For those Republicans who are college educated, which includes most of the plutocrats, officials in high political office, and suburban women, it must be evident now that Trump is simply a grifter, one in deep doodoo, because of the huge amount of debt he is carrying. Even people at Fox News other than Chris Wallace must be aware of this. And, one wonders, whether regular viewers of Fox News who don't have a college degree are also aware of this.
There is a tendency to want to deny unpleasant facts. I don't know whether that tendency has a negative correlation with educational attainment or no correlation at all. But if there are enough such people who are not in denial, they have to be asking themselves, how did we ever let this get so far? Suppose what is known now about Trump's finances actually had become known in late 2015, before the Primary season kicked off. Would Trump have been the candidate chosen? Would any other Republican possibly have won the election? It seems that because of the prior affinity via The Apprentice, Trump supporters had intense loyalty to him, where they had no such loyalty to any other candidate. On the other hand, the Plutocrats probably wouldn't have gotten in line with Trump in this circumstance, nor would the likes of Mitch McConnell and Paul Ryan. The chance of a major embarrassment that would permanently damage the Republicans would have been too great.
I'm not a lawyer, so please don't take my word for it, but it seems to me that by Trump not releasing his tax returns during the 2016 campaign constitutes fraud and, if so, the election should be nullified for that reason. I have previously argued that the election was stolen. Mitch McConnell not having the Senate take up President Obama's nomination of Merrick Garland for the Supreme Court was the main transgression, but Russian interference in the election surely counts as well, and the latter was, of course, tied to Trump trying to manipulate the outcome. In retrospect, it is obscene to recall the chants of "crooked Hillary." To borrow part of a line from Abraham Lincoln, you can fool some of the people some of the time. Who will now be shouting "crooked Donald?"
We were taught in grade school - to the victor go the spoils. Many treat that as literally true. But when it becomes clear that the victor cheated, or others cheated on behalf of the victor, should we expect the spoils to be what economists call "sunk costs." This term means the costs are not recoverable, since the investment can't be reversed. Does that hold for all the judges and the two Supreme Court justices who have been appointed since Trump became President? Mitch McConnell has developed a reputation of ramming the judicial nominations of President Trump through the Senate. I believe there is no doubt that the unholy partnership between McConnell and Trump is based on the idea of McConnell's support of Trump as President, in spite of the transgressions, as long as Trump continues to nominate very conservative judges, whom McConnell then could steer through the Senate. This bargain would be considered unsavory, even if Trump's election was on the up and up.
Now let me turn to the word honor, in the title of my post. Suppose you are a person who believes in honor as important. Then suppose further that you are part of the spoils, in the case where the victor won in a dishonorable way. That is too easy, so let's complicate it more. Suppose you have subsequently been assigned to a position that you've aspired for intensely and for quite some time. There is an evident conflict between doing the honorable thing and acceding to your own aspirations. What do you then do?
There is an idea in economics associated with Paul Samuelson called Revealed Preference. The standard economic theory predicts choice from preferences and economic constraints. Revealed Preference reverses that. After observing choice and understanding the constraints, one can make some strong inferences about preference. So, what of all those judges and justices who were appointed while Trump has been President, now understanding that his election is tainted? Where does the honorable path take them?
There is a further thought to work through, particularly on judicial cases where the preferred outcome divides strongly along political lines. And let's focus on when the case reaches the Supreme Court. Now I don't know this, because I'm not a legal scholar, but I'd hope that many of the justices would have a meta preference that carries across the various cases. That is, to have the American people maintain a respect for the rule of law. And that requires that there is a process for making decisions in contentious cases that both sides can respect as the right way to arrive at a decision. If that process is shortchanged, then the winning side in the heat of the moment might not care. But the losing side will begin to question not just that decision, but many other decisions by the Supreme Court as well, and respect for the rule of law will suffer as a consequence.
There has recently been an idea floating that Trump nominated a candidate for the Supreme Court to succeed Ruth Bader Ginsburg because he expected to contest the result of the election and, as with Bush vs. Gore, the determination would end up going to the Supreme Court. While Chief Justice Roberts is conservative, he is not reliable (from the Trump perspective) regarding how he would decide this case. So Trump wanted 5 reliable justices: Clarence Thomas, Samuel Alito, Neil Gorusch, Brett Cavanaugh, and Amy Coney Barrett (if she is confirmed) to constitute a clear majority who would decide in favor of Trump. That political calculus is straightforward enough. But what of the ethics therein?
As a non-lawyer, I'm not sure of the full set of circumstances under which a Justice should recuse himself or herself from a case, but it seems to me that those Supreme Court Justices appointed under Trump would be obligated to do that if the Presidential election eventually went to the Supreme Court. If that were true, however, there wouldn't be as strong a reason to immediately nominate a successor to Ruth Bader Ginsburg. There is another quite different reason for doing so. If control of the Senate will change with this election, from majority Republican to majority Democrat, then getting that Republican favored nominee in now make sense according to a political calculation.
Now let me introduce one more idea from economics/game theory. This is called a credible commitment. It means taking a costly action now to force a certain decision in the future. In contrast, talk is cheap and therefore it is not credible. A promise to recuse oneself in the event of x may not be credible. For when x has happened the justice may have a change of heart and opt not to recuse himself or herself. In contrast, resigning now would be credible. Having resigned, there would be no way for the justice to render an opinion on the case in the future when it comes up
Would resigning now be the honorable thing to do, both for justices of the Supreme Court appointed under Trump and for judges in lower Federal courts appointed in the same interval? I mean this to be a question to ponder, not one with a ready answer. Also, from the point of view of predicting such outcomes, I would predict that no such resignations will happen.
However, I know many people who feel now that America is going to hell in a hand basket. Trump has dramatically accelerated this decline. Creating real surprise by going against the forecast in a way that is personally costly but also evidently aimed at respecting the rule of law, might be a way for America to get past this dreadful moment. For that to happen, Trump needs to lose this election and the Supreme Court needs to certify that. Sacrificing the national well being so as to get rid of the Roe v. Wade decision, also can't happen. It's clear that has been motivating the recent rapid pace of Federal judicial appointments. But it is equally clear that the myopic focus on this objective is bringing the country down.
I used to have conservative colleagues in the economics department who would help me to understand their point of view. I don't have that now and have no sense how other conservatives think about this. I just have this general sense. If one side thinks it is winning, it's actually that all of us are losing, but those who feel they are winning are focusing on myopic ends, rather than the overall picture. I should also add that the liberal versus conservative among the economists I'm referring to was about laissez-faire versus regulation, not about Roe v. Wade. I could argue with conservatives then. I can't argue with conservatives now.
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