The Inability To Pick A Political Fight In Public

You know this is true in litigation: The other side in a lawsuit takes a stupid position. You explain why the idea is stupid. The other side stands by the stupid position until you brief the argument and are about to present it to a judge. The other side realizes that it’s about to be publicly exposed as a moron, and the other side abandons the stupid argument.

This idea also applies to public fights, such as political fights over public policy issues. Politicians and parties will take a stupid position until their position is about to be made public. At that point, they abandon the stupid position.

Unfortunately, in our current world of political silos, it’s no longer possible to make an issue public.

Take, for example, Donald Trump’s request that the Senate go into recess to allow him to make recess appointments of Cabinet secretaries and thus avoid the need for confirmation hearings. This request is transparently stupid. If it were possible to cause the public to focus on the issue, any reasonable person would see that Trump’s position is stupid, and Trump would abandon the request. But it’s no longer possible to make the issue public, so Trump will never abandon the argument.

Why is Trump’s request silly? Here are just two reasons. First, the United States Constitution requires that the Senate give advice and consent about certain Executive Branch appointees. Since the Constitution requires this, the president should not ask the Senate to ignore its constitutional obligations, and no self-respecting senator would consider doing this. (Every senator did, after all, give an oath to support the Constitution.) Law-abiding senators would explain to Trump that the Constitution requires the Senate to advise and consent on appointments; the Senate cannot go into recess for the express purpose of abdicating its constitutional duty.

Second, the merits of political arguments can often be judged by hypothetically switching the positions of the political parties involved.  Suppose that it were not a Republican president, Trump, who was asking the Senate to ignore its constitutional duty, go into recess, and let the president make his appointments unencumbered.  Suppose instead that it were a Democratic president — say, Biden — who asked the Republicans in the Senate to go into recess to permit him to make his appointments unencumbered.

Everyone knows how that would go: The Republicans in the Senate would be up in arms. They’d howl that the Constitution requires them to advise and consent on appointments. Biden’s outrageous request was an obvious power grab to allow him to staff the Executive Branch with incompetent loyalists to achieve partisan ends! It’s an outrage that Biden would even suggest such a thing, and there’s no way that Republicans would consent!

See?

Trump’s request that the Senate go into recess to allow recess appointments is on its face absurd. If the argument were about to be made public, Trump would concede the point rather than defend this idiocy before all of America.

The difficulty is that Trump’s argument can no longer be put before the public to reveal how silly it is. This column, for example, appears in an online publication that generally leans to the left. Conservatives will never read this column and thus will never see Trump’s point exposed for the foolishness it is.

Other outlets may repeat my argument, but those outlets will be along the lines of The New York Times, the Washington Post, and similar liberal media. Neither the Wall Street Journal nor the New York Post nor Breitbart News will ever repeat these points.

Nor will the algorithms controlling online access to information permit the argument to be spread. The Facebook and TikTok feeds of conservatives, designed to spoon-feed people only arguments with which they agree, will weed out my points.

Rather, conservative outlets will continue to say, “Trump won the presidential election in a landslide. He’s now asked that the Senate use a procedural vehicle to let him make the appointments that he wants without interference by others. Of course the Senate should heed that request. Trump has the right to appoint the people he wants without Senate interference.”

The United States will continue to see people pursue silly arguments until we can once again allow those silly arguments to be considered by the public generally. When sources of information are put into silos, people are not forced to abandon silly arguments, and proponents of silly arguments do not pay the price of being publicly exposed as fools.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].