Judge Laurence H. Silberman has been a respected conservative judge for more than 30 years on the D.C. Circuit and has extensive executive branch experience as well. Alarmed by the erosion of long-standing institutional practices and norms concerning the appropriate behavior of governmental actors, he took to the WSJ op-ed pages and a recent speech to express concern about the way our most important legal institutions are starting to be deformed by today’s political environment and to “bend in the political winds.”
Although Judge Silberman does not use these terms, I would say what he is describing is the way in which we have entered an age of existential politics. When politics is perceived to be existential (by one side or the other or both), the very identity of the country, or even possibly its existence in a recognizable form, is perceived to be at stake. Politics is no longer a matter of ordinary disagreement about values and policy. Losing an election is no longer a disappointing result that can be lived with in the knowledge that there will be other elections and other battles. The stakes are perceived to be much too high for that. The outcome of elections are no longer seen to be potentially reversible in the next election. This election is “our last chance” to keep our country as we know it. Or the outcome of this election will destroy our country as we know it.
Once politics is widely perceived as existential, actions previously thought out of bounds become easy to justify. Given the ends perceived to be at stake, many previously unacceptable means are justified. Existing laws might still be complied with, but healthy democracies depend as well on a thick infrastructure of conventions, well-developed traditions, and norms that are at least as important as the formal legal architecture of government. Yet if “this much is at stake,” the pressure and temptation to override those conventions, traditions, and norms becomes overwhelming.
This is the framework within which I understand the two specific examples that Judge Silberman raised. First was Justice Ginsburg’s public comments about Donald Trump’s candidacy, which Silberman calls “as openly political as any justice has been in my memory — perhaps ever.” Although Justice Ginsburg later apologized for crossing this line, the temptation no doubt came from her perception that Donald Trump posed a unique, even existential, threat to American democracy. The second was the FBI’s performance throughout the Clinton email investigation. Part of the reason James Comey appears to have made his 11th hour announcement of a re-opened investigation was to preempt leaks from lower level FBI officials — who no doubt believed those potential leaks justified given their perception of the unique threat Hillary Clinton posed to American democracy.
Existential politics does not just tempt individual public actors to override the constraints that traditionally bound their roles. It also threatens to undermine the perceived integrity of the institutions in which these actors operate. Indeed, Judge Silberman believes “[James Comey’s] performance was so inappropriate for an FBI director that I doubt the bureau will ever completely recover.”
If many people, on either side or both, continue to believe that American politics today is indeed a matter of existential stakes, we can expect to see more of the corrosion of the long-standing conventions, institutional self-understandings, and norms that have, till now, governed American institutional practices.
Judge Silberman concludes:
As I ponder the damage done in 2016 to both institutions, the Supreme Court and the Justice Department, I worry that it will be irreversible—that in the future, Supreme Court justices will be induced by aggressive reporters to make injudicious remarks, and that attorneys general (and deputies) will have difficulty limiting the FBI to its investigative role.