Within the Margin

Before I offer some quick thoughts on Trump and Priebus declaring war on the 9th Circuit Court of Appeals this week, I present three pieces of information:

• The 9th Circuit’s overturn rate is above average, but it’s not the highest in the country; it’s third, behind the 6th Circuit (Kentucky, Michigan, Ohio and Tennessee) and 11th Circuit (Alabama, Florida and Georgia).
• The sanctuary city ruling didn’t even come from the 9th Circuit per se, but from a judge on the 5th District Court.  A piece of the 9th Circuit, yes – one of thirteen district courts in that circuit – but not the court itself. The 9th would hear the case on appeal. I’d be happy to excuse the imprecise language but for the fact that this administration is so fast and loose with verbiage and would do well to speak with specificity when they’re talking about unleashing massive judicial changes, such as breaking up a circuit court.
• Conservatives who are “in the know” like to reference the out-of-control 9th to excuse away rulings they don’t like as the doings of some granola-chomping eco-terrorist toiling away on a commune in northern California. The states I mentioned above in the 6th and 11th don’t quite serve the same function in their hyped-up fantasies; you don’t often hear conservatives talking about the need to rein in the un-American extremists of Kentucky and Alabama.

So when Priebus says the 9th Circuit is “going bananas,” and Trump says he is considering proposals to break up the 9th, as “many people” support, they’re speaking in code to activists on their side who accept as gospel truth that the 9th Circuit is beyond the pale and that drastic action is required. Never mind that the 9th Circuit isn’t as far out of the so-called judicial mainstream as they imply, or that changes to the 9th Circuit would shake up courts in Idaho and Wyoming that are a bit harder to caricature than San Francisco, or that it would require 60 votes in the Senate – requiring at least 8 Democrats, and possibly more if western Republicans have parochial reasons to avoid disruption, or that the country has historically held the federal judiciary sacred and it’s one of the few things I can imagine that could actually drive Trump’s approvals even lower. He is conceivably foolish enough to imagine that the successful confirmation of Neil Gorsuch means he can do no wrong when it comes to remaking the courts, but his language sounds radical and drastic (“break up” a court), and the general public may well agree.

And so what this really amounts to…is a conversation with his base. Trump is talking to the 46% of the country that voted for him, and ignoring the rest. There are no national discussions in this administration; he’s only interested in the folks that buy into certain truths about conservative activists, particularly judicial activists. He only wants to speak to those willing to speak in his language; there is no outreach to the other 54%. The framing of the 9th’s rulings as radical will bounce around the conservative echo chamber, and restructuring courts will become accepted wisdom among that 46% as a viable, necessary strategy.

I know consensus is impossible at this time, and sometimes there’s little value in going through the motions of pretending to seek or obtain it. But in the first hundred days, at least, can we uphold one of the ideals of this office? Just one?