The Supreme Court and the mythical road to Weimar

Partisans will disagree about Brett Kavanaugh, but those panicking about the end of democracy need to step back from the brink.

U.S. President Donald Trump nominates Judge Brett Kavanaugh, shown with his family, for the U.S. Supreme Court, July 9, 2018. Credit: The White House.
U.S. President Donald Trump nominates Judge Brett Kavanaugh, shown with his family, for the U.S. Supreme Court, July 9, 2018. Credit: The White House.
Jonathan S. Tobin
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him @jonathans_tobin.

When U.S. President Donald Trump announced his nomination of Judge Brett Kavanaugh to the U.S. Supreme Court on Monday night, opinion quickly divided along partisan lines. That didn’t used to be the way Americans treated the court. But whether you want to date this change to 1987, when the Democrats turned jurist Robert Bork’s last name into a verb, or to 2016, when Republicans denied Merrick Garland a hearing, that’s how America does these things now.

All of which means that in this hyper-partisan age, if you’re a Democrat, then you’re against Kavanaugh; if you’re a Republican, then you’re for him. That’s true, though most of the people who will give pollsters their views on the subject won’t really know much about him or even the kind of legal issues that Supreme Court judges decide.

Expecting that to change in the foreseeable future is foolish. But there is one point that ought to be taken out of the Kavanaugh announcement, no matter which side of the great divide you’re on. In one of the most consequential decisions he will make as president, Trump chose not to go rogue or radical. He picked a man who is a charter member of the legal establishment. Everyone may not agree with him on the issues that split us, but surely, we can acknowledge that Kavanaugh is not one more indication that we’re on the road to fascism, can’t we?

Apparently not.

Kavanaugh’s nomination didn’t calm down any of the rhetoric we’ve been hearing from some people about the Trump administration not merely doing things they don’t like, but destroying democracy.

Part of this is just partisanship run amuck. But these sentiments are being heard not just from those who dwell in the fever swamps on the margins of American politics, but also from ordinarily sensible mainstream people.

Trump deserves a lot of the blame for this, as his outrageous statements, tweets and conduct are the sorts of behavior no one would have considered acceptable before him. Unfortunately, that seems to be the new normal.

Still, there is a difference between disdaining Trump the person, and believing that analogies between his administration and the Nazis are acceptable. And yet, violating the rule that anyone who makes comparisons to Hitler automatically loses the argument is what even otherwise smart people are doing every day.

To note the egregious nature of such comparisons does not mean that Trump is always right or that the anger some of his decisions provokes is not sometimes justified. But, for example, there is a difference between opposing a particular way of enforcing existing immigration law and trying to pretend that illegal immigrants seeking a better life in America are akin to closing the gates to millions of Jews marked for death.

It’s also possible, or at least it ought to be, for Americans to be able to disagree about even the most contentious social issues like abortion without hearing assertions that we’re living in the moral equivalent of the last days of the Weimar Republic.

Yet the nature of American politics today is such that a lot of people really do think replacing one usually conservative judge with what might prove to be a slightly more conservative jurist means that we’re about to see “The Handmaid’s Tale” become reality.

Let’s be clear. Even if you hate everything Trump does and says—even when, as is usually the case, he’s just going about normal presidential business (like nominating Kavanaugh) that any other Republican leader would do—the American republic is not in danger of becoming a fascist state. Despite Trump’s trolling of his media critics, freedom of the press remains intact. As anyone who watches the cable-news stations not named Fox or read the opinion pages of most daily newspapers, anti-Trump sentiments are not banned. If the people want change, they can vote out congressional Republicans this fall and Trump two years later.

The hysteria about a judicial confirmation that was determined by the 2016 election results (as President Barack Obama liked to say after he won, “elections have consequences”) doesn’t change any of this.

Given the highly partisan nature of the public square right now, the debate might get worse before it gets better. But as far as talk about Hitler is concerned, there is something that American Jews can do about it.

Liberal Jewish groups are going to lead the charge against Kavanaugh and Trump, and there’s nothing wrong with them having their say. To the contrary, groups like the Religious Action Center of Reform Judaism will be expressing the views of most of their members when they head to the barricades in what will likely be a futile effort to stop Kavanaugh’s confirmation. But they and all those who will follow their lead also have a responsibility to set the right tone about these contentious issues.

What we need is a clear indication from those who will claim to speak for the Jews when they advocate against the Trump administration is to draw a clear distinction between the political disagreements that divide contemporary Americans and the existential issues that are intrinsic to any discussion of the Holocaust.

Those who urge Americans to drop any pretense of civility, belief in fair play or even the need to listen to opposing views because they feel that one side in our political contests is not just wrong, but evil, should not be allowed to justify this sort of bad behavior by means of false analogies to past crimes against the Jews. If they do, they need to be called out by those whose job it is to speak for the Jewish community. If our leaders fail to do so—or even worse, play their own part in enabling these slanders by giving them the imprimatur of the organized Jewish world—they will not only be playing a negative role in American society, they will be trashing history.

Jonathan S. Tobin is editor in chief of JNS — Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.

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