The process surrounding the nomination of Judge Brett Kavanaugh for the Supreme Court is one of the ugliest proceedings that I can remember. On Thursday much of the nation was watching as first Dr. Christine Blasey Ford testified to the Senate Judiciary Committee and then Judge Kavanaugh did so. I was able to watch it all and it was very difficult to see. I feel badly for both witnesses, and their families. In these divided times both have suffered indignities that should not happen. After listening to the testimony, I do not know what happened on that night so many years ago. It may be impossible to know for sure what did or did not happen then. Dr. Ford was a credible and compelling witness. I believe her. At the same time, Judge Kavanaugh was adamant in his denial and we do have a system of assuming innocence until proven guilty. There are a number of scenarios that could have occurred where they are both correct — either in the actual facts or in the way that their minds have shaped events. We probably will never know exactly what happened.
Having watched, I will say right up front that I do not think that Judge Kavanaugh should be confirmed to the Supreme Court.
The reasons are many and varied, but foremost among them is my belief that his confirmation will solidify and institutionalize the blatant politicization of the Supreme Court, both in substance and in the process of selecting future Justices. This was solidified in my mind while watching the hearings on Thursday, but I have felt this way about Judge Kavanaugh from the moment I first saw him speak at the White House while accepting the president’s nomination. The more I have learned about him the more I am convinced that he was and is a political operative with questions about his ability to maintain neutrality in cases that may come before him. This excerpt from his opening statement to the committee says it all:
“This confirmation process has become a national disgrace. The Constitution gives the Senate an important role in the confirmation process, but you have replaced advise and consent with search and destroy. Since my nomination in July, there has been a frenzy on the left to come up with something, anything to block my confirmation. This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups. This is a circus.
“The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions from serving our country and as we all know, in the United States political system of the early 2000s, what goes around comes around.”
Keep in mind that the “you” he is talking to are Democrats. His demeanor and body language in response to the Democrats on the committee was contemptuous, sneering, and purposely disrespectful. I understand his anger and his revulsion at the way the process unfolded. That said, we expect a member of the Supreme Court to be even-tempered, respectful and willing to listen to all sides of an issue. His display of raw emotion on Thursday was none of those things. It was possible to passionately defend himself and his family in a mature, earnest way without publicly losing respect for the gravity of the situation and those with whom he disagrees. Dr. Ford was able to do so in her testimony, shouldn’t we expect the same of a Supreme Court Justice?
Take another look at his words above. “Fueled by pent-up anger at President Trump and the 2016 election.” “Revenge on behalf of the Clintons.” “What goes around comes around.” How can the American public possibly think that he will be even-handed when on the bench if he is looking to get back at those he thinks unfairly attacked him? His temperament should be disqualifying and his words should be disqualifying. Here’s the essence of what transpired. He went berserk at the hearing not only supposedly to clear his name (he evaded way too many questions in my mind to convince me that he was telling the truth, the whole truth, and nothing but the truth), but it was a performance to shore up the Conservative base and Republican support. He channeled their anger to rally them behind him. In the process he purposely “fueled the pent-up anger” of his right-wing supporters, further dividing the nation he purports to want to bring together, to fulfill his own ambition.
There was another element to his testimony as well. His sense of entitlement to the job — that somehow he was owed this appointment — was overwhelmingly apparent and very disquieting.
The hearings are in essence a job interview. It is not a trial and therefore there is no burden of proof for guilt or innocence. That said, I do not think he was clear in his thinking and he was not straight forward in his answers. This was true in his first hearing before the committee, and he did an even worse job of clearly answering questions in the second.
I disagree with his political philosophy and his stance on many issues. That happens in the course of history, and as the result of elections one party or way of thinking gets their way. While I may disagree with that party or ideology, I am willing to accept that they get to put forward a nominee that supports their way of thinking in these important positions. However, I hope that whatever the party or ideology of a Supreme Court nominee might be, that the individual is straight forward, tries to be neutral, and is seemingly of outstanding character. I get none of that vibe about Judge Kavanaugh. My concerns about him transcend his conservatism.
Thankfully, a modicum of decency in the process was restored when Senator Jeff Flake (R-Ariz) and Senator Chris Coons (D-Del) were able to work out a compromise on the committee to allow the FBI to reopen the Background Investigation of Judge Kavanaugh for a week. I was concerned that his appointment would be jammed through the Senate in a rush and that possibly damaging information would surface about him after he was installed on the bench. Had that happened (or should it still happen) another bitter fight with Constitutional overtones would have ensued. My view is that the Republicans pushing to get him on the Supreme Court (I’m looking at you Senator McConnell) don’t care to get to the truth. They just want their guy on the bench. I think that Senator McConnell is/was betting that an effort to impeach a Justice Kavanaugh would fail under the weight of accusations that it was a political gambit to remove an unpopular judge rather than on the ethical grounds that would precipitate it. He is on for life. Period.
It is doubtful that the expanded FBI investigation will change anyone’s mind. It is however, a chance for all sides to take a time out, pull back the rhetoric, and think through all of the pros and cons about the nominee and not just who is “winning” or “losing.”
I worry that in the long run we as a nation are losing our principles. We have been through contentious, bitter political battles in our long national history. We have survived. Unfortunately, the recovery was often long and unbalanced. We may be headed for the political cliff again. I trust that our resiliency as a nation will keep us from going over the edge, but there are no guarantees.
I agree with Judge Kavanaugh on one thing, however. He is correct when he calls his nomination process a “circus.” There is plenty of blame to go around on Capital Hill on the way the entire process was handled. Unfortunately, I don’t see any leaders stepping up to clean up behind the elephants and zebras and get us back on track. It will probably get uglier and messier before it gets better. And Judge Kavanaugh will become Justice Kavanaugh.
“Apres moi le deluge.”
– – Attributed to French King Louis XIV
The expression means “after me, the deluge.” It can be understood in a number of ways, including that after the demise of the king, there would be a disaster, or that he simply did not care what happened after he was gone. In some contexts, it has also come to mean that the king is the state, and without the king, the state ceases to exist.
Whatever one’s translation, it can easily be attributed in current times to our president. In many of his statements, he clearly sees himself as the state. Anything that goes against his wishes is a “disaster” or “an attack on our nation” or “treason.” Numerous examples abound.
“And it’s a disgrace. It’s, frankly, a real disgrace. It’s an attack on our country, in a true sense. It’s an attack on what we all stand for.”
— Donald J. Trump on 9 April 2018 following the FBI executing a lawful search warrant on the offices and home of his attorney Mr. Michael Cohen
“Just remember: What you’re seeing and what you’re reading is not what’s happening.”
— Donald J. Trump on 24 July 2018
“I tell you what, if I ever got impeached, I think the market would crash, I think everybody would be very poor. Without his kind of thinking (as he pointed to his head) you would see numbers that you wouldn’t believe in reverse.”
— Donald J. Trump on 23 August 2018 on “Fox and Friends”
There are many many more examples, too many to list here, where Mr. Trump equates his well-being to the state of the nation. He apparently thinks he is the nation. But perhaps the best example is still ongoing, starting with last week’s anonymous New York Times opinion piece on Mr. Trump’s fitness for office written by a “senior official” in the administration. It is worth reviewing the entire impact and implications of the piece, but first it is interesting to consider Mr. Trump’s reaction to it. Among other things, the writer made it clear in his/her opinion that Mr. Trump exhibits “erratic behavior,” exhibits fundamental “amorality,” and his leadership style is “impetuous, adversarial, petty, and ineffective.” Most importantly, the writer states that early on in his administration there was serious talk of invoking the 25th Amendment that provides the process for removing an unfit president from office.
Wow. Are we dealing with Captain Queeg and the Caine Mutiny? Will someone soon be ladling out strawberries to make sure they are all there?
More on all of that momentarily, but here is Mr. Trump’s reaction to it, coming on the heels of early reviews of Bob Woodward’s book on his presidency called “Fear” which will be released to the public tomorrow. He called upon the Department of Justice to initiate an investigation into who wrote it and into the New York Times to find out why they published it. His one word response to the events, over Twitter of course, was “TREASON.” (The all caps are his.) Once again, Mr. Trump loosely throws around very profound and serious accusations whenever anyone criticizes him. He equates himself to the state. Remember his insistence on loyalty to him, as a person, rather than to the Constitution and the rule of law. Once again he is threatening to use the Justice Department and FBI for his own personal purposes.
The New York Times opinion piece met with mixed reactions depending on who responded. His senior political appointees duly swore that it wasn’t them. Of course. The original Deep Throat in the 1970’s swore for roughly thirty years that it wasn’t him. Until it was.
More substantively, what is the import of the piece? I think it naive and unthinking to pass it off as just another political hack job from someone who doesn’t like the president. Just business as usual. Except that it isn’t. The increasing amount of evidence building around the president since his inauguration is that he is temperamentally, intellectually, and psychologically unfit to be the president of these United States. Remember Senator Bob Corker (R-Tenn) saying in the summer of 2017 that the White House is being run like “adult day care.” Senator Ben Sasse (R-Neb) said when asked about the piece “It’s just so similar to what so many of us hear from senior people around the White House, you know, three times a week. So it’s really troubling, and yet in a way, not surprising.”
Many other politicians, pundits, analysts and journalists relay that have observed the same unsettling behavior on the part of Mr. Trump for two years. They find nothing surprising in the situation as described in the op-ed or as reported to be in Mr. Woodward’s forthcoming book. It’s business as usual.
If everyone in the know understands that the president is not fit for office, why are they not stepping up and doing something about it? Consider this. In the piece the senior administration official says this:
Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis.”
This is serious business. If they felt that strongly, then why has no one gone to Congress (that we know of, it is always possible they did and the Republican controlled Congress chose not to act) or to the American public and expressed their obvious concerns over his ability to function as president. It is their duty. If it is that bad, that his own political appointees seriously considered it, then we are in big trouble. And no one is doing anything about it.
That isn’t to say that there should be a cavalier attitude about deposing a duly elected president. This is serious business. But that’s the point. I assume that a senior official does not take invoking the 25th Amendment lightly, and if they do they should be removed. To even think about it, much less discuss it, hints at dire circumstances. The writer is failing in his/her duty to the Constitution to not act on it.
One may also question the fidelity to the Constitution of the writer, and if the piece is correct, other members of the administration, by their tactics to keep the president in line. The author writes of “a two-track presidency.” This in and of itself is dangerous. While officials inside and outside the administration may disagree with a decision, their duty is to execute the orders of the President of the United States. We cannot function with a “two-track presidency.” Such action runs counter to the principles of our nation. When confronted with a profoundly troubling order, the officials surrounding the president have three choices. They can talk him out of it, resign and express their disagreement, or carry it out to the best of their ability. Period.
The story told in the op-ed and seemingly in Mr. Woodward’s book, coupled with long-standing journalist and news reports, paints a very scary picture of a president running amok. Personally. These concerns are separate and distinct from political agreements or disagreements on his policy. Think of this, the senior national security cabinet officials and intelligence officials still do not know what Mr. Trump discussed with Russian President Vladimir Putin. That is wrong and extremely troubling.
Equally troubling is that people within the administration take it upon themselves to decide which policies to implement and which ones to ignore. That isn’t how it works.
Finally there is Mr. Trump’s instinct to take everything personally and to invoke his powers to use the government for his own purposes. The list is nearly endless. In this case, it is a challenge to the fundamentals of our nation’s laws to call an op-ed piece “treason” and to imply (a president’s wishes are normally taken as commands) that the Department of Justice and the FBI should investigate an individual exercising their First Amendment rights. Further to imply that they should investigate the New York Times and force them to turn over the name of the author should make us all extremely concerned. No laws were broken in writing and publishing the piece. None. There is no national security or classified information in the piece.
One can argue that the anonymous source should have put their name on it. I agree. That is not against the law, however, and is significantly different from an investigation for treason.
I do not know what it will take for the Republican controlled Congress to exercise their Constitutional duties of oversight of this president. One person opined that only “millions” marching in the street will get them to do their duty. The elections in November will have a huge impact on the nation. If the Republicans win and continue to ignore their duty, Mr. Trump will be emboldened and push the limits of his power even further. If the Democrats win we will have endless hearings and investigations into Mr. Trump’s activities to the extent that it is possible that no other legislative business will get done. For the future of our nation, I will take the latter — or elected Republicans willing to take on the president.
My theory is that the current Republican leadership in the House and Senate have decided to ride Mr. Trump as far as they can — especially in the appointment of federal judges that is taking place at an unprecedented rate, not to mention the Supreme Court. The face of the judiciary has changed for years, perhaps decades to come. The Congress, especially through Senator Mitch McConnell (R-Ky), is going to continue to go full-bore on approving judges, riding Mr. Trump, until he collapses, at which point they will abandon him. His collapse will happen either through a Democrat blue wave in November or through Mr. Trump’s removal by resignation or impeachment.
In all, it is a troubling picture where we all need to pay attention. Risking hyperbole and hoping I do not sound shrill, nothing less than our future is at stake.
As confirmation hearings get underway today for the next nominee to the U.S. Supreme Court, Judge Brett Kavanaugh, and as the President of the United States continues to undermine the rule of law through his tweets, it may be time to ponder the impact on United States history made by one man. No not him. Senator Mitch McConnell (R-Ky) is the man.
You will remember that when Justice Antonin Scalia died unexpectedly in February 2016, President Obama nominated Judge Merrick Garland to replace him in March 2016. Senator McConnell as the Majority Leader of the Senate refused to even meet with him, much less allow hearings or a vote on the nomination. This was unprecedented. As I wrote at the time, the ability of a president to nominate a Supreme Court Justice, at any time in his term, was a long-established power held by the president. Indeed, the precedent was set early when President John Adams nominated Chief Justice John Marshall after the election of 1800 and he assumed his position on the court at almost the moment President Adams was walking out the door of the White House (Thomas Jefferson won the 1800 election).
For the record, because we hear it still, there is no “Biden Rule” as claimed by the Republicans in the Senate as the reason for not moving Judge Garland’s nomination forward. The truth is that then Senator Joe Biden of Delaware gave a speech in June 1992 where he argued that the president, at the time President George H. W. Bush, should not nominate a new Supreme Court Justice before the election. But here is “the rest of the story.” There was no vacancy on the Supreme Court. There was no nominee to the Supreme Court. The Senate never voted on his proposal and it was never incorporated into the rules. And he did not argue that a president could not nominate someone should a vacancy occur, only that given the proximity of the upcoming election, the president should wait until at least the day after an election to make the nomination. The “Biden Rule” is poppycock. It doesn’t exist. Senator McConnell had to really, really reach deep for a shaky reason for an unprecedented act on his part.
The seat left by Justice Scalia sat vacant for over a year.
But that’s not all.
Senator McConnell had an even bigger impact when, to facilitate what promised to be a hard-fought confirmation vote for then Judge Neil Gorsuch to the Supreme Court, he changed the Senate rules on a straight party vote to allow for a simple majority (51 votes) to confirm a Supreme Court nominee rather than stay with the over 200 year tradition of a super majority (now 60 votes) to confirm. This is the long-lasting and perhaps devastating change to our nation’s judiciary and its independence that will haunt us for generations to come.
Why? The reasons are complex but the simplest, and perhaps most important answer, is that for much of our nation’s history requiring a super majority usually meant that a nominee must appeal to a number of members of the opposite party in power. This historically meant that radical judges mostly could not garner the required number of votes for approval. This tended to result in nominees being right or left of center rather than far right or left. There had to be a modicum of moderation in the nominee’s past and probable future rulings on the court. That useful tool is now gone. The party in power can put in the most radical, and dare I say political, Justice that they may find and do it for purely political or ideological reasons. Many argue that the Supreme Court is already too political. Well, we now have the potential for it to become a political tool of whichever party is in control of the White House and Senate.
Since the rules that have guided our nation for so long are now no longer followed, what block is there in the future for a president and his party’s Senate to use a simple majority to put eleven or thirteen or any number of justices on the Court? The incoming party looks at the make up of the Supreme Court, decides that in order to overcome the last ruling party’s political Justices they will just pack the Court with enough Justices to override those that came from the other party.
Yes, I know that President Franklin D. Roosevelt tried to pack the Supreme Court and was thwarted. Here’s the rub. The Constitution does not say how many Justices should be on it. It merely says that the Federal Judiciary should consist of “one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.” The first Supreme Court nominated by President George Washington had six Justices including the Chief Justice. Through our early history Congress passed a series of Judiciary Acts that designated the number of Justices and it varied from five to ten. The current nine members is the result of an act in 1869. The point is that Congress sets the number of Justices and since precedent has already been over turned, what will stop some future Congress from changing the law regarding the number of Justices?
Senator McConnell changed the future by effectively doing away with natural “checks and balances” that tended to keep our Justices more moderate than they might be and by putting political expediency in front of principle, thus opening the door for others to do so in the future.
The expectation is that Judge Kavanaugh will get at least 51 votes and join the Court. His is a critical addition in an era where the president tweets constantly for law enforcement to punish his political adversaries (“Lock her up!”) and to protect his political supporters. Just yesterday he tweeted out
“Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff.” — Tweet from Donald J. Trump on 3 September 2018
“Jeff” is of course Attorney General Jeff Sessions. The “two very popular Republican Congressmen” are Rep. Duncan Hunter (R-Ca) indicted by a federal grand jury of misusing over $250,000 of campaign funds and the other is Rep. Chris Collins (R-NY) indicted on charges of insider trading. Both have pleaded not guilty, however Rep. Collins suspended his re-election campaign. For the record, Rep. Collins conducted his insider trading during the Trump Administration and indeed he is caught on film on the White House lawn making one of the calls that set off the chain of events that led to the charges. The larger point is that the president is chiding his Attorney General for enforcing the law because people from his own party, that incidentally were the first two members of the House to endorse Mr. Trump, and that could help him politically, were the perpetrators. So much for the rule of law and the president’s sworn oath to uphold the Constitution.
Further, thanks to Senator McConnell, we may now have two Justices on the Court appointed by a president that is very, very likely to have critical Constitutional issues surrounding the survival of his presidency come before them. One could argue that the current nomination process should be put on hold until the unindicted co-conspirator in the White House has his legal situation resolved.
Long after we move past the current unfolding Constitutional crises, the impact of Senator McConnell’s decision to put political expediency above the good of the nation’s proven processes will have unintended consequences.