(Photo
by
David
Becker/Getty
Images)
Here’s
the
basic
rule
of
arguments:
People
take
utterly
ridiculous
positions
until
a
judge
of
some
sort
comes
on
the
scene.
The
appearance
of
a
judge
makes
people
abandon
their
ridiculous
positions
and
become
reasonable.
You
know
this
is
true
in
litigation:
The
other
side
in
a
lawsuit
takes
a
stupid
position.
You
explain
why
the
idea
is
stupid.
The
other
side
stands
by
the
stupid
position
until
you
brief
the
argument
and
are
about
to
present
it
to
a
judge.
The
other
side
realizes
that
it’s
about
to
be
publicly
exposed
as
a
moron,
and
the
other
side
abandons
the
stupid
argument.
This
idea
also
applies
to
public
fights,
such
as
political
fights
over
public
policy
issues.
Politicians
and
parties
will
take
a
stupid
position
until
their
position
is
about
to
be
made
public.
At
that
point,
they
abandon
the
stupid
position.
Unfortunately,
in
our
current
world
of
political
silos,
it’s
no
longer
possible
to
make
an
issue
public.
Take,
for
example,
Donald
Trump’s
request
that
the
Senate
go
into
recess
to
allow
him
to
make
recess
appointments
of
Cabinet
secretaries
and
thus
avoid
the
need
for
confirmation
hearings.
This
request
is
transparently
stupid.
If
it
were
possible
to
cause
the
public
to
focus
on
the
issue,
any
reasonable
person
would
see
that
Trump’s
position
is
stupid,
and
Trump
would
abandon
the
request.
But
it’s
no
longer
possible
to
make
the
issue
public,
so
Trump
will
never
abandon
the
argument.
Why
is
Trump’s
request
silly?
Here
are
just
two
reasons.
First,
the
United
States
Constitution
requires
that
the
Senate
give
advice
and
consent
about
certain
Executive
Branch
appointees.
Since
the
Constitution
requires
this,
the
president
should
not
ask
the
Senate
to
ignore
its
constitutional
obligations,
and
no
self-respecting
senator
would
consider
doing
this.
(Every
senator
did,
after
all,
give
an
oath
to
support
the
Constitution.)
Law-abiding
senators
would
explain
to
Trump
that
the
Constitution
requires
the
Senate
to
advise
and
consent
on
appointments;
the
Senate
cannot
go
into
recess
for
the
express
purpose
of
abdicating
its
constitutional
duty.
Second,
the
merits
of
political
arguments
can
often
be
judged
by
hypothetically
switching
the
positions
of
the
political
parties
involved.
Suppose
that
it
were
not
a
Republican
president,
Trump,
who
was
asking
the
Senate
to
ignore
its
constitutional
duty,
go
into
recess,
and
let
the
president
make
his
appointments
unencumbered.
Suppose
instead
that
it
were
a
Democratic
president
—
say,
Biden
—
who
asked
the
Republicans
in
the
Senate
to
go
into
recess
to
permit
him
to
make
his
appointments
unencumbered.
Everyone
knows
how
that
would
go:
The
Republicans
in
the
Senate
would
be
up
in
arms.
They’d
howl
that
the
Constitution
requires
them
to
advise
and
consent
on
appointments.
Biden’s
outrageous
request
was
an
obvious
power
grab
to
allow
him
to
staff
the
Executive
Branch
with
incompetent
loyalists
to
achieve
partisan
ends!
It’s
an
outrage
that
Biden
would
even
suggest
such
a
thing,
and
there’s
no
way
that
Republicans
would
consent!
See?
Trump’s
request
that
the
Senate
go
into
recess
to
allow
recess
appointments
is
on
its
face
absurd.
If
the
argument
were
about
to
be
made
public,
Trump
would
concede
the
point
rather
than
defend
this
idiocy
before
all
of
America.
The
difficulty
is
that
Trump’s
argument
can
no
longer
be
put
before
the
public
to
reveal
how
silly
it
is.
This
column,
for
example,
appears
in
an
online
publication
that
generally
leans
to
the
left.
Conservatives
will
never
read
this
column
and
thus
will
never
see
Trump’s
point
exposed
for
the
foolishness
it
is.
Other
outlets
may
repeat
my
argument,
but
those
outlets
will
be
along
the
lines
of The
New
York
Times,
the Washington
Post,
and
similar
liberal
media.
Neither
the
Wall
Street
Journal nor
the New
York
Post nor Breitbart News
will
ever
repeat
these
points.
Nor
will
the
algorithms
controlling
online
access
to
information
permit
the
argument
to
be
spread.
The
Facebook
and
TikTok
feeds
of
conservatives,
designed
to
spoon-feed
people
only
arguments
with
which
they
agree,
will
weed
out
my
points.
Rather,
conservative
outlets
will
continue
to
say,
“Trump
won
the
presidential
election
in
a
landslide.
He’s
now
asked
that
the
Senate
use
a
procedural
vehicle
to
let
him
make
the
appointments
that
he
wants
without
interference
by
others.
Of
course
the
Senate
should
heed
that
request.
Trump
has
the
right
to
appoint
the
people
he
wants
without
Senate
interference.”
The
United
States
will
continue
to
see
people
pursue
silly
arguments
until
we
can
once
again
allow
those
silly
arguments
to
be
considered
by
the
public
generally.
When
sources
of
information
are
put
into
silos,
people
are
not
forced
to
abandon
silly
arguments,
and
proponents
of
silly
arguments
do
not
pay
the
price
of
being
publicly
exposed
as
fools.
Mark Herrmann
spent
17
years
as
a
partner
at
a
leading
international
law
firm
and
later
oversaw
litigation,
compliance
and
employment
matters
at
a
large
international
company.
He
is
the
author
of
The
Curmudgeon’s
Guide
to
Practicing
Law and Drug
and
Device
Product
Liability
Litigation
Strategy (affiliate
links).
You
can
reach
him
by
email
at [email protected].