My pet theory for why Ted Cruz has taken to talking smack at C-list actors on Twitter lately is that he realizes he’s being out-populist-ed by the likes of Hawley and Tom Cotton and isn’t sure what he can do to change that. All three are running for president in the next cycle but Cotton and Hawley have each done a better job this year of signaling to the nationalist right that they’ll use state power to wage war on their enemies for them. In Cotton’s case that means literal war: He was the loudest Republican voice in support of using the U.S. military against looters during the George Floyd protests, knowing full well the risk that would pose even to peaceful demonstrators. Hawley’s focused on regulating Big Tech for its anti-conservative biases and more recently went to the mat for preserving the names of Confederate traitors on U.S. military bases because to do otherwise would be divisive or whatever.
They’re playing to win. Cruz has also made noise about Big Tech, arguing that under Section 230 of the Communications Decency Act companies supposedly forfeit their immunity from defamation suits if they moderate content, but (a) that’s not true and he certainly knows it and (b) Hawley is more closely identified with wanting to regulate the tech industry than Cruz is. Cruz’s problem is that the brand he claimed for himself before 2016 — Mr. Constitutional Conservative — is no longer in fashion among the grassroots voters he courted and now he’s having to reposition as a different kind of populist ahead of 2024. But what kind? Cotton’s the belligerent nationalist, Hawley’s the culture warrior and regulator, Cruz is … what? He’s the guy who talks smack to C-list actors, for now. He’d better find a new niche for himself or else he’s going to get run off the field in four years. Imagine what good he could do if he accepted that his presidential moment is past and contented himself with being a solid conservatarian senator.
Anyway, that’s a long introduction to this latest floor speech by Hawley, which is the sort of thing you would have expected Cruz to say on the Senate floor circa 2015. These comments are aimed at an array of Trump constituencies — social conservatives, anti-establishmentarians general, even Federalist Society law nerds who were angry yesterday to see Neil Gorsuch, of all people, decide that the text of a law that was passed nearly 60 years ago limits an employer’s right to fire someone for being gay.
Sen. Josh Hawley had a stunning view of the Supreme Court’s decision extending new protections to LGTBQ workers: It “represents the end of the conservative legal movement.”…
“Every honest person knows that the laws in this country today, they are made almost entirely by unelected bureaucrats and courts. They are not made by this body. Why not? Because this body doesn’t want to make law,” Hawley said. “This body is terrified about being held accountable for anything on subject.”…
Explaining that the religious right supports the GOP party bosses in return for judges that protect religious freedom, Hawley concluded that “the bargain that has been offered to religious conservatives for years now is a bad one. It’s time to reject it.”
“We’re supposed to keep our mouth shut while the party establishment pursues ruinous trade policies. We’re supposed to keep our mouths shut while those at the upper end of the income bracket get all the attention,” he said. “Because there would be pro-Constitution religious liberty judges? Except for they aren’t. These judges don’t follow the Constitution.”
He’s entirely right about Congress’s timidity and impotence. It got lost in the uproar over yesterday’s decision that the Democrats could have easily amended the civil rights laws to outlaw workplace discrimination on the basis of sexual orientation when they enjoyed total control of government in 2009. But that was still years before Barack Obama and various other high-powered liberals were willing to admit publicly that they supported legalizing same-sex marriage, so fearful were Dems of scaring off parts of the new majority they had assembled with sudden moves towards equality for gays. By the same token, Republicans *could* use yesterday’s decision as part of their own campaign message this fall — “give us a congressional majority and we’ll reinstate the right to discriminate!” — but that would be a bad move for two reasons. First, Americans overwhelmingly oppose letting companies fire people for being gay. A YouGov poll last year found the public split 11/73 on the issue, with Republicans at 18/65. Second, and further to Hawley’s point, campaigning on the issue would oblige the GOP to do something about it if they won back the House. And the last thing the GOP wants to do anymore is legislate.
So go figure that Republican senators sound pretty happy about Gorsuch’s opinion today. He took the issue off the table for them! Now they don’t have to worry about Pelosi passing a bill to end workplace discrimination and then pressuring Republicans to choose between annoying social conservatives by passing it and annoying the rest of the country by blocking it.
“It’s important that we recognize that all Americans have equal rights under our Constitution,” Sen. Deb Fischer (R-Neb.) said. “I’m fine with it.”…
“It’s the law of the land. And it probably makes uniform what a lot of states have already done. And probably negates Congress’s necessity for acting,” said Sen. Chuck Grassley (R-Iowa), who ran the Senate Judiciary Committee during Gorsuch’s confirmation. He said he was not disappointed by Gorsuch’s decision. Besides Gorsuch, Chief Justice John Roberts also joined the court’s Democrat-appointed justices in the 6-3 ruling…
“It demonstrated Gorsuch’s independence,” Senate Majority Whip John Thune said. “The country’s obviously changed a lot on that issue. And I assume that he looked at the facts and the law and that’s the conclusion he came to. And that’s what, when we nominated him and confirmed him, we wanted him to.”
It’s passe to say that SCOTUS is effectively a super-legislator. The salient point is that many members of Congress are happy to have SCOTUS act as a super-legislator, especially if the Court ends up resolving an issue about which a party’s base feels strongly but a majority of voters feel differently. That’s a lose/lose for a legislator. Let the judge handle it! That’s the mentality Hawley’s criticizing, aptly.
One thing about this, though. By declaring that the conservative legal movement has failed (a fine, dramatic, anti-establishmentarian flourish), he’s inescapably accusing Trump of having blown it by picking Gorsuch. Right, right, he can try to shift the blame by claiming that our poor president was merely given bad advice by the treacherous conservative legal movementarians who advised him on the nomination. But when push comes to shove he’s saying that Trump — and Trump’s advisors — can’t be trusted to secure conservatives’ interests with their judicial picks, which was *the* argument on the right for turning out to vote for Trump in 2016 even if you disliked him. I saw social cons grousing on Twitter yesterday that Gorsuch’s decision would cost him the election this fall because now evangelicals had no reason to show up for him. That’s not true — in reality it won’t cost him a single vote — but the underlying critique, that the Trump populist revolution hasn’t delivered on its promises, is a potent set-up for Hawley’s run in 2024. He’ll never be able to make that critique explicitly for fear of angering Trump, but if he can start making it implicitly now it might give him an inside track in the 2024 primaries.
Make no mistake, though. Had he been in the Senate at the time, Hawley would have voted enthusiastically to confirm Gorsuch. Just like he would have voted enthusiastically to confirm John Roberts, for whom he clerked — and who was also in the majority of yesterday’s gay-rights decision. President Hawley’s not going to do anything for you on judges that President Trump hasn’t.