I’ve no argument with Millhiser’s underlying thesis: A lot of (great) judges have been appointed during Trump’s administration.
The causes for this are obvious. There’s a Republican in the White House, and Republicans control the Senate, so the appointment process is well‐oiled. In addition, past Senates (under both parties) changed the body’s rules so as to ease the confirmation of a president’s nominees.
Where I take issue with Millhiser is with his understanding of the judicial power. He writes:
In an age of legislative dysfunction, whoever controls the courts controls the country … [Judges] have become the most consequential policymakers in the nation … The judiciary is where policy is made in the United States.
This can’t be right.
By its nature, the judiciary is weaker than either of the political branches. As Hamilton wrote in Federalist 78, courts have “no influence over either the sword or the purse,” unlike Congress and the president. Approvingly, Hamilton quotes Montesquieu’s assertion that “Of the three powers … the judiciary is next to nothing.”
Millhiser might reply: “Well, ‘next to nothing’ in the judiciary is more than ‘doing‐nothing’ in Congress.”
And, perhaps, he’d have a point. But he’d still be mistaken overall, because the president is the undisputed policymaker‐in‐chief in modern American government.
Last week, in The Hill, I used the ongoing impeachment proceedings to make this very point:
Why have the House and Senate, through the impeachment process, become willing cogs in the oily machinery of the 2020 presidential contest?
The answer involves a tectonic shift in American government, from a functioning separation of powers to one that is out of whack … Over the last century, Congress has given away, or “delegated,” much of its policymaking initiative to the executive branch … Through these grants of authority, Congress created an alphabet soup’s worth of regulatory agencies collectively known as the administrative state.
As … Congress lost the capacity to oversee its delegations … modern presidents have seized undisputed supremacy over the administrative state by increasing control over agency budgets and regulatory management.
Policy now flows from the White House.
Congress couldn’t pass immigration reform, but President Obama achieved the same results with DACA. Congress denied President Trump funding to build a border wall, but then he exercised his delegated authority to declare an “emergency” and funded the wall unilaterally.
In this context—where the president calls the shots and Congress is beholden to party leadership—half the legislature always is unbothered with unbound executive authority whenever “their guy” occupies the White House.
It’s a vicious feedback loop. The more powerful the president becomes, the more our party‐centric Congress rationally believes that the Oval Office is the most efficient means to implement the planks of a given party’s platform.
The full article, titled “This Isn’t Your Founding Fathers’ Impeachment,” is available here.