The Illusion of Institutions – Ep. 1.1

In this second episode of None Sense, I respond to the following statement by Michelle Goldberg: It’s a source of constant astonishment to me that the country has handed over the means to destroy civilization on this planet to an unhinged lunatic who lost the popular vote and was installed with the aid of a hostile foreign power. It’s such an epic institutional failure that it calls everything we thought we knew about this country’s stability into question.

What’s explained at length in the podcast is summarized like this: if we’re expecting institutions like the judiciary to save us from the Trump presidency, we’re doomed.


Hi, I’m Jaime Escuder and welcome to this second episode of None Sense.

Today, I’d like to talk about institutions, or rather the appearance of institutions. And I was led to this topic by something I read again in “The New York Times.”

Remember when someone asked Sarah Palin what her news sources were and she clearly had never read any news in her life because she couldn’t name a single, like, news outlet? So, forewarned, my news sources are as follows: “The New York Times,” “The New York Times,” “The New York Times,” “The Guardian,” you’re gonna be seeing a lot.

So, if you read my show notes, you’re gonna be seeing lots of links to New York Times articles and The Guardian articles. Also, NPR, although, I gotta tell you, NPR, the website, or the way they do their print journalism, and this may be just because they’re fundamentally an audio outlet, a radio outlet, their print is not so great, but the NPR and the BBC. Also, the “Washington Post.”

But my primary sources of news and this is because they’re well-thought out and I really believe they have integrity in the sense of, they don’t, well, there’s no fake news, I mean, they actually fact-check, etc.

And I actually personally know this to be true and I’m saying my main ones are “The New York Times” and “The Guardian,” and I know the “Washington Post” does and I’m sure the BBC, I know the BBC does, these are reputable news outlets. I’m not going to be, I’m not much of a “Fox News” reader because I think “Fox News” is terrible news, just junk, terrible, poor quality news.

I know that “The New York Times” does fact-checking because I was actually mentioned in an article once that appeared in “The New York Times” and I remember being called by the fact-checker and asked to verify the quotes that had been attributed to me and things like that.

So, I was reading “The New York Times” as I want to do and there was an interview with a new columnist there named Michelle Goldberg, here’s a quote from Michelle Goldberg (and I will have a link to this article in my show notes): “It’s a source of constant astonishment to me that the country has handed over the means to destroy civilization on this planet to an unhinged lunatic who lost the popular vote and was installed with the aid of a hostile foreign power. It’s such an epic institutional failure that it calls everything we thought we knew about this country’s stability into question.”

And what gave me pause about that, what made me think about that was that this person, Michelle Goldberg, who’s apparently, obviously, very intelligent, highly educated, very thoughtful person, is acting as though she actually, not only believes in institutions and that they exist and that they actually function, but that they have the ability or the will to function when in fact there really is no such thing as an institution. There’s just people and then there’s an edifice that we put in front of those people to inspire awe or fear or reverence in the hope that they’ll obey whatever comes from the institution, but there really is no such thing as an institution, unless the people who populate it have integrity and character and are all of the things that would function well in a society even if they weren’t associated with an institution.

So, I want to talk about what I think is probably the most important institution in a democracy and in our government, and one of the most visible and one of the least understood, and one of the best at creating an aura of importance and wisdom and almost, sort of, above the foreignness but is at the same time the worst at actually being that and as an, in actual fact a very manipulable, weak and unreliable institution and I’m talking about the judiciary. When I talk about the judiciary, you know, the judicial branch, out of necessity, has done a marvelous job of creating this veneer that I was speaking about of majesty and, sort of, arising from another place, a place of governance and inhumanity in the sense of almost being, like, a natural force, so let’s, like, look at a courthouse, for example.

You know, a federal courthouse can be a very imposing building, you go inside and it’s a very intimidating place, there’s gonna be marble and just the very architecture of the courtroom. The judge comes out and he’s gonna be on an elevated thing, everyone, just by nature of the architecture, or she’s gonna be on an elevated thing, is gonna be required to look up, actually physically look up as though you’re looking up…like many churches are designed, they wear the black robe which creates an air of inscrutability and I think correctly, dignity and then there’s all these, sort of, processes, you know, there’s a big knock on the door before the judge comes in and everyone is supposed to stand and there’s all this pomp and all this stuff.

And it’s a very, as I say, it’s a very intimidating imposing cultural, by design, cultural experience walking into a courtroom. When I say cultural, I mean that a courtroom has a certain culture and the entirety of the culture is designed to make you feel minimal so that the person walking in gets the sense that they are entering an alien world which they don’t fully understand, and in which they posses very little power. And the other part of it is, it’s designed to make one believe that the pronouncements that come from the judge and that the judge, the person of the judge, his or herself is almost of another spiritual plane and of a higher order of wisdom.

Now, the truth is, all judges are actually people and I’d like to tell a couple of stories to, kind of, illustrate the way I think the reality of the judicial system in opposition to the way it presents itself, and then get back to Miss Goldberg’s’ statement about how it’s, how the election of Donald Trump and his continued debasement of the office of the President of the United States constitutes an institutional failure. And I think she’s just expecting too much of the institution itself and then I want to talk about why the people in the institution of the judiciary, in particular, are failing.

All right, the first example comes from, and I hesitate to admit this because I’m not an Ayn Rand fan at all, in my angry youth, stupid youth, I read all her stuff and was highly influenced by it but I don’t subscribe to any of it anymore. But this was a useful story that I believe came out of the beginning of Atlas Shrugged and it’s a story about one of the characters, he grows up and there’s a certain tree in his yard or in his parents’ farm or whatever that was a very big, strong oak tree and he used to play on it and he used to climb it, etc., etc.

Well, one day, it was strucked by lightning and the entire tree collapsed and he went over to the tree, shocked, that something that appeared to be so robust and long-lived and vibrant and vigorous would have collapsed so easily. And he saw that, in fact, the tree had been rotten from the inside out and was hollow on the inside, and so the outside appeared to be healthy and strong but in fact the tree was diseased and on the brink of collapse.

The second story and I don’t really quite remember where I heard this one, maybe it’s not even true but I think it’s a good analogy, is the story of a guy who got on the New York subway system with one of those long fluorescent lights, like, one of those ones you see in an office building that looks like a pole on a subway pole to keep you from falling over. So, he gets on with one of these lights and then someone else gets on thinking that in fact it is a pole and grabs it and holds on to it. Now, even though in point of fact the thing, the pole wasn’t attached to anything it was completely unsafe, it was just the one guy holding it.

And then before the guy knew what was going on, several people had gotten onto the subway and grabbed hold of this thing and finally when he gets to his stop where he’s supposed to throw the light off, he doesn’t know what to do or how to tell the people that in fact they’re not, what they’re holding onto and that what they think is a stabilizing force in their lives is in fact nothing but a light that’s going to collapse, that could collapse at any moment. He simply just lets go of the light and then gets off the train, leaving the unsuspecting unaware people holding the pole which is not actually a poll and which is actually not at all anything that’s safe or can be relied upon.

So, I think those two examples the thing that appears to be strong on the outside but is in fact very tenuous and not at all what it appears to be in terms of strength, that’s the judiciary. And I’m going to give you a couple of examples and in order to understand these examples, you actually have to understand the role that the judiciary is supposed to play in our government and that is in fact the role of the pole in the subway system. In other words is supposed to be something that you can actually rely upon or count upon to keep essentially you and the ship of state upright in times of turmoil and turbulence.

Now, how do we know that in fact it’s not doing that? I have a case and a name, so the first, the case is Bush v Gore. Bush v Gore was a political decision. That’s, kind of, really the worst possible insult I can hurl at any court and, of course, I’m talking about the United States Supreme Court. But the one thing that courts are not supposed to be and cannot be if there are to maintain their role and a functioning democracy is political. They are supposed to do the right thing even when it’s not popular. They are always supposed to do what’s right and never what’s easy again, to quote Dumbledore and if you’ve listened to the previous episode, you know, I kind of, I’m a big Harry Potter fan.

When they must choose between doing what’s right and what’s easy, they must always do what’s right and they must never act out of their own personal interest and by that, I mean, the judges own personal interest. And yet, Bush v Gore was a case that was decided because the way it was decided handing the president, the presidency to George W. Bush. It was decided simply because there was a majority of Republicans conservatives on the Supreme Court as opposed to a minority of Democrats and the court voted along political lines and gave the presidency to the candidate that the majority of Justice has wanted to see in the White House. And the fact that he had lost the popular vote didn’t matter, the fact that the Florida Supreme Court had decided differently and that there’s a long line of cases that say that the federal government isn’t supposed to involve themselves in matters of state law, etc. I’m not going into all the nuances of that.

But the point is, the Supreme Court should never have taken the case, if it was a real court, it should never even have heard the case and certainly it shouldn’t have had, have decided that the way that it did. Now, if you try to read the Bush v Gore opinion, of course, that’s not going to be spelled out in there, it’s not going to say, we find that George W. Bush won the presidency because I, Antonin Scalia, like the idea of having him as president, he’s the President for me and go George. It’s not going to say that because courts are not supposed to be political actors which, which it was. And so it’s couched in all sorts of legal language that any person really would struggle to understand and it’s because it’s not really the language that was used to decide the case. So, it’s a very inscrutable case that’s easily understood in the sense that it was a political decision.

Now, I’m not the only one to say that the Supreme Court is a political court, there’s a famous judge who just announced his retirement, another federal judge named Richard Posner, who himself said that the United States Supreme Court is not a real court, it’s a political court.

The second example that I want to give as to why the courts as an institution are unreliable, is a guy named Neil Gorsuch. If we had a legitimate court system in this country, if we had a legitimate process that led to the nomination of judges, Neil Gorsuch would not at all be on the court right now. Instead, the court would be populated with a guy the most recent nominee would be, justice would be a guy named Merrick Garland.

There’s supposed to be a process by which people become Federal judges and Supreme Court judges, you’re nominated by the president and then you’re sent on to the Federal courts, sort of, with the advice and consent of the Senate. Of course Barack Obama nominated Merrick Garland nearly a year, his nomination was pending, a guy named Mitch McConnell who’s a senator from Kentucky and a very un-American person, held up that nomination forever so that after the election, a Democrat would lose the election and then of all people, Donald Trump, decides who gets to be on the United States Supreme Court. And that guy happen to be Neil Gorsuch, who absolutely has no legitimacy as a justice because of the situation and the process by which he was sent to the court and this is how it is in America.

And yet we are counting on these courts to do things that are going to make them unpopular which is in fact their job, it is their role as I say, to do the unpopular thing even when it’s not the easy thing to do. And we’re counting on them to do that role and I am telling you that as an institution, we can, the only thing we can count on them doing is failing and there’s two reasons for that. The first is the one that I already gave you, which is that the court has been packed with political actors who are not going to decide the cases with integrity but are only going to decide the cases in accordance with their own personal beliefs. In other words, who are going to fail as judges and we know this is going to happen because of cases like, for example, Bush v Gore.

The second reason is this, there’s a dirty little secret with regard to the federal judiciary that judges are afraid people will realize but that they themselves fully understand and that colors everything that they do as a judge and that is this. Courts don’t actually have any power and in particular, they don’t actually have any power to enforce their decisions. [See, Federalist 78, in which Hamilton notes that the judiciary, “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”] So, they will not risk making a decision that they think has a likelihood of not being obeyed. Now, when it’s with regard to criminal defendants, you know, like, for example, the people that I represent here who are not U.S. citizens and have no education and no sophistication and have, and don’t know how to read or write and, you know, the courts can of course manhandle those people and do whatever they want to those people without any sort of fear of not being able to enforce their decisions because those people are pathetic people without any power.

But that’s not really the most important type of person that a court is supposed to be trying to wrangle into proper behavior or sort of offer guidance to. Really, the most important rule for courts is to make sure that the powerful stay within the lines of constitutionality and legality and appropriateness and humanity and all the things that we hope the judges would care about, and that is the absolute last person that a court will do that to. And the reason is, as I say, because there’s a likelihood that it won’t be obeyed.

So, let me give you an example, we have this business with travel bans that have been going up and down the Federal courts ever since Donald Trump went into office and of these bans keep going in front of the courts, and the courts are not and will not shoot them down automatically. They’re not going to do it because there is the risk, the real risk that Donald Trump will simply not obey.

So, for example, let’s say that the court were to issue a ruling saying, “Nope, you have to let all Syrians into the country that that’s, it’s an unconstitutional religious discrimination or race discrimination bias to keep Syrian refugees out, you gotta let them in.” In that instance, it’s very likely that Donald Trump would say, “No, we’re going to ban them anyway.” Well, now what? Then you find yourself in a situation, like, when John Marshall ruled that the Trail of Tears should not happen and Andrew Jackson famously said, Andrew Jack, “John Marshall has made his decision, now let him enforce it.” And then the Trail of Tears, as we all know happened. And all that did was even further undermine the court’s legitimacy by the President demonstrating that he doesn’t actually have to listen to the courts.

So, Bush v Gore is another example because the court was safe in delivering the election to George W. Bush, because the court knew that Al Gore was not a crazy person and that he had some sort of respect for the judicial process and government and, therefore, he wasn’t going to call for revolution like Donald Trump might very well do. Or maybe even call for the arrest of the justices who ordered something that he doesn’t think is the right thing. The critical point is that this is true even if, that the courts will never do this, even if they should in order to fulfill their role as interpreters of the law and the Constitution who need to make sure that those laws and rules are enforced. Which means that they are not functioning as an institution.

And so, the idea that the existence of Trump of the presidency or the way things are going in the continued circus of horrors that is the Trump Administration, that it’s being allowed to go represents an institutional failure is really not to say anything more than that the people who are in that institution are failing. I don’t say that in a bad, like, “let’s give up, it’s all hopeless” way, I say it in order to turn the lens away from the institutions and recognize that there are no institutions, there’s just people in there that we really can’t count on and turn the lens towards ourselves and say it’s people who are failing, that means that the problem can also be fixed by people.

And so, we can act in a way where we don’t abdicate our responsibility to be responsible citizens to the things that are in place that are meant to keep the country functioning properly like the judiciary, like the executive branch. We have to look to ourselves and one of the things to do is to look carefully at the people in the institutions and then to act ourselves, in the way that we would have hoped that they would have acted and to call people out on their hypocrisies and on their failures. If there’s any one point of this particular episode of the podcast, it’s this, you cannot just count on the institutions to save you, institutions don’t exist. There may be wonderful rare people with integrity within those institutions and you’re counting on those people to do their part, but as an institution itself, even though it’s in a fancy building, even though the clothing the people wear there, the language is very high falutin and very imposing and all that stuff, none of that matters.

Look underneath to what is actually happening and then look to yourself and the wonderful thing about that is, you can’t count, it’s scary, it’s a scary thing. You can’t count on the judiciary, even though it looks like you can, you can’t. But you can count on yourself and you are in control of what you do and it’s very important that you act in a way that is American in the best sense. In a way that is tolerant and compassionate and fair and just, and that you insist upon that from everyone that you encounter, especially, the people who are supposed to be doing it anyway as part of their jobs.


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