We Could Use More Brave Principled Conservatives Like Charles Fried
Soon after he returned to Harvard from his term as Solicitor General of the United States, I had the honor of taking a seminar on appellate advocacy from Charles Fried, who sadly passed this week at the age of 88. Funny, kind, serious, and fair, I remember Fried as a professor who cared not a whit about ideology, but considered every legal issue we studied on the merits and judged students on the quality of their legal advocacy, not what they believed politically.
As his obituaries recount, Fried was perhaps most famous for his unsuccessful argument in an abortion case before the Supreme Court in 1989 in which he advocated on behalf of the Reagan Administration that Roe v. Wade should be overturned. Yet, over time, he changed his position. He recognized that the Court had placed Roe on a firmer constitutional footing in its landmark decision in 1992, Planned Parenthood v. Casey, and noted, in a commentary in 2021, how Casey had formed the basis for privacy law for over two decades. When it appeared the Court might be once again be considering overturning Roe, Fried wrote that doing so would be an act of “constitutional vandalism, not conservative but reactionary.”
In defense of his decision to support both Roe and Casey, he remarkably recounted an argument that had been used against him in the 1989 case when he claimed that overturning Roe would only unravel “one thread” of modern privacy law. His opposing counsel effectively responded that every time he pulled a thread on his sweater, “the whole sleeve fell off.” That Fried would reference this very effective moment against him at the Supreme Court demonstrates his humility and good sense. He recognized his opponent was right and was willing to now use the arguments used against him over two decades earlier in support of his new position. In our troubled times -- when admitting you are wrong is seen as a sign of weakness and embracing the view of a former opponent is seen as tribal heresy -- it is refreshing to remember Fried’s integrity and intellectual honesty.
In light of the principled stances Fried took over the course of his life, it is no surprise that this former stalwart Republican and veteran of the Reagan Administration recognized from early on that Donald Trump’s ideology showed total disdain for the very concept of the rule of law and therefore was a threat to American democracy. He broke from fellow Republicans and conservatives and publicly disclosed in 2016 that he was going to support Hillary Clinton.
We could use a lot more brave conservatives like Fried who are willing to admit their past errors. Our country needs far more conservatives to break from Donald Trump even though they supported him in 2016 and 2020. And it would also be helpful if those that decline to support Trump would also do what Fried did in 2016 by publicly supporting Trump’s single viable opponent, in this case, Joe Biden.
Consider first the many Republicans who know in their hearts that Trump is bad for the country but are now falling in line behind him as he obtains a vice-grip on the GOP nomination. By as late as last summer, only 10 of 49 GOP Senators had endorsed Trump. They know our country would be better off without him. But fewer than 20 GOP Senators are still holding out against Trump. Expect this number to be close to zero soon. We now even have former members of Congress who voted to impeach Trump after January 6, who are now saying they too would vote for Trump if he is the Republican nominee. Profiles in courage are in short supply.
Even the precious few conservatives that have announced they won’t support Trump, have not taken the next necessary step of publicly endorsing Biden, even though Biden is the only candidate for president with a chance of preventing a second Trump presidency.
For example, there is much to admire about how Liz Cheney sacrificed her political career by standing up to the lie that the 2020 election had been stolen from Trump and confronting Trump’s assault on the Constitution. However, Cheney continues to say she is considering a third-party run for the presidency, and has refused to endorse Biden for president, even though she called Trump an “existential threat to the nation” and said that defeating Trump is her “number one priority.” It is common sense that a Cheney candidacy would only provide a safe-haven for GOP never-Trumpers and thereby deprive Biden of votes vital to beating Trump in swing states. Cheney must know this to be true. Yet, her ego or desire to retain some a role in post-Trump GOP politics seem to be keeping her from doing the right thing and endorsing Biden.
Mitt Romney has been anti-Trump for a long time and voted to impeach him twice, but he as well still can’t get himself to say he would vote for Joe Biden. He has only gone so far as to say he is open to voting for “some Democrats” and that he likes Joe Manchin. Perhaps things will change with some of these never-Trumpers once the GOP primaries are completed and Trump is the official nominee, but I am not holding my breath.
Those who oppose Trump but say they will not vote for Biden rarely identify reasons why they would find it so difficult to cast a ballot for Biden. All of them would agree that Biden has executed the office of President with dignity and respect for constitutional norms and tradition. Most of them agree with the way he has handled the Ukraine and Gaza wars. They agree with his stand in favor of NATO and actions to confront China. They also agree with his landmark bipartisan legislation to invest in American infrastructure and the development of a domestic semiconductor industry vital to advanced technology.
Yes, these public figures have disagreements on social policy and taxation and spending issues that always divide Democrats and Republicans. But Charles Fried showed us that simply sticking with a position because that is what members of your tribe have always done is an empty way to go about life. The petty differences that Republicans and Democrats squabble about all the time pale in comparison to the importance of the differences between Biden and Trump on issues such as the role of America as a defender of liberty and democracy around the world, respect for the rule of law, and faith in our electoral democracy (to name a few). Those who have abandoned Trump know this to be true, yet still are failing to publicly embrace Biden over Trump.
Charles Fried would evaluate never-Trumper’s arguments for not endorsing Biden and conclude, in his polite and erudite way, that they are severely lacking in merit.