prestigious legal and political circles, belong to this elite. The Fourth Circuit’s ruling is the latest example of the judicial Alice in Wonderland which has greeted President Donald Trump’s executive orders on immigration. These decisions illustrate our federal judges’ isolation from the patriotism, national self-interest, and common sense shared by the majority of Americans who want meaningful immigration restrictions.
The legal issues Trump’s orders present are easy. Congress has plenary power to decide who comes into this country. Section 8 U.S.C. §1182(f) delegates this power to the President giving authority to “suspend the entry of all aliens or any class of aliens” whenever he “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.”
Pursuant to this authority, President Trump decided people from countries such as Sudan, Somalia, and Yemen should be temporarily banned because those countries have lax screening procedures and their citizens seem more prone to terrorism than the average bear. QED. This is how Judges Nathaniel Gorton and Anthony Trenga of the Massachusetts and Eastern Virginia district courts ruled on Trump’s order.
The bobo judge, on the other hand, rejects this easy, clear legal logic because he dare not give off the slightest odor of parochialism or crude nationalism. The bobo judge’s refined sensibility allows him an exquisite appreciation of other cultures and a noble appreciation of their members’ pain.
And, sadly, the opinions from the district courts of Western Washington and Hawaii as well as that from the Ninth Circuit demonstrate this bobo-ism.
The challenges to President Trump’s orders turn on two central questions.
This reasoning is breathtaking. Consider a politician who decries ISIS as reflective of an evil religion that he personally hates. This politician becomes president and limits immigration from areas ISIS dominates. Clearly, the actions would be motivated by religious animus—is that unconstitutional? Could such a president constitutionally declare war against ISIS?
Or as Herbert Titus and William Olson point out in recent court filings [PDF], President Jefferson’s comments about the Mohammedan Barbary Pirates would have demonstrated his animus and thus the entire Barbary War was unconstitutional.
Better tell the Marines.
Religious “discrimination” or “animus” In immigration and international affairs simply makes no sense. Legal discrimination involves giving individuals, who enjoy legal equality with each other in the same political unit, the same set of rights. But world politics operates and nations organize themselves in terms of different and inherently incompatible nation states, ethnicities, and, yes, religions.
Presidents must be able to conduct world affairs in the categories and forces that guide it. Claiming that the Constitution requires religion-blindness in foreign relations is bobo madness.
This is more bobo insanity. Judge Watson, a graduate of Harvard College and Harvard Law School, could not bring himself to hurt the feelings of the multiculturally sensitive. Their feelings must guide American foreign policy and immigration. This is the reasoning of a bobo who believes that demonstrating one’s “openness” to different cultures and societies is more important than protecting one’s own.
If our be-robed bobos do not believe in our society and culture, in what do they believe?
Thinking about this question reminded me of a 20-year old exchange between two American professors: the late philosopher Richard Rorty and the classicist (and arguably perjurer) Martha Nussbaum. In an op-ed piece in The New York Times [ The Unpatriotic Academy, February 13 1994] Rorty argued that American Left must give central importance to “the emotion of national pride” and “a sense of shared national identity.” Given Trump’s victory, Rorty now seems prophetic.
Nussbaum castigated Rorty, urging the Left to become cosmopolitans. National attachment. She said, is simply a “morally arbitrary boundary.” Rather, people should be cosmopolitans, citizens of the world who put “universal reason before the symbols of national belonging.” (She seems oblivious to the meaning the word had in the 1930s.) [Patriotism and Cosmopolitanism, Boston Review, October/November 1994 ]
Like Nussbaum, our bobo judges are cosmopolitans. To their refined minds, national attachments—or any sort of religious identity—is but a “morally arbitrary boundary” that enlightened governance must eschew.
It is better to welcome killer immigrant terrorists than show oneself bound by nationalism's “morally arbitrary” boundaries or, worse, share beliefs with those who lack college degrees, rarely visit Whole Foods, don’t feel a close, personal connection with NPR’s Terry Gross—and, above all, vote for Donald Trump.
It is no small problem when judges who are supposed to be Americans reveal themselves as cosmopolitans. The federal judiciary’s legitimacy rests on its connection with the values of people whom it serves and who pay its salaries. Indeed, as judges serve without any democratic oversight, judges’ basic moral commitments must mirror those of the people.
As our Bobo judges become members of an ever more insulated elite, their decisions lose ever more democratic legitimacy.
At some point—perhaps sooner than we might expect, the democracy will realize this.
Judd Benjamin (email him) is an American law professor.