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.
While you were focused on the coronavirus pandemic and its devastating impact on our society, other government functions continue as intended. Among those continuing to function, although for the first time in history they did so via video conferences, was the Supreme Court. A number of pending cases could produce profound precedents that could change the ways our government functions.
Among these are two cases involving the Electoral College and whether or not the individual Electors are obligated to vote for the Presidential and Vice Presidential candidates with the most popular votes in their respective states. The two cases stem from the 2016 election and are Chiafalo v. Washington [the state] and Colorado Department of State v. Baca. In both cases, Electors voted for candidates other than the one with the most popular votes in their state. In the Chiafalo case the Washington State Supreme Court ruled that under the Constitution the state has the power to enforce the state law that requires Electors to vote for their party’s candidate. In the Baca case, however, the The United States Court of Appeals for the 10th District (in Denver) over-ruled the state’s law requiring Electors to vote for their party’s candidate saying that under the Constitution, once an Elector is appointed, they are free to vote as they choose.
In all, in 2016 seven Electors voted for candidates that were not the one’s they were supposed to represent.
It is now up to the Supreme Court to decide which determination is correct, with profound implications for our future elections. The practices and traditions which have served us well for all these many years could be codified through the Court’s action or it could be thrown on its ear.
So what does this mean to us? Perhaps a little background is in order as the Electoral College (which is a process rather than a place — and is never mentioned in the Constitution) is often misunderstood by many of us.
The Founding Fathers did not trust the great American unwashed average citizen to make rational choices as to our elected officials. The House of Representatives was to be “The People’s House” where they could participate in governing, but the real power was in the Senate. Recall that Senators were not popularly elected until the passage of the Seventeenth Amendment which was ratified in 1913. Before that, State Legislatures elected each state’s Senators.
Likewise, the Founding Fathers did not trust a direct popular vote for president. Alexander Hamilton wrote in the Federalist Papers that the Electors would have the “information and discernment” to determine the best person for President. Under the original text of the Constitution, state legislatures selected the Electors and each Elector would cast two ballots for president. The candidate with the most votes (assuming it is a majority) would be President and the candidate with the second most votes would be Vice President. Then came the election of 1800 where Thomas Jefferson and Aaron Burr tied with 73 votes each. The decision then went to the House of Representatives where after 36 ballots (neither could garner a majority), Jefferson was voted in as President.
Following this near debacle, the Twelfth Amendment was ratified in 1804. This modified how Electors cast their ballots, separating the vote for President from that of Vice President. It did not designate how the Electors would be chosen.
Over time, most states decided that the Electoral votes from their state would go to the candidate with the most popular votes. (Maine and Nebraska have laws that divide the Electoral votes by Congressional district. It is thus possible that votes from those states could go to two candidates.) Twenty-six states and the District of Columbia (they gained Electoral votes under the Twenty-third Amendment in 1961) have laws that bind the Electors to vote the same as the popular vote.
In practice, when we vote we do not vote for the president. We vote for Electors who promise to vote for a particular candidate. Most Electors are party luminaries or workers in the same party as the candidate. Where laws do not govern the specifics of how a state’s Electors must vote, it is assumed that by pledging their loyalty to a particular party’s candidate, they will so vote.
Over time, “faithless Electors” — those that do not follow the popular vote — have not decided any election. However, there were at least five presidential elections where the winner would have been different if ten Electors had changed their vote. Likewise, there have been five elections where a president lost the popular vote but won the Electoral College vote (1824, 1876, 1888, 2000, and 2016).
Here is another fun fact about presidential elections. If the electoral vote is tied, the decision rests with the House for President and the Senate for Vice President. But here’s the rub. Each state votes as a block and each state counts as one vote. Thus the vote for President from the North Dakota delegation (with only one Representative) counts the same as the vote from California with 53 Representatives.
Clearly, our president is not, and never has been, decided by the popular vote in any way that would be comparable to our election for every other office in the land since 1913. Over the years there have been many attempts to do away with the current system and to have the voters directly decide on the President and Vice President. It would require an Act of Congress and ratification from the states to do so because it would be a change to the Constitution. The closest attempt to change it was the passage of a resolution in the House of Representatives in 1969 calling for a direct vote with a run off if no candidate received at least forty percent of the vote. The resolution failed to pass in the Senate.
The dilemma the Supreme Court faces is how to interpret the Constitution without upending two centuries of practice. Essentially, our country devised a new way of electing our presidents, different from the original ideas of the Founding Fathers, even if we keep the relics and traditions of that system. If the “originalists” on the Court decide that the Constitution intended for Electors to use their discretion and vote for whomever they want, the popular vote could become meaningless as there would be no obligation to vote for the winner in their respective states. They could vote for anyone, potentially throwing the system into chaos. If the Court decides that states can in fact determine how their Electors are chosen and that the Electors must vote as per the state’s law, then they run the risk of voiding what some consider to be the original intent of the Founding Fathers.
Given the ongoing destruction of long-standing norms, practices and ethical behavior that previously stood the test of time, it is imperative that the Court codify existing practice and give the states the power to best determine how their Electors will be allocated. Further, the Congress should again address the issues surrounding the use of Electors to determine our presidents. Even if one is in favor of the way we have come to interpret the value of the Electoral College (theoretically giving more states a chance to participate in the selection of our presidents) it is time to put into law how those Electors are chosen. To do otherwise invites disaster in either the near or long term. I have voiced my opinion in this space in previous postings that I believe we should do away with the anachronistic Electoral College and provide for direct popular votes for president.
Either way, we should not leave it up to chance. The forthcoming decision from the Supreme Court will have a direct impact on our future elections. Let’s hope that they get it right and keep the states in charge of enforcing votes from their Electors. The Congress must then follow up to instill a rigorous and uniform method for selecting Electors and their subsequent votes — either by putting our current system into law or by abolishing the Electoral College and providing for the direct election of President and Vice President. The future of our Republic demands it.
Yesterday’s announcement by Mr. Donald J. Trump that he is declaring a national emergency on the southern border is just one more step towards creating the autocracy that he so desperately wants to have. After two years of total Republican control, and no “big, beautiful wall,” and no money from Mexico, Mr. Trump puts our Constitution in danger in order to shore up his political standing with his base. An overblown statement on my part? I think not.
As I have written in this space before, one may believe that we do or do not need a border wall, but the facts remain the same. There is no crisis on the border and a wall is not going to stop the flow of people or drugs into this country. You can look it up as I did in my previous piece using the statistics from Mr. Trump’s own administration. Mr. Trump, as usual, makes up his own statistics in order to make a case that his own administration cannot make. But the Constitutional issue is bigger than Mr. Trump’s usual panoply of lies.
The law that the president is using to justify his declaration is known as the National Emergencies Act (NEA) signed into law by President Gerald Ford in September 1976. Ironically, it was intended to end the abuse of the presidential power to declare a national emergency for just any political purpose. Enacted as a reaction to the Watergate scandal the intent was to eliminate the opportunity for presidential abuse of power to protect themselves from political scandal. The law itself is quite complicated. Its originators tried to tie together the elements of presidential prerogative to specific situations covered under existing laws. Without going too far into the weeds, Mr. Trump is using Department of Defense funds for his wall because of an existing statute that allows for redistribution of funds for the protection of military personnel on assigned missions. There are military personnel on the border — ordered there by Mr. Trump but in purely supportive positions — and thus he argues that the wall will protect those troops. It is a complicated interpretation of the law, but as I am not a legislative assistant nor an attorney, I will leave it at that. The point is that the president cannot just wake up one morning and declare an emergency for the fun of it — or at least until now it was thought that they could not — rather, the actions taken under a national emergency must be justified on the basis of existing law.
The DOD funds are primarily from military construction funds and intended for use in improving military support infrastructure, restoring hurricane damage to bases in North Carolina and Florida and other projects. Ironically, some of the money will come from a fund used by DOD for counter-drug operations. In all he is misappropriating over six billion dollars of DOD funds.
The act has been used 59 times over the years by various presidents. Most instances were to impose sanctions on a bad actor overseas, such as to inhibit a dictator from killing his own people. One was declared after Iraq invaded Kuwait and another after the terrorist attacks of September 11th. It was these types of acts that the legislation envisioned giving the president the ability to act quickly in a crisis. Most importantly, none of those previous declarations directly or indirectly circumvented the intent of Congress. This one does. The president is directly challenging the power of Congress to control funding for the first time under this provision.
That is why I believe his declaration to be a threat to the Constitution. A bicameral and bipartisan committee came up with legislation to fund the government that included roughly 1.375 billion dollars for Mr. Trump’s wall. The bill passed with veto proof margins in both houses of Congress. That should be the end of the discussion for this year. If Mr. Trump wanted more money in the future, he could work with Congress to add more money in those spending bills. However, in a fit of pique that he got less money this year than he would have gotten if he had not shut down the government for 35 days — and way less than the 25 billion dollars that Congress was willing to give him a year ago in exchange for protecting the “Dreamers” — the “greatest deal maker in the world” declared a national emergency to build a monument to himself and to bolster his chances in the 2020 presidential election. But don’t take my word for it, take his. Besides having talked about a “national emergency” for months and trying to use it as a threat to get Congress to give him more money, yesterday in response to reporter’s questions about why he did not just continue to work with Congress under normal appropriation and authorization processes, he said, “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.” Wow. So the president himself admitted that there is no national emergency, merely that he got tired of working with Congress and making slow progress, In other words he chose expediency over the national interest. He then went on to say, “And I don’t have to do it for the election. I’ve already done a lot of wall for the election. 2020. And the only reason we’re up here talking about this is because of the election…” Double wow.
So we have the President of the United States, invoking a national emergency, bypassing a bipartisan funding bill from the Congress, because he wants money to build a wall faster in order to appease his base for the 2020 election. That is one thing about Mr. Trump. He doesn’t hesitate to tell us when he is doing something shady.
In case you forgot, Article One, Section 9 of the Constitution says in part, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Article One enumerates the powers vested in Congress. Section 9 is the “power of the purse” reference that is the strongest element of the power invested in the Congress. Since the president cannot spend money except for specific purposes, the Congress can exert its power as a co-equal branch of government. Without that power in Congress, the president and his Cabinet could spend money on any enterprise they see fit without over sight or other input from Congress.
Besides Mr. Trump’s Banana Republic shenanigans in creating a non-existent crisis to deploy troops and to build a wall to stop a non-existent “invasion” (Autocracy 101 Playbook), Constitutional experts consider his actions to be a direct threat to the Article One powers of the Congress. He would set a precedent that any time a president has a pet project that the Congress will not fund, he or she could declare a national emergency and take money from one authorized project and use it on an unauthorized one. It is an unabashed abuse of presidential power.
How to stop it? The NEA of 1976 provides that opportunity. A 1985 amendment allows for a joint resolution of Congress to end the emergency. Again, without going into the weeds, it requires a simple majority in both Houses to overturn it. Provisions require a speedy vote so that legislative legerdemain cannot bury the issue. They must address it if a bill is brought forward. The president may veto the resolution, in which case the Congress must over ride the veto with a two-thirds majority in both Houses to end the emergency.
It is widely expected that such a bill will come forward in the Democrat controlled House of Representatives where it is expected to pass. The chances of the bill passing are less certain in the Republican controlled Senate. Speculation is that it would pass on a majority, but that the Senate would not over ride a veto. Keep in mind that the Senate Majority Leader Mitch McConnell (Trump-Ky) was against the president declaring an emergency before he was for it. Just a few days ago he was against it. Then on Thursday he took to the Senate floor to say that he supports it. So much for his reputation as an ardent supporter of the Constitution and the self-appointed protector of the Senate and their legislative powers. Perhaps he should re-label his position as the Senate Leading Enabler.
When the Congress fails to stop the madness, numerous court cases are likely to be filed. The basis of those cases will range from Constitutional separation of powers issues to eminent domain cases (it seems that most land owners along the border are not willing to give up their land for a meaningless wall). Whether or not the issue makes it to the Supreme Court is itself a question. The Supreme Court may consider this to be an issue between the other two branches of government, and they are historically loathe to make a decision that favors one or the other when it comes to delineated powers. They want them to solve it themselves, which seems logical since the Congress can pass laws to restrict or rescind the original Act, including the above voting procedure to end a national emergency. What is certain is that it will be working through the courts for months, possibly years, to come. The immediate question will be whether a court issues an injunction to stop any building of the wall using misappropriated funds while the court cases play out. And you can expect every brief opposing the action to begin with Mr. Trump’s statement that he didn’t need to do it.
In some ways this is an esoteric issue. In some ways it is a comedy of the absurd. It is hard to follow the nuances of the law and the Constitution. It gets complicated. Mr. Trump has a knack for putting things into black and white to try to make his points, even if he lies to do so. The country cannot afford to ignore him or to look away this time. To cut through the legalese, I’ll put it this way. The President of the United States is using a hoax to usurp the Constitution of the United States. He is making a pure power play that if allowed to stand will set a precedent for him, and future presidents, to act without restraint to achieve their purposes whether legitimate or not. It is the beginning of a president gaining unfettered power. This is not hyperbole on my part or an over reaction from those that are anti-Trump. Read up on your own, form your own opinion, but the consequences are not whether we build a wall. The issue is whether a president can skirt the law and get away with it. That should be of grave concern to anyone that believes that we should be a country of laws and that no one, not even the president, is above the Constitution.
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.
In my lifetime, an election was usually a beginning. Most of the time, it was a positive beginning as proponents of opposing candidates and political parties were happy or sad, justified or disappointed, but generally supportive of the process and willing to give the new president a chance to see what he could accomplish. The election was over, and so most folks took a time out and turned towards the holidays and the approaching new year, and didn’t think much about politics again until Inauguration Day or later.
This year I worry that the most fractious campaign in our lifetimes will not end on Tuesday at the voting booth. Two flawed candidates are limping towards the finish line, but I am not sure how things will play out when the results are tallied. I am out of the prediction business as I have no idea who will win on 8 November but you already know what I think as to which of the two will do less harm to our country. That said, I do try to be balanced, or at least fair, in presenting my views in this space. I will endeavor to do so again today, but I am concerned that not everyone involved in the two campaigns, the most ardent supporters or haters as the case may be, will be satisfied with the outcome. I am worried that some will not only be upset about the results but that they will act on their dissatisfaction in negative ways. And let’s be blunt, when one candidate whines about the election being “rigged” because he is losing, suggests that “poll watchers” go to the inner city to make sure that voters are not “cheating” and other similar statements, the probability of a conflict increases greatly. (And I note that he only cites the “inner cities” — code for minority areas — and not rural areas or small towns. He often suggests that they exercise their Second Amendment rights while watching the polls. Can you imagine what would happen if a group of armed African-Americans showed up in a small town in Kansas to watch the voters vote?)
Having said that, I am more worried about the impact on our form of government, our law makers ability, indeed their desire, to do their jobs and the unpredictable actions of our fellow citizens. Which ever candidate wins, there are huge problems ahead. Let’s look at a Hillary Clinton victory first.
Votes are yet to be counted, results are yet to be certified, and no one knows who will win on Tuesday. Yet, Representatives Jim Sensenbrenner (R-Wisconsin), Louie Gohmert (R-Texas), and Michael McCall (R-Texas) Chairman of the House Homeland Security Committee, as well as Senator Ron Johnson (R-Wisconsin), among others, have already stated publicly that they plan to begin impeachment proceedings against Secretary Clinton should she be elected. Additionally, Senators Ted Cruz (R-Texas), Richard Burr (R-North Carolina), John McCain (R-Arizona) and Rand Paul (R-Kentucky), among others, have clearly stated or with a wink and a nod hinted at confirming none (repeat: none) of Secretary Clinton’s appointments to the Supreme Court. Wow. Even with a sense of leavening that these statements were made under the stress of campaigns and the emotions of the moment, these men still made astounding, and frankly, un-American statements about using the law of the land to punish an election winner that they do not like. The will of the people be damned, I suppose. You will note that there is a pretty good likelihood that the Democrats will regain control of the Senate, yet I have not heard a single Democrat running for office promise not to confirm Mr. Trump’s nominees or that they will begin impeachment proceedings against him as soon as he is sworn in as president.
Some argue that there is no need for nine justices and that we have had different numbers on the Supreme Court over our history. True. But there have been nine since 1869. With Justice Scalia’s untimely death early this year, the Court has been functioning (although deferring some cases until a ninth judge is confirmed) with only eight. However, if the Republicans follow through on their threat, what is the right number? Seven? Six? No one knows what deaths may occur, or retirements may occur, or other unforeseen circumstances that would further reduce the number of Justices. Really? And what happened to the current Senate Majority Leader’s, Senator Mitch McConnell (R-Kentucky), promise that the next president gets to nominate a Justice, and of course the fact that our current president (we only have one at a time) has a nominee on the floor for going on seven months?
As if that is not enough, Mr. Trump himself made a similar promise in the second debate this fall. In the context of the “lock her up!” cries at his rallies, he made the following statement in response to a debate question about it should he be president.
“I am going to instruct my Attorney General to get a Special Prosecutor to look into your (Clinton’s) situation.”
The next day he reiterated his plan to prosecute Secretary Clinton when he is president. Besides being unheard of in American politics — no winning president has ever threatened to jail his losing opponent in our history like we are some kind of third world banana republic — it also exhibits Mr. Trump’s desire to use the government for his personal vendettas. It also demonstrates his lack of knowledge in that president’s are not authorized to order specific criminal investigations of individuals, not to mention political opponents. To lose the impartiality of the Department of Justice in order to pursue his own ends would undermine the very fabric of justice in our country.
These examples alone would be cause for alarm as to what will happen after the election. Actions that could destroy the delicate balance between a functioning two-party system and one where the rule of law and our Constitution is used only as a prop when it suits one’s purpose.
Of additional concern, and this really really bothers me, is the ongoing hacking of Secretary Clinton’s campaign. By the Russians. And I have heard very little concern expressed about it by any Republican, and especially none by Mr. Trump himself. Indeed, last summer he invited the Russians to hack Secretary Clinton. This is serious, people. And yet all I hear about is what is in the emails and not that they were illegally stolen by a foreign government and used to disrupt our election. (By the way they may be embarrassing but there are no “smoking guns” about illegal activity and I would argue that any large organization or campaign would be embarrassed if their internal discussions and unvarnished proposals were made public.)
Intelligence and law enforcement officials are preparing for some kind of additional cyber attack before, or on, election day. The attack could come in any number of ways, but will probably be designed to further undermine the perception of a free and fair election process. Democrats and Republicans should both be deeply concerned about this prospect. But it seems to be of little concern as compared to petty fighting over minor issues.
Let’s look at a Donald Trump victory. My concerns for our nation are not in any way lessened should Mr. Trump win. As hard as it is, I will momentarily forget that the man is temperamentally unsuited for the office, and that he has shown a remarkable lack of intellectual curiosity to learn even the basics of how the government works under the Constitution or our most basic foreign policies.
Mr. Trump currently has approximately 75 lawsuits actively pending against him. Many are long-standing complaints against him ranging from discrimination to failure to pay contractors. Most notable, a trial in a class action lawsuit against him for fraud surrounding Trump University starts 28 November. That is one of three state lawsuits against Trump University. The Trump Foundation is also under legal scrutiny for illegal fund-raising efforts and for violating laws on how such money may be spent. It is a long list. How does that impact his ability to carry out the duties of his office? How will the trials be impacted if he is president? This creates yet another opportunity for the public perception of justice to be tainted by politics.
Mr. Trump continues to refuse to release any of his tax returns so we know nothing of his business dealings, except for what he chooses to brag about. Multiple responsible inquiries have shown him to be far less successful in business than he gives himself credit for having accomplished. (By the way, it was pointed out that his final 2015 tax returns were due about two weeks ago. There is nothing to stop him from releasing those as he would not know if they were going to be audited. Not to mention that the Internal Revenue Service repeatedly stated that there is nothing stopping him from releasing them while under audit.)
The primary reason this is important, among many reasons, is that he claims to have extensive business dealings overseas, which is the basis of his claimed knowledge of foreign policy. If so, we should know what those dealings might be so that potential conflicts of interest may be identified. What checks and balances would be in place to make sure that foreign policy decisions were made to further the interests of the United States and not merely to help his business? Without this knowledge it is possible that foreign agents could compromise our interests overseas.
In this vein I find his admiration for Russian President Vladimir Putin troubling. I am not so bothered by Mr. Trump’s claims that Mr. Putin is “a great leader.” Strange, but less troubling than the fact that the Russians are hacking and attempting to influence our election. The Russians, and others, are using propaganda, psychological operations (PSYOPS) and intelligence to undermine our election and thereby demonstrate to their own citizens that there is no such thing as a real democracy, it is all a sham and rigged by the powerful. This message to their own people, by using us as an example, can be very effective in keeping their own power. Mr. Trump received classified briefings on this effort. And yet, in the debates, he claims that there is no evidence that the Russians are involved and further claims that he does not trust the U.S. intelligence agencies. Wow again. He either willfully ignores the information he is given, or he is frighteningly uncaring, or he is glad that it is going on, especially if it helps him. Any one of those reasons are scary. Perhaps most scary would be that he does not believe the information because he already knows it all — a statement he has repeated concerning foreign policy, military affairs, and a host of other issues. (“I know more about ISIS than the generals do. Believe me.” — 12 November 2015)
Here is the kicker and perhaps the most dangerous of all the unknowns. How will the American people react over the long run? My question reflects how we ended up in our current presidential predicament. In my view, the current atmosphere was created by politicians promising to do things that they could not, or in some cases, never intended to deliver. Many of our fellow citizens feel abandoned by their government and suspicious of the leaders in Washington. Mr. Trump tapped into that and we are now on the verge of being one vote away from him as president. Many will rejoice and think “finally, we have someone to change things.”
That is what is worrisome. Hear me out, please. First, we have prominent Republican law makers promising that if Secretary Clinton is president they will block essentially everything she tries to do and tie her up in impeachment hearings and other vindictive investigations and hearings — mostly about things they have been investigating for four years or more and have yet to find anything of substance. In other words, more of the same from the last six years. Lots of promises but no substantive action. Isn’t that how we got here in the first place? What makes Republican law makers think that more dysfunction and lack of, you know, actual governing is going to make things better? Four more years of doing nothing is not going to heal the country and it will not endear the Republican party to future voters. Such an approach is more than a little short-sighted politically and not good for the future of our nation.
The first test is coming up soon. On 29 September 2016, about 36 hours before the government would shut down, Congress passed a Continuing Resolution to keep the government funded until 9 December and then promptly left town and haven’t been in session since. They must now come back in a lame duck session to fund the government for the rest of the fiscal year. However, the members of the Freedom Caucus, the Republican Tea Party group, are threatening to block all federal funding unless certain of their pet demands are met. They are also threatening to unseat Representative Paul Ryan (R-Wisconsin) as Speaker of the House if he doesn’t go along with their demands, which run counter to the overall objectives of the Congress as a whole. Welcome to the post-election honey moon.
Most disturbing to me is that during his campaign Mr. Trump promises many things that he cannot do under the Constitution or that are unlikely to be supported by the Congress. When that happens, will the country react with more disappointment and lack of trust, or will something else occur? Mr. Trump’s campaign rhetoric has often bordered on inciting violence and I fear that rather than finding himself frustrated in not being able to do what he wants, he will put out “a call to action.” No one knows what form that call may take, or more to the point, how some on the fringe may interpret it. Whatever the case, it will not be good for our country.
I hope that I am wrong and that my worries are unfounded. But the indicators are not good. There will be no post-election honey moon and the prospects for civil political discourse to address urgent issues and to keep our nation on track are not promising.
Or as cartoonist Walt Kelly said in his comic strip Pogo:
“We have met the enemy, and he is us.”
The past few weeks were filled with notable events, often coming so fast that it is hard to digest one before the next takes our attention. Many are horrific, others significant, and still others may change our world in ways we yet know. Taken in sum or in part, they can be depressing and continue to challenge my view that the world is basically a good place and that given the chance, most people will do the right thing.
In no particular order, here are a few thoughts on the major and minor events of the last few weeks that have set me to thinking.
Turkey. The attempted coup in Turkey yesterday proved one old adage. When the person you are trying to over throw takes off in an airplane, do not let them land back in the country again. More seriously, it is not only good for Turkey that their democratically elected President Recep Erdogan was able to disrupt and ultimately defeat those attempting the coup, but it is also good for NATO and for the United States. Turkey is a lynch pin in a wide range of western policies ranging from the defeat of ISIS to relations with Israel. However, President Erdogan will never be accused of being a nice guy. Do not expect it to be a pretty sight in the coming days and weeks as the government rounds up those that tried to bring them down. And those suspected of helping them whether or not they actually did.
Mass killings. When is it “too soon” to talk about them besides offering up only “thoughts and prayers”? When some politicians try to go beyond platitudes they are accused of politicizing the events. At the rate that they have recently been coming, we will never talk about them because one can hardly comprehend what happened before another occurs. Our society is increasingly violent. We need to look seriously at ways to stop the violence and provide for the safety of the average citizen. This does not mean solely protection from alleged Islamist terrorists — many of whom have no religious background and are primarily disgruntled or mentally unstable petty crooks looking for a cause — but in other ways as well. According to recent studies by the American Automobile Association and the American Safety Council, 56% of all fatal crashes in the multi-year study are caused by road rage and 37% of the incidents involve a fire arm. In the United States.
Black Lives Matter. When did discussions in our country become “either or” discussions? Why does supporting the Black Lives Matter protesters become anti-police officer or vice versa? Why does one have to choose a side when in the end we are talking about the well-being of our communities and those that live in them? A serious discussion needs to occur at the community level to get everyone back on the same page. In the end we all want the same thing — a safe and pleasant community — so why not protest when citizens believe that they do not live in a such a community? But more violence and targeting police officers will not bring that about. Ironically, the police chief in Dallas had been working hard to change the atmosphere and context of police-community relations and by many accounts had made great progress. It is so sad and so senseless that his community and our nation suffered the loss of five fine police officers.
Gun Safety. When did working for increased gun safety become anti-gun? Another example of a complex issue in our country becoming an “either or” argument. I despair that we will ever have a serious discussion about this issue. Any discussion that contains “libtards”, “red-necks”, “do away with all guns” or “from my cold dead hands” is going nowhere from the start. There is a middle ground. When over 30,000 people die from guns every year in the United States we have a problem. We must address it.
Congress. Do not get me started. I will say this, Congress just left Washington for a seven week summer break (and oh yeah, to campaign for re-election). According to the current schedule, they will only be around, you know, actually working on bills, for about two more weeks before the November elections. Please note that most weeks when they are in session, work (actually a chance that they may vote on something) never begins before 6:30 PM on Monday (and usually it is noon on Tuesday) and never goes past 3:00 PM on Friday (usually actually ends about 8 PM on Thursday). We should all be so lucky. According to govtrack.us there are currently 10,896 bills and resolutions before the current Congress. On 3 January 2017 the 114th Congress will end and all bills not addressed by then will die. To see the light of day again, they must again be put forward by our legislators. In the one to two weeks left of actual legislating (unless they meet in a lame duck session after the election — note that one can only be a lame duck after an election that you lost, not because you are declared one 10 months prior to the election) they will have to address appropriations bills across the government in order to keep it functioning. Once again we are facing an omnibus continuing resolution that provides some money to keep things going until they can figure it out (and some are calling for that to carry over until next March so that the new Congress can deal with it — and remind me why we elect these people) or there will be another government shutdown.
The Supreme Court. Justice Ruth Bader Ginsburg spoke out this week about the future of the nation should Mr. Donald J. Trump (R-Manhattan) become our next president. Let’s just say she didn’t think it would be a good thing. She caught a lot of criticism from both the left and the right about a Supreme Court Justice inserting herself into the election process. In my view, the criticism is justified. We cannot be naive enough to think that they do not have personal opinions, but publicly, and repeatedly opining about the qualifications of a presidential candidate creates the perception of bias. Not good. Late this week Justice Ginsburg issued a statement expressing her “regret” but no apology. Hopefully, this will be a lesson. However, historians point out that through out our history Supreme Court Justices have been political and made political statements. As outlined in many articles this week, including one in historynewsnetwork.org at least nine Supreme Court Justices became involved in Presidential politics. William Howard Taft was the president before going to the Supreme Court as Chief Justice. I am sure his political views were well-known. Another, Charles Evans Hughes resigned from the Supreme Court to run for President, lost the election, and then come back many years later as Chief Justice. And there are others. For goodness sake, Chief Justice John Marshall was both Chief Justice and Secretary of State under President John Adams at the same time. Still, I think it best if Supreme Court Justices stay above election politics.
And then there’s this. At the Republican National Convention two security zones are to be established by law enforcement officials. One will be in the direct vicinity of the convention center and run by the Secret Service. Another, larger one will encompass much of center Cleveland. Since Ohio has laws that allow for the open carrying of fire arms without a permit, fire arms will be allowed in the second security zone. Here is what bothers me. Guns are okay, but a partial list of items that are not okay includes air rifles, BB guns, knives, slingshots, metal cans, thermos bottles, tennis balls, umbrellas with metal tips, coolers, gas masks, string, tape more than six inches long and on and on. For the safety of the participants. Here’s a question, because it caused confusion in Dallas. How are law enforcement officials supposed to know which people carrying guns are citizens exercising their rights and which are terrorists bent on mass destruction?
There has been so much more that has confused, amazed and appalled me these past few weeks but that is enough rambling for the time being. I am sure there will be more confusing, amazing and appalling events to come, especially with the Republican Convention beginning on Monday followed the week after by the Democrats. Good luck to us all.
Justice Antonin Scalia died sometime during the night Friday, reportedly of natural causes. Whatever one thought of his very conservative view of the law — based on what is often called an “originalist” view, or one where the original words as written are the law, not what the intent might have been or changes in community standards might be — he was also reported by those who knew him to be brilliant, funny and a good friend. I extend my condolences to his family and friends who are surely reeling from the shock. Although I rarely agreed with his votes or opinions, one can still recognize his innate kindness and abilities.
Unfortunately, such understanding of individuals as individuals, and their inherent abilities, does not extend to the Republicans in the United States Senate. While one might understand the opinion of those on the campaign trail vying for the presidency — all of whom think that they will one day be president and should have the ability to appoint a Justice to the Supreme Court — I do not understand the majority leader of the Senate claiming that the president has no right to appoint a replacement for Justice Scalia. Only an hour or so after the announcement of Justice Scalia’s death, Senator Mitch McConnell (R-Ky) announced that “this vacancy should not be filled until we have a new president.” Senator Chuck Grassley (R-Iowa) echoed Senator McConnell’s call to wait until the next president is sworn in. This is significant as Senator Grassley is the Chair of the Senate Judiciary Committee and can prevent a vote on a nominee within the committee and thereby prevent the entire Senate from voting.
I point out that a divided Senate confirmed Ronald Reagan’s nomination of then U.S. Court of Appeals Judge Scalia to the Supreme Court by a vote of 98-0. Things were not perfect in the Senate then, but it was still the era where if a nominee was eminently qualified, like them or not, the president’s pick was his pick.
This unprecedented and outrageous stunt announced by Senators McConnell and Grassley has many ramifications and probable consequences. One can only surmise that the personal animosity towards President Obama is so strong, that all of those Senate Republicans who espouse following the Constitution as their guiding light seem to have missed the part about the Supreme Court.
First, let’s simply look at the calendar. If a new president knew exactly who his or her nominee was going to be and announced it the day that he/she is sworn in as president on 20 January 2017, and assuming the modern average of about 67 days for confirmation hearings and votes, we would still not have a new Justice until roughly the end of March or early April 2017. About 13 or 14 months from now! Talk about the slow wheels of the legislative process. It is also unprecedented in our nation’s modern history. Not to mention that it leaves many important cases coming before the court this year susceptible to a 4-4 tie vote. More on that later. If this happened in September, then it might be reasonable to wait, but it is only mid-February, with about a year left in office for President Obama. Is he to do nothing until next January? Does he have no right to execute his office under the Constitution? It would be unprecedented for a sitting president to abdicate his Constitutional powers to the demands of the legislative body and turn over his power to appoint justices to the Senate. The Senate’s job is to “advise and consent” to presidential nominees, not to hijack presidential powers. Let them work with the White House and see if there is a compromise candidate for the court. Let each branch do what it is designed to do. Senator McConnell and other Republicans argue that elections have consequences. I agree. We elected President Obama to do a job. Twice. He should do it.
Second, the Senate Majority Leader’s announced plan to block any nomination from the president presumes that the individual is not qualified, merely by the fact that President Obama nominates that person. And they do not know who the nominee will be. I sincerely hope and expect that the president goes ahead with a nomination and decides to “leave it to the American people” (the catch phrase of choice for so many of the obstructionists) to see who is following the Constitution and doing their job. And it’s not exactly like the Senate calendar is jammed or packed with other pending legislation. Take a look and it is apparent that the Senate has plenty of time to fairly proceed with the process. (You can find the proposed calendar here. Note that being in session doesn’t mean they are actually working as most come in from their home states on Tuesday morning and go home on Friday.) To block a nomination when the nominee is unknown makes no sense. Hold hearings. Vet the nominee. Find out how qualified that person may be and then vote. Making demagogic pronouncements within an hour of the loss of a Justice is ridiculous.
Third, there is a presumption in the Republican Senator’s actions that the next president will be a Republican. Perhaps. The next president could also be a Democrat. Does the Senate think that it will just wait another four years for another presidential election to fill the vacancy?
Fourth, the practical impact of not filling the vacancy for over a year could be tremendous and further divide our already politically divided country. A 4-4 tie vote in the Supreme Court leaves lower court decisions in place. This has many possible consequences. The Supreme Court is set to make many important decisions in the upcoming year with scheduled cases including ones impacting abortion, The Affordable Care Act, one-person one-vote, affirmative action and a host of others. We the people may not like what those lower cases decide and want the Supreme Court to weigh in. In a 4-4 tie they have no impact.
More importantly, many Supreme Court cases are taken on because lower courts often pass down conflicting judgments. For example, if the U.S. Ninth Court of Appeals (the western U.S. including California) hands down one decision, and the Eleventh (the southeast including Florida) hands down a conflicting decision, which is the rule of the land? One nation of law-abiding citizens is no longer the case as the “law of the land” is different depending on where one lives. One function of the Supreme Court is to pull disparate court decisions together for a unified interpretation of the law. Such a scenario of conflicting opinions is not out of the realm of possibility when it will be over a year before the Supreme Court is at full strength.
I am many things, but I am not a political strategist. However it seems to me that the Senate Republican’s strategy to stonewall the president on nearly everything, but especially on the nomination of a Supreme Court Justice could backfire. Congress is already considered by many of us to be doing nothing to help the American people. Prognosticators say that depending on who the two major party nominees are, that Republican control of the Senate could be in jeopardy. It seems to me that if the voters do not see their Senators doing much of anything for a year, coupled with a few of the lower court decisions becoming the law of the land in a series of 4-4 votes in the Supreme Court, that some are going to take it out on their sitting Senators, especially in “blue” or “purple” states where Republican incumbents will be challenged by strong Democrats in the fall.
We will see how things actually unfold. I am not optimistic that the Senate will move forward and conduct the business that we elected them to do. Now not only will we have a divided legislative process, but the complete lack of cooperation between the Senate and the president will be exacerbated by a potentially hog-tied Supreme Court. Hog-tied only due to the personal animosity towards the president, which apparently takes precedence over actually doing their job.
It will be a long, poisonous year. I comfort myself in knowing that in our history we have been through some extremely divisive internal crises (Civil War anyone?) and come out the stronger for it. I hope that we enter 2017 with a new sense of purpose. It is a shame that we will have to waste an entire year first.