Last Friday we learned of the death of Justice Ruth Bader Ginsburg. Please take a moment to think of her and her family. She was a great American and a great American success story, coming from humble roots in middle class Brooklyn New York to rise to the Supreme Court. Along the way she was a true trail blazer and a forceful voice for human rights. She will be missed.
Her death opens a seat on the Supreme Court and offers Mr. Donald J. Trump the chance to put a third Justice on the Court. Elections do have consequences. The question then becomes, when do the consequences of an election kick in? In 2016 following the death of Justice Antonin Scalia, Senate Republicans kept an open seat on the Court for roughly a year claiming that no new Justices should be nominated or voted on until after the election of a new president. President Barack Obama’s nominee Merrick Garland did not even get a hearing, much less an up or down vote.
The real player in the drama then and now is Senate Majority Leader Mitch McConnell (Tr – KY). As much as Mr. Trump has pushed and pulled and ignored the norms surrounding the office of the president, Mr. McConnell has done the most to undermine the legitimacy of the Senate and the norms that used to guide our selection of judges to federal courts and to the Supreme Court. Along with unilaterally changing the required number of votes to approve a Supreme Court Justice from 60 — which normally meant that whichever party was in power would have to have some votes from the other party in order to confirm a nominee, thus allowing for more moderate judges to make it on to the court — it now only requires 51 votes which gives each party a chance to approve radical judges aligned with their party’s interests.
Indeed, Mr. McConnell has been so focused on getting judges on to the federal courts that very, very little else has been addressed over the last two years in the Senate. Mr. McConnell put his pursuit of judges over the lives of the now 200,000 Americans dead from Covid-19. He will not address any of the pandemic relief bills so desperately needed to fight the virus and to restore our economic well being. So much for claiming to be pro-life.
Much has been and will be written about the sheer utter hypocrisy of Republicans surrounding the nomination and confirmation of a new Justice during an election year. In 2016 it was a full ten months before the election. This year it is only about six weeks before the election. In fact, some states already have early voting underway. You will see lots and lots of video clips of one Republican Senator after another twisting themselves into more knots than a pretzel trying to explain why it was different then than it is now. Sad. Additionally, please remember that there is no such thing as the “Biden Rule” or “Thurmond Rule” or even a “McConnell Rule.” That is a lot of smoke to hide what is actually going on. There is only the law.
The bottom line? There is no shame in Trumpland. They will do whatever they want and without regard to the lies, hypocrisy and sheer awfulness of it. It won’t change so I won’t waste time arguing it or bemoaning it. To quote the president’s remarks about the deaths of so many of our fellow citizens, “It is what it is.”
There is no shame. It is just pure power politics. In effect, they will steal a Supreme Court seat for the second time.
What action can those that still have a sense of duty do to stop it? Procedurally, not much. The Constitution is vague about this issue. Article III, Section I of the Constitution says merely that:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Significantly, there is no indication of how many Justices there shall be or exactly what their role should be. Starting with the Judiciary Act of 1789, Congress shapes the size and authority of the Court. Of the three branches of our government, the Supreme Court is probably the one that most resembles its origins and relies heavily on custom and tradition in the process of taking care of business. Chief Justice John Marshall, appointed to the court by President John Adams, is credited with shaping the court into the form and substance we know today. The number of Justices on the court varied over time until 1869 when the number became nine and remains so today.
All of this is background as to what means are available to Democrats, and perhaps a few Republicans, to delay the confirmation until after the election and leave the choice to the winners in the White House and the Senate.
Since it now takes only 51 votes to over-ride any legislative maneuvering and to confirm a nominee, the opposition to a hasty process can only come from political pressure. It is an election year and several Republican Senators are up for re-election and find themselves in very tight races. This issue could have a significant impact on who is elected or re-elected. If their constituents forcefully voice their opposition to proceeding without regard to the election, some sitting Senators may find it difficult to support Mr. McConnell’s plan.
So far two Republican Senators have indicated that they do not support moving ahead with the process until after the election. Is it possible more might join them? Possible, but not a sure thing. Tremendous pressure will be applied to every Republican Senator to stay in line. In that regard, when the vote is taken will be critical.
By all accounts, the only thing that Senator McConnell values more than changing the face of the judiciary is retaining his power and prestige as majority leader. He will use everything in his power to keep power. It is conceivable that to protect vulnerable Senators that could be harmed by having to vote for a Trump appointee prior to the election, he will hold hearings before the election to gauge the political winds and hold off on the actual vote until after the election. Those that are re-elected are safe, those that are not have nothing to lose. The question then becomes a matter of conscience as to how individuals may vote, a commodity that unfortunately seems to be in short supply in the current political arena.
It would be a real insult to our democratic ideals if the Republicans lose the White House and their majority in the Senate but go ahead and confirm a Trump appointee.
There are many scenarios that could play out. I have no idea what will happen. The Republicans have a three seat majority. If three Republicans vote against a nominee, the Vice President would be the tie breaker. The Democrats would need to convince at least four Republicans to vote against a nominee, something that will be difficult to do should the nominee be a truly qualified jurist.
It seems that for the Democrats to stop the appointment of another conservative Justice, thus giving them a 6-3 advantage on the Court, they need to play hardball.
During the last four years the institutions of our government have been abused, even debased, in the pursuit of power by Mr. Trump and Mr. McConnell. To play the same game, some advocate for the Democrats to say that should the process ignore the election results that they will expand the Court to include more Justices. The law designating the number of Justices can be changed by a majority vote.
Personally, I think this is wrong. It would never stop as eventually one party loses the majority and the other looks to regain the upper hand. Our system of government has been under assault for four years, messing with the Supreme Court would be the beginning of the end of any restrictions on changing the rules to suit one party and undermining everything we used to hold as important to our fundamental system of government.
It may also backfire in that some voters may vote against the Democrats if they threaten to expand the Court.
There are some twists and turns that could influence the outcome. Two Senate institutionalists are retiring this year. Senators Lamar Alexander (TN) and Pat Roberts (KS), with no debt to pay to Mr. McConnell, or to Mr. Trump, may put the traditions and unwritten norms of the Senate and the judiciary above party politics. Should Senators Lisa Murkowski (AK) and Susan Collins (ME) stick to their avowed decision to oppose a nominee that would be the four votes needed to stop this move.
Another wild card vote comes from Arizona where Senator Martha McSally is currently behind her Democrat opponent former astronaut Mark Kelly. Since Senator McSally is an interim appointee (she fills the seat that belonged to John McCain), if Mr. Kelly wins the election he would be seated by the end of November bringing down the Republican advantage in the Senate.
Numerous possibilities will be floated in the coming weeks. There are no arguments to be made or scenarios to play out should Mr. Trump get re-elected and Mr. McConnell retain his majority in the Senate. There would be nothing that could, or should, stop Mr. Trump from seating his third appointee. Mr. Trump will campaign on this issue and try to make it a referendum that he thinks will help him win. Of course he wants the campaign to be about anything that distracts from his horrifying dereliction of duty mismanaging the pandemic and the loss of over 200,000 of our fellow citizens.
However the next few weeks unfold, two things are certain. Our nation lost a truly historic presence in the Supreme Court and an already wild and improbable election cycle where anything can happen just got even wilder and more unpredictable.
“This is deadly stuff.”
Donald J. Trump on 7 February 2020 to journalist Bob Woodward
In the course of writing his book Rage, Bob Woodward talked directly with the president eighteen times and recorded those conversations with Mr. Trump’s permission and knowledge. The tapes and available excerpts from the book clearly show that Mr. Trump knew from the beginning that the coronavirus was deadly and yet he continually took no action and played down the threat through much of January, February and March. In important ways he still ignores the severity of the crisis.
Mr. Trump clearly is not responsible for the outbreak of the COVID-19 pandemic, but his belated and inconsistent response cost tens of thousands of Americans their lives.
The timeline of Mr. Trump’s private statements to Mr. Woodward, matched up with his public statements about the state of the pandemic, demonstrates his callous disregard for American lives and his deliberate deception to prevent coherent actions in the early days of the crisis.
For example, Mr. Trump was briefed by his National Security Advisor Robert O’Brien that “this will be the biggest national security threat you face in your presidency. This is going to be the roughest thing you face.” His Deputy added that this was going to be at least as bad as the 1918 flu pandemic that killed 50 million people worldwide.
The briefing was given to him on 28 January 2020. On 7 February he told Mr. Woodward,
“You just breathe the air and that’s how it’s passed. And that’s a very tricky one. That’s a very delicate one. It’s also more deadly than even your strenuous flu. This is deadly stuff.”
Meanwhile on 26 February he compared the coronavirus to the flu and talked about how much worse the flu was in our country. He downplayed the threat and again compared it favorably to the flu on 9 March.
On 19 March he told Mr. Woodward,
“Now it’s turning out it’s just not old people, Bob. Just today and yesterday some startling facts came out. It’s not just old — it’s plenty of young people.”
On 24 March, 6 May and 5 August he downplayed the threat to young people and focused primarily on the threat to senior citizens. In fact, during an interview in August he said,
“If you look at children, children are almost — and I would almost say definitely — but almost immune from this disease. They don’t have a problem. They just don’t have a problem.”
There is more, but you get the idea. I suppose it should not be surprising that a president that lied over 20,000 times while in office continually lies about the pandemic. But the brazen, uncaring, callous way he treated our society is breathtaking. In the excerpts of the tapes that I have heard, I am struck most of all by the nonchalance and indifference in his voice. He truly does not care.
His avowed reason for lying to all of us (he calls it “downplaying” the impact) is that he did not want the public to “panic.” That would be hilarious if the results were not so horrifying. This from a president that creates fear and campaigns on panic be it “MS-13 caravans” flooding the border, or “destroying the suburbs” or a hundred other things he has injected into our lives.
The only panic he was trying to prevent was a panic in the markets on Wall Street. He tied his reelection to the economy and he was afraid that if he told the truth, if they took the required precautions early, that there would be an economic impact. He thought he could ride it out and therefore took no action.
Put this in perspective. According to a Columbia University study, if social distancing efforts had been put in place even just one week earlier (8 March instead of 15 March) 36,000 lives in the U.S. would have been saved and there would have been 700,000 fewer infections.
That is still a month after Mr. Trump told Mr. Woodward that “this is deadly stuff.”
Remember, since he was briefed in January about how the coronavirus spreads, Mr. Trump conducted campaign rallies, belittled people that wore masks, pushed for restaurants and bars to open, recommended injecting bleach into bodies, pushed hydroxychloroquine and generally brushed off all of the known precautions to stop its spread.
Based on his words and actions in pushing to reopen the economy, millions of Americans forswore masks and social distancing, gathered in bars, partied hearty, and otherwise facilitated the spread of the disease and the consequences we still feel over seven months after Mr. Trump knew the dangers inherent in this new disease.
Every American, Trump supporter or not, should be outraged. It is not hyperbole to say that his actions and inactions, with full knowledge of the threat, resulted in the loss of life.
Just as bad, his staff and advisers had the same information and said nothing. Shame on them all. They are just as guilty.
Mr. Trump failed in his primary duty as president. The president first and foremost must put the health, safety and security of all of us above all else. He still refuses to do so. His enablers continue to lie for him, cover up for him, and allow him to put himself above all. He insults us by saying he was just trying to be a “cheerleader” for our country. His enablers say he was just doing what any good leader does by projecting a calm demeanor. They even dare to compare him to President Franklin D. Roosevelt. Hogwash.
Their words and actions are despicable. Tell that to the families and friends of the nearly 200,000 dead Americans.
He lied and people died.
If you have not yet heard about the article in The Atlantic by Jeffrey Goldberg then you may think that this piece is about someone or something else other than the United States military. Unfortunately, the title comes from the mouth of Mr. Donald J. Trump and he was referring to our military, especially to those killed, wounded or missing in action. In accordance with the over 20,000 documented lies that the president has uttered since taking office, no one is surprised that Mr. Trump denied saying anything like that and trotted out a series of sycophants and Trump associates to deny that he ever said it.
Believe what you want, but I’ll go with The Atlantic and the corroboration of the essence of the article as confirmed by the Washington Post, New York Times, Associated Press, and Fox News. It also fits a long pattern of actions on his part that indicate his prime interest in the military is the trappings of office and banana republic style parades and displays of military equipment. For example, in 2018 his personal attorney Michael Cohen testified that Mr. Trump told him that he would never have gone to Vietnam. “You think I’m stupid? I wasn’t going to Vietnam.”
To me, it is easy to believe. It fits a pattern of behavior and conduct in office that fully supports his belief that nothing, absolutely nothing, is worth doing unless there is some personal monetary or other reward involved. He simply cannot comprehend that anybody would put their lives at risk for a concept such as democracy or the Constitution. His world view is that everyone is out to get whatever they can, and to get it they will lie, cheat or steal. If you do not do that then you are a loser or a sucker. You are there to be had.
Apparently in his world view, no one gets rich in the military so to join makes you either stupid — literally, you couldn’t do anything else — or a sucker. He is reported to have said to aides after a briefing by the then Chairman of the Joint Chiefs General Joe Dunford; “That guy is smart. Why did he join the military?”
This latest revelation of the superficiality of everything associated with Mr. Trump is not surprising. A quick look at some of his greatest hits shows that his language about the military is nothing new. I still find it depressing. Apparently he is not just totally transactional, but also ill-informed and basically ignorant about anything that does not involve his personal interests.
- In 1997 Mr. Trump said during the Howard Stern Show that his “personal Vietnam” was avoiding Sexually Transmitted Diseases. “I feel like a great and very brave soldier.”
- Starting in 1999 he continually attacked Senator John McCain and called him a loser. Mr. Trump denies this but his own Tweet from 18 July 2015 says exactly that. The then Chief of Staff at the Department of Homeland Security Mr. Miles Taylor attested to the fact that Mr. Trump did not want to take any honorific actions following the Senator’s death. Indeed, Mr. Trump was outraged that action was taken.
- Following the 2016 Democratic Convention he relentlessly attacked Khizr and Ghazala Khan after they spoke about the sacrifice of their son Army Captain Khan who was killed in action in 2004.
- In a botched condolence call in 2017 to the widow of Army Sergeant La David Johnson she said that Mr. Trump could not remember her husband’s name (he told her he read it after stumbling over it) and said to her “He knew what he signed up for.” When she expressed her pain over the call, Mr. Trump spent the next eight days attacking her via his Twitter account.
- In 2017 during a meeting in the Pentagon with the Joint Chiefs of Staff and other senior administration officials, he angrily told them they were all “losers.” “I wouldn’t go to war with you people. You’re a bunch of dopes and babies.”
- In 2019 he interfered in the military justice system by overturning the war crimes convictions of a Navy SEAL and an Army Special Forces officer and another Army officer about to go on trial for war crimes. Special interests used the medium of Fox News to get him to intervene. He thought it was good for him to do so because it would be popular. He said, “We train our boys to be killing machines, then prosecute them when they kill.” Such statements show that he has no clue about the military, its honor, or its code of conduct.
- Against the advice of his senior military and civilian advisers Mr. Trump precipitously withdrew U.S. support to the Kurds in Syria leading to a near massacre as Turkish forces poured across the border. He left a staunch ally in the lurch in order to impress the thugish leader of Turkey.
- This summer Mr. Trump threatened to deploy U.S. combat troops against American citizens. The Chairman of the Joint Chiefs General Mark Milley had to make two separate public statements affirming the military is not in the business of acting against our own citizens and that the non-partisan nature of the military precludes support for any candidate for public office.
- In July of this year Mr. Trump announced that the U.S. would withdraw about a third of our deployed forces in Europe to support NATO. This is a move that certainly delights Russian president Vladimir Putin. His stated reason for doing so was “We don’t want to be the suckers anymore. We’re reducing the force because they’re not paying their bills. It’s that simple.” (Not surprisingly, his statement on bill paying is not accurate and shows his ignorance of how NATO defense spending works. But hey, remember the 20,000 lies.)
- It is well known in and out of government through published reports that Russian agents in Afghanistan put bounties on the heads of U.S. military personnel. Taliban fighters would be paid for each American killed. This is perhaps the greatest sign the Mr. Trump cares not one iota for American military personnel as he makes countless excuses for inaction. Claiming ignorance, to this day he has not confronted the Russians over this outrage. Preventing the needless loss of life for the troops and doing all in his power to keep them safe is the greatest responsibility of the Commander-in-Chief and he refuses to take action.
There are many more examples of his callous disregard for the American military. He seems to think that all he has to do is mouth a few words at some rally and he’s done.
Do I believe that Mr. Trump is capable of calling our dead and wounded losers and suckers? You bet I do. His track record is abysmal. To paraphrase another president, Mr. Trump does not ask what he can do for the country, he asks what the country can do for him.