Sen. Josh Hawley (R-MO) is having a moment.
Last month, Hawley tore into a Trump judicial nominee. The nominee’s sin? Michael Bogren had the audacity to represent a Michigan city that wanted to enforce a civil rights ordinance against Catholic business owners who believe they have a constitutional right to discriminate. Hawley’s interrogation of Bogren was widely condemned even by many conservative voices.
Ed Whelan, the legal activist best known for using the real estate search engine Zillow to argue that Supreme Court nominee Brett Kavanaugh did not attempt to rape Christine Blasey Ford, warned that Hawley’s attacks on Bogren “could redound to the detriment of conservative nominees who have defended religious liberty or pro-life legislation in unpopular contexts.” The Federalist, a conservative website, published a column titled “No, Judicial Nominee Mike Bogren Is Not An Anti-Religious Bigot.”
Yet Hawley ultimately prevailed. Though Hawley’s inquisition of Bogren was denounced by the far right, it went viral among the far, far right. On Tuesday, Bogren sent a letter to President Trump asking that his nomination be withdrawn.
Hawley’s triumph over Bogren represents a new kind of American conservatism — one that places rigid purity over partisan solidarity, dominance over neutral values, pure unconstrained power over liberal democratic norms, and victory over all. As Ed Kilgore writes, Hawley’s worldview is “a departure from traditional American conservatism.” Yet it is “entirely consonant with a European brand of right-wing authoritarianism that drew on precapitalist strains of religion-based hostility to liberalism in economics as in culture, and contemptuously rejected modern liberal democracy while utilizing its institutions to seize power whenever possible.”
The Senate’s youngest member is a graduate of Yale Law School and a former law clerk to Chief Justice John Roberts. Yet he rejects the core value that animates any society driven by the rule of law — that a society must be governed by universal principles that apply equally to each person and each political faction.
Representing a client
Fourteen years ago, when Hawley’s former boss was up for confirmation to the nation’s highest judicial job, Roberts’ opponents leaned hard on the future chief justice’s record as an advocate. As future President Obama said in his speech explaining why he would vote against Roberts,
The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General’s Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.
Roberts’ defenders, meanwhile rallied behind a singular response to this attack. In Roberts’ own words, “it’s a tradition of the American Bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients.” It is wrong, dead wrong, they argued, to associate a lawyer with their client’s views. An attorney who defends a murderer does not condone murder. A lawyer who takes a politically unpopular position in a brief does not necessarily share that position.
There is nuance to this debate between Obama and Roberts over whether it is fair to impute a client’s views to their lawyer. Typically, a lawyer does not take a job at the Center for Reproductive Rights unless they believe strongly in the right to an abortion. Nor do they take a job at the anti-LGBTQ Alliance Defending Freedom if they are particularly concerned about gay rights. Similarly, if a lawyer at a private law firm builds a significant chunk of their practice around ideological cases brought by a particular political faction, it’s safe to assume that this lawyer is on board with that faction’s broader agenda.
But, however senators should weigh nuanced cases in confirmation hearings, Bogren clearly is not the sort of lawyer who has an ideological axe to grind against conservative Christians. Yes, Bogren represented the city of East Lansing in a case seeking to enforce an anti-discrimination law against conservative Catholics. But, as conservative law professor John Blackman noted on Twitter, Bogren also represented “a group of Methodists who sought a religious exemption following a discrimination suit.”
Bogren, in other words, has argued both sides of this contentious issue. By all outward signs, he is a lawyer for hire who takes the position his clients ask him to take. His record refutes Hawley’s suggestion that Bogren took the East Lansing case due to some animus towards Christians.
In fairness to Hawley, much of the senator’s rant against Bogren focused on particular arguments Bogren made in his brief. The one-time judicial nominee, Hawley claimed, compared “a Catholic family’s adherence to the teachings of their church to the activities of the KKK and the teachings of radical imams.”
But this is simply untrue. Bogren’s brief did not say that Catholicism is akin to terroristic racism. Instead, he deployed a very common tactic that lawyers routinely write into legal briefs — the “parade of horribles.” As Mark Joseph Stern explains, “what Bogren actually wrote is that if secular, for-profit businesses could win an exception to civil rights statutes, rampant discrimination would follow.” Once one party is given an exemption to civil rights law because of their religious views, it is difficult to draw a principled line between this party and other, more odious parties.
The parade of horribles is a warning that the relatively benign outcome reached in one case will establish a precedent that could compel truly awful results in future cases.
As Bogren noted in a statement announcing that he was dropping out of the fight to become a judge, the ethical rules governing lawyers in his state “require a lawyer to seek the lawful objectives of a client through reasonably available means permitted by law, and to zealously advocate for the client’s best interests.” Hawley, by contrast, believes that Bogren should have left arguments on the table, even if those arguments could have benefited his client, because those arguments personally upset Josh Hawley.
But, more importantly, Hawley’s scorched earth campaign against Bogren sends a clear message to other lawyers: represent a party that the Christian right opposes, and you will pay a professional price. That price will be paid, moreover, even if the lawyer also represented Christians in other cases that presented similar issues. Hawley’s crusade is much bigger than a war on one judicial nominee. It is an effort to prevent any lawyer with federal judicial ambitions from ever representing a party that disagrees with Hawley’s theocratic politics.
Hawley’s religious views are, to say the least, idiosyncratic. In a recent commencement address delivered at The King’s College — a school Kilgore describes as a “small citadel of militant conservative Christianity” — Hawley blamed America’s problems on a British monk who died over 1,600 years ago.
The monk is Pelagius, a fourth century theologian who, in Hawley’s words, “said that individuals could use their free choice to adopt their own purposes” and “to fix their own destinies.” Hawley thinks this is a bad thing.
The reason why he thinks it is a bad thing is because Hawley views this kind of freedom as a way of displacing God. “A disciple of Pelagius,” the senator warns, “said freedom of choice is that by which man is ’emancipated from God.’” The Pelagian concept of “liberty,” according to Hawley, “is the right to choose your own meaning, define your own values, emancipate yourself from God by creating your own self.”
If you do not know that Hawley is a conservative Republican senator, it’s easy to read his King’s College speech and come away thinking he’s some kind of Christian Marxist. “If freedom means choice among options, then the people with the most choices are the most free,” according to Hawley, “and that means the rich.” By contrast, “the Cross says the talented, the well-born, the well-educated do not deserve special privileges.”
From each according to his ability to each according to his need.
Yet, aside from some vague, Trumpian attacks on “globalization,” one searches Hawley’s speech in vain for actual policy proposals that can undo the inequities he rightfully points out. Nor does he really lay out a theory for why grounding American society in “the Cross” will cure a nation where most Americans “haven’t seen a real wage increase in 30 years.” Or where “healthcare is unaffordable” and “drug addiction is growing.” Hawley wants to repeal liberty, and replace it with something terrific.
The real Josh Hawley, moreover, shows no concern whatsoever for Americans who lack health care. And, while he apparently knows a great deal about some obscure monk who died decades before the last Roman emperor was deposed, Hawley seems less interested in more well-known religious texts — such as the Ten Commandments.
It is written somewhere that “thou shalt not kill.” Yet, as attorney general of Missouri, Hawley joined a lawsuit seeking to repeal Obamacare in its entirety. Should this suit ultimately prevail before the Supreme Court, tens of thousands of Americans will die every year from lack of health care who otherwise would have lived.
Likewise, it is written somewhere that “thou shalt not bear false witness.” Yet Hawley campaigned for the Senate on a promise to protect people with preexisting conditions — even as he was suing the federal government to eliminate protections for people with preexisting conditions.
— Josh Hawley (@HawleyMO) September 24, 2018
The heretic Josh Hawley, in other words, is quite eager to push his own, peculiar faith on the rest of the nation. He is happy to dress his quite explicit attacks on values like “freedom” and “liberty” in promises to restore lost wages and to make health care affordable. Yet he offers no solutions beyond a vague command to turn to “the Cross.” And his own behavior in public office betrays his promises.
The end of neutrality
Hawley is an unusually vocal and an unusually radical practitioner of a politics that places his own personal faith above all other values — and, at age 39, the young senator has plenty of time to seek even higher offices.
But he’s also not alone in his crusade. The frightening thing about Hawley’s attack on Bogren is that it betrays the principle of equal rights. If all parties are entitled to legal representation, then that means that both religious conservatives and the governments that enforce laws those conservatives don’t like are equally entitled to legal counsel. Yet Hawley disagrees, and he’s prepared to punish lawyers who dare to represent those governments — even if they also do work on the other side of this divide.
It’s the same ethic which says that a conservative Christian baker must be allowed to discriminate against gay customers, but the president may ban Muslims from even entering the country. It’s the same ethic that permits Christian inmates to be comforted by clergy in their dying moments, but denies this identical right to Muslims.
It is, in other words, an ethic that permeates the Supreme Court of the United States.
Thanks to Josh Hawley, an obscure Michigan lawyer will not become a low-ranking federal judge. But even if Attorney Bogren had become Judge Bogren, his decisions would still be subject to review by the same Supreme Court that gives special rights to conservative Christians and denies basic rights to Muslims.
Hawley, in other words, is an unusually virulent believer that his faith should trump others, but he’s hardly alone. And should he someday be in a position to lead the government, he will have many allies — especially in the judiciary he’s so determined to shape.