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Thursday, January 18, 2018

Speaking truth to power v. exercising actual power

I appreciate Sen. Flake's words about Donald Trump and the rhetorical threat he poses to free-speech and republican values. But it is difficult not to see it as 1) something that hundreds of people have been saying for two years in the media, blogs, and other places and 2) empty words.

On the second point: Free speech is important because of its power to persuade. But a democratic theory of free speech recognizes that speech is a form of influence for those who lack formal political or governing power or influence. Words alone therefore ring hollow when unaccompanied by action by a person in a position of power. That is what I see with respect to Flake--he has repeatedly criticized the President, but like most other congressional Republicans has fallen in line with what he wants when (as in most situations) it aligns with Republican policy preferences. So the words are nice. But they do not achieve much when Flake's own voting conduct undermines them.

Posted by Howard Wasserman on January 18, 2018 at 06:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


This isn't an example of people talking past one another, so much as one side not communicating. If people saying "Trump is like Stalin" don't mean anything like "Trump is like Stalin," then they are not communicating their ideas effectively. It's not unreasonable of people to expect others to coherently explain their positions in concise language that conveys their actual ideas with some precision; if folks don't do that, they're unlikely to succeed in persuading others. That any of this needs to be said in a forum of law-types is sort of amazing.

Posted by: Curmudgeonly Ex-Clerk | Jan 22, 2018 10:26:58 AM

We are latching on to the Stalin reference? Two comments cite THAT?

National Review quotes from a Flake speech to give apparent context:

"Mr. President, it is a testament to the condition of our democracy that our own president uses words infamously spoken by Josef Stalin to describe his enemies. It bears noting that so fraught with malice was the phrase “enemy of the people,” that even Nikita Khrushchev forbade its use, telling the Soviet Communist Party that the phrase had been introduced by Stalin for the purpose of “annihilating such individuals” who disagreed with the supreme leader.:"

Read more at: http://www.nationalreview.com/corner/455558/flake-trump-and-stalin

The comparison, like some comparison to Hitler, is not meant to be taken literally. Trump isn't the same as Stalin. It just is cited as a quick suggestion on the level of wrong involved, something that warrants special actions by conservatives to address.

There are various ways to play a "constructive role in public service." The original post thinks Flake should do somewhat more in his voting conduct to serve as a check on Trump, provide some pressure. Flake isn't required to suddenly become a Democrat in the process.

This level of talking past each other might require handing out walkie talkies. My apologies, but I find this rather troubling in the level of missing the point. Have a nice weekend!

Posted by: Joe | Jan 19, 2018 4:38:22 PM

I'm with Orin, rather than Howard, for what it's worth. Trump is (obviously, to me) unfit and unworthy, and I did not vote for him, but he does not pose anything like "the threat of Stalin" (and Sen. Flake didn't say that he did) and I do not see why a conventionally conservative official (or, for that matter, judicial nominee) is required by virtue of being clear-eyed about Trump's unfitness to refuse to play what he or she regards as a constructive role in public service. That said, I'd welcome a Flake primary challenge!

Posted by: Rick Garnett | Jan 19, 2018 10:06:25 AM

Anonandoff: "Orin, I would think that would be his point exactly. Flake has compared Trump to the threat of Stalin, and Republicans to Stalin enablers. If Flake really believes him to be that much of a threat, then there is plenty that he should do to head that threat off."

If anyone here really thinks Trump is comparable to the threat of Stalin -- a monstrous dictator responsible for the intentional deaths of several million of his own people through starvation and murder -- I hope that person would do more to stop Trump than to comment about it on Prawfs.

Posted by: Orin Kerr | Jan 18, 2018 10:09:49 PM

I second anonandoff's remarks and find some of the responses confused.

If Trump is like "Stalin," wouldn't Flake have an obligation to use his vote and other powers as a senator past mere words to put pressure on him? To underline how serious Flake thinks "Stalin" transgressed appropriate norms and practices? He need not "abandon" his conservative values in the process, especially since Flake can pick his spots there. Or, only act in the short term. In fact, by promoting conservative values generally, Flake would be promoting the higher good there.

The reference to "Jeb Bush" is confused. The point is that Jeb Bush is not in power. If he was, supposedly, we wouldn't need this special response to these transgressions. If a person is so bad that he is compared to Stalin, yes, you might have to in at least a limited way try to stop him by hurting your own short term goals. A few judges, e.g., in the short term is not soooo important as compared to addressing "Stalin."

I'm also not sure about whose "area" this is. The general principle being suggested seems basic and not requiring expertise to opine on.

Posted by: Joe | Jan 18, 2018 8:50:14 PM

Howard, perhaps, if the Honorable Senator from Arizona was truly concerned about President Trump's misguided view of his (Trump's) authority, he (Flake) would introduce a motion to censure the President. But as you note, Senator Flake is as they say in Texas, "all hat; no cattle". Speeches from the well of the Senate make good visuals, but do not accomplish much.

Posted by: Paul | Jan 18, 2018 7:37:06 PM

Orin, I would think that would be his point exactly. Flake has compared Trump to the threat of Stalin, and Republicans to Stalin enablers. If Flake really believes him to be that much of a threat, then there is plenty that he should do to head that threat off. Flake is a member of the judiciary committee, which the GOP holds by only one vote. He could stall all of Trump's judicial nominations until Trump agrees to address *GOP* criticisms of Trump - i.e. stop attacking the press, investigate Russian interference with elections, etc. Flake could also join with Corker, or McCain, to stall all sorts of the GOP agenda, until Trump is less of the existential threat that Flake claims him to be. Until Flake does any of these things, he is either saying that a) the threat of a Stalin like figure in the Presidency is not as important as getting the GOP agenda (i.e. "good public policy") passed or b) he is not serious about Trump as a threat.

Posted by: anonandoff | Jan 18, 2018 7:35:51 PM

So your complaint is that when what Trump wants lines up with what Republicans want, Flake backs what Trump wants?


A Republican backing a measure that lines up with Republican policy preferences is surprising and/or vexing to you?

Do you somehow believe that Sen. Flake should abandon Republican ideals and goals because "Trump is teh badzorz"? Do you think he should start backing Democrat policies because you don't like the president?

Posted by: Scott Jacobs | Jan 18, 2018 7:32:49 PM

Yeah, I don't get this post either. Jeb Bush would have supported virtually all of the bills that Trump's supported and easily could have made most of the nominations that Trump's made (maybe not some of the executive-branch nominations, but I don't understand how a vote against Rex Tillerson is the sort of action that Flake's views about Trump call for). Flake's problems with Trump have nothing really to do with Trump's policy preferences, or at least those policy preferences that he's actually acted on. I imagine Flake would vote against a Trump-inspired bill to "loosen up the libel laws," whatever Trump means by that, but so far we haven't seen Trump-supported legislation that reflects what Flake objects to. So I don't get how Flake's voting conduct undermines his critique of Trump, because his critique of Trump has nothing to do with Trump-supported legislation or Trump's nominations.

Posted by: Asher Steinberg | Jan 18, 2018 7:29:00 PM

Howard, this isn't my area, but I'm a little confused about what you think Flake should do. I take you to be criticizing him for voting consistently with his view of good public policy (which from what I understand is pretty conservative). Is the idea that Flake should go against his idea of good public policy in the short term because it likely would be outweighed by the benefit of good public policy in the long term by hurting Trump?

Posted by: Orin Kerr | Jan 18, 2018 6:48:52 PM

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