Trump Goes Iraq WMD…In Poland?

Donald Trump, Andrzej Duda

By Benjamin M. Adams on July 6, 2017    @BenAdamsO_O

During his Poland visit, Trump took a few questions from U.S. media — always a few too many from Trump’s standpoint. In what seemed like a bizarre non-sequitur, Trump pivoted from a question about Russian interference to talking about WMD in Iraq, which is a burning issue…from 15 years ago. This comment may be many things, but a non-sequitur it is not. Quite to the contrary, Trump’s seemingly odd response underscores one of the consistent themes that proved central to his campaign. Put more directly, the Bush administration falsehoods about Iraq WMD set the stage for Trump’s ascension to the presidency.

First, deceptions about Iraq WMD allowed Trump to personally devastate Jeb Bush in the primaries. Recall Jeb’s feckless waffling about whether or not the Iraq war was a good idea. Also recall the stunned silence that befell the debate stage after Trump attacked Jeb’s fairy tale about George W. Bush keeping America safe.

Second, the issue exposed Trump’s GOP primary opponents as complicit in the historical white-washing of one of America’s greatest foreign policy blunders. Aside from Trump, every one of the GOP contenders stayed silent while Jeb slung the false narrative that George Bush was a protector of the U.S., who had not responded to the 9-11 attacks by starting two unwise and unwinnable wars against countries that had not been responsible for the attack on our nation.

Third, the issue established Trump’s appeal to independents, sometimes referred to (unfortunately) as Reagan democrats. Ironically, Trump accomplished this by breaking Reagan’s Eleventh Commandment that, “Thou shalt not speak ill of any fellow Republican.”

Fourth, and perhaps most critically, the Bush-Cheney-Rumsfeld-Powell lies about Iraq WMD, coupled with the media’s failure to critically examine those false claims, created a fundamental mistrust among Americans of both the government and media. It was this deep mistrust that served as the platform from which Trump launched his campaign of demagoguery and distortion. To this day, this mistrust sustains Trump’s “Fake News” narrative, a prophylactic against media stories that threaten to expose Trump supporters to knowledge of his own lies and misdeeds.

So when Trump responds to a question about Russian electoral interference by talking about WMD in Iraq, it is anything but a non-sequitur. Rather, it is a continuation of his central theme: Don’t believe anything that anyone tells you. Don’t trust either political party. Don’t trust the media. I alone can fix this.

My Dad, the Squeegee Kids, and Me

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By Benjamin M. Adams on July 5, 2017  @BenAdamsO_O

Growing up in and around Manhattan in the 1970’s was kind of a wild ride. The juxtaposition of that New York City to the city we know today is stark. Take as an example my experience of watching games at Yankee Stadium: I heard all manner of profanity yelled at decibel levels that I had never imagined possible. People passed joints around freely. I witnessed frightening brawls between drunken fans, which were always cheered riotously as people craned their necks for a better view. Cops responding to break up the fight were booed boisterously by the crowd. This was the view from the good seats. The subway cars taking people to and from the stadium were covered with graffiti, no exceptions. If you want to understand just how much things have changed, go to Yankee Stadium today and try to yell profanity or smoke a joint. You will experience firsthand how profoundly the city has changed, and you will experience that change at the hands of the police.

A similar transition has occurred in public spaces across the city. Walk through Times Square today and then remember the 1970’s version if you can. The transformation in those spaces is no less dramatic than the one that has taken place at Yankee Stadium. While I admit to feeling a strange sense of loss at the disappearance of the old, gritty regime, I am not one to romanticize the past and pretend that the changes are somehow all bad. As a boy, I treasured my trips to watch the Yankees play above all other earthly things. Still, I wouldn’t take my own kids into that kind of atmosphere if it existed today. As much as I loved the old NYC, I wouldn’t have wanted my wife walking alone in Times Square or trying to get a bus at Port Authority late at night. Now, I wouldn’t have the slightest concern. So, it’s all good, I guess.

Or perhaps not.

My dad owned a flower shop at the northeast corner of 37th Street and Third Avenue. That stretch of 37th is one of the streets where traffic exits from the Lincoln Tunnel, so there was always a steady stream and always lots of cars stopped at the traffic light. (That part certainly hasn’t changed.) A disproportionate share of these cars carried unsuspecting people from New Jersey. Through a confluence of factors, this street was the perfect place for squeegee kids to camp out and ply their trade.

Even if you live in NYC today, you’ve probably never seen a squeegee kid. These were kids from Harlem who came downtown with a bucket, some soap, and a squeegee. They filled their buckets with water and set them down on the sidewalks along 37th Street. When a light would turn red, cars would stop. The kid would then take his wet squeegee and start cleaning the windshield of a car stopped at the light. In law, we call this officious intermeddling — when you do work for someone that they didn’t request. The kids didn’t ask the driver for permission to clean their windshield. They just approached the car and started cleaning the windshield.

By the time the driver had any idea what was going on, the kid was always halfway done. At that point, resistance by the drivers was futile. Their windshields were soaped up before the drivers knew what was happening. They certainly weren’t going to stop the kids from finishing the job by removing the soapy water with the squeegee. After the windshield was clean, the kid would stand by the driver-side window hoping for a tip.  If the driver didn’t tip, they had gotten a free window washing. If a tip did come, the coins were promptly dropped into the bucket of soapy water for safe keeping while the rare dollar was pocketed. Sometimes the tip came — more often it did not — but never did I see a kid offer an unkind word or gesture to any driver. I did see plenty of drivers getting angry at the kids, but the kids would just laugh it off. The squeegee kids had no time for drama. They were working.

I guess my dad realized this because he let the kids mingle among the plants and flowers that he would leave on the street for display. He let them use his hose freely so that they could periodically refill their buckets with clean water. He may not have loved those kids working his corner, but he never gave any indication of that. He treated them for what they were — kids working hard to earn money, just like the suburban kids who delivered newspapers to our new home in Westchester. I loved spending time at the store with my dad. Often I went on a Sunday after he took us to Church.

One particular evening, dad and I were headed home from the store just as two of the squeegee kids were done for the day. Dad asked them where they lived. They volunteered the information easily, and he offered them a ride home. So me and my dad and the two squeegee kids hopped into his Cadillac and headed uptown on Third Avenue. I’m sure it was a brief ride, but it was long enough for dad to ask them some questions. I don’t remember them precisely but I know he asked them how much money they had earned that day, and I recall being surprised at how much it was. To my greater surprise, I learned that one of the boys was turning over his earnings to his family, who needed them for basic living expenses.

That was what I remember, but I took away much more. I took away an appreciation for my dad’s ability to see beyond race and class, to see not only the goodness in these young men but also their innocence. I saw how easily he could break through boundaries that most people view as impenetrable, not by acting cool or hip, but simply through the genuine care he felt for them. I also took away a deep appreciation for what a good man my father could be and how much I wanted to be like him.

The NYC of old. It was dirty and it was gritty, but it wasn’t all bad.

Fixing America: Replace Impeachment with Vote of No Confidence

 

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By Benjamin M. Adams, July 3, 2017   @BenAdamsO_O

America needs to scrap the impeachment process and replace it with a simple no-confidence vote that will trigger a new election. This idea came to me by confluence of witnessing the British elections while concurrently trying to process the fact that Donald Trump is only six months into a 48 month term of office. It was an accidental mental mashup, like the old TV commercials for Reeses’ Peanut butter cups. Designing a better electoral system is somewhat more complicated than candy and will require more than mere happenstance.

By now, most of us have realized that impeachment is a purely political process. A president can only be impeached for “High Crimes and Misdemeanors.” However, the Framers of the Constitution left us no definitive guidance as to what constitutes either. Moreover, the Supreme Court is never going to define it for us due to political question doctrine and related issues of justiciability. For all practical purposes, an impeachable offense is whatever Congress says it is. In that sense, the impeachment process is faux-adjudication. It is politics masquerading as a criminal proceeding with an indictment by the House and a trial in the Senate.

Impeachment leaves America with a president who didn’t run for the office and wasn’t elected to it. If Trump were to be impeached, Pence would be POTUS for the remainder of the term. At the very least, Pence was on the ticket, which hasn’t always been the case. When Nixon resigned under the threat of impeachment, Gerald Ford completed his term, and Ford wasn’t even on the ticket with Nixon in 1972. (He had replaced Vice-President Spiro Agnew, who resigned under a cloud of corruption.) So impeachment should be disfavored because it leaves America with an unelected President. It also leaves the U.S. without a vice-president, at least temporarily. These are sub-optimal results, to say the very least.

Deeper problems exist with using the 25th Amendment to replace a president. Taking action under the 25th Amendment involves a vote by a small number of unelected and relatively obscure officials and would lack legitimacy in all but the most obvious and extreme conditions. So while America has two paths for replacing a president, neither of them is sound and neither is consistent with democratic principles. The solution to this problem is fairly simple: When America finds itself with a president who is corrupt, mentally unstable, or grossly incompetent (or perhaps all three), then a vote by the House and Senate should be sufficient to trigger a new election.

The benefits of this approach are fairly obvious. When America is best-served by replacing a sitting president, it should be, to the maximum extent possible, the product of democratic processes. Congress consists of popularly-elected representatives of the people.  A super-majority vote — 50% in the House and 67% of the Senate — is currently required to impeach a President. This is why I prefer impeachment immeasurably when compared to taking action under the 25th Amendment: It reflects the will of the people as expressed by their representatives, and it also preserves accountability since those voting for and against impeachment will eventually face the voters if they wish to continue serving.

I dislike requiring a higher threshold in the Senate than in the House. My preferred formulation would be that a vote of 60% of the House and 60% of the Senate should be sufficient to trigger a new election. Moreover, the new election should be a do-over of the last election. This means, every House seat is up for grabs and same for 1/3 of the Senate. This will prevent any given political party from gaining control of the Congress and then immediately impeaching the president. If they do so without deep public support, such improvidence will lead to the loss of its treasured majority status. In other words, Congress will have lots of skin in the game, so they are unlikely to abuse their no-confidence power. For that reason, I would be entirely satisfied with a simple majority vote triggering a new election.

A number of other benefits would accrue from this change. We dispense with the phony formalism of “High Crimes and Misdemeanors,” which has no discernible legal meaning. We replace this Constitutional pretense with an honest, “Ooops. We made a mistake at the last election.” We further dispense with the Senate “trial,” which holds no value whatsoever. Does anybody honestly think that the Senate vote on President Clinton’s impeachment would have changed if there had been no trial? The impeachment trial is America’s only “show trial.” For those unfamiliar, show trials have a very bad history across the world and are still embraced today in illiberal states. With the elimination of the trial, we also eliminate the participation of the judicial branch in a process that has always been purely political anyway.

Blocking John Podhoretz: When Self-Esteem Finally Kicks In

jpodBenjamin M. Adams on April 10, 2017   @BenAdamsO_O

Let me be clear. J-Pod blocked me first, and it was basically for no reason. Nobody had ever blocked me before he did it, and nobody has blocked me since. Truth be told, one twitter fruitcake has recently blocked me and thereby proven to be the exception. However in doing so, Shatner has simultaneously proven the broader rule: That it is *straight cray* to block me on twitter. The only reason to block me is if you are deathly allergic to either snark or reason, in which case your twitter-life seems destined to be nasty, brutish and short.

Granted, I was new to twitter when Podhoretz blocked me. Granted further, we were in the frightening-2016-resurgent-anti-semitism twitter. I was mostly unfamiliar with twitter-culture, oxymoronic as that term may sound and be. Equally important is the fact that people I followed were new to me. Sure, I’m basically just a rando dude on twitter, but to the people I follow, I’m a known rando dude. People I follow generally understand that my primary twitter aspiration is to personify the platonic form of smart-ass. They also generally know that I oppose things like, um, Nazism.

Anyway, to make a long story around a thousand words, there came a day that John retweeted a Nazi who had used a repulsive Jewish slur against him. I think the slur rhymed with bike, but I don’t remember. Racial epithets mostly sound the same to me, although I will remember the n-word forever if you say it the wrong way.  So I tweeted at John, asking him why he would give a platform to such vile anti-semites. My opinion is that retweeting these cretins gives them the thirty seconds of fame that they crave. More importantly, retweeting them simply serves to encourage rather than deter them. Put more simply, why give succor to evil by giving it a broader audience? So that’s my opinion on the matter. I figured John had a different opinion, which is why I asked him about it in my tweet. I guess John did not appreciate my question because he blocked me without answering. I fully admit to a feeling of disbelief. Incredulously, I cried into the void. The only response that came back was from the Nazi, who consoled me. “Don’t sweat it. He blocked me too.”

So I guess there *is* a bright side to most things. In this case, there are no less than two. First, it seems that I was able to bring out the nurturing side of a Nazi. Second, and no less important, is that J-Pod will not be be further distracted by my tweeted thoughts and questions. That will leave John with more time to write about how the Left is intolerant of debate.

John is Going to Stay Blocked For Now

While I am open to the idea of someday unblocking J-Pod, I am not sure that a speedy rapprochement is in John’s best interest. Let him miss my delicious thought-nuggets, and let him ask himself why. When this questioning becomes more frequent, John may be forced to look deeper inside himself. Perhaps John will realize, in a consequential rather than the typically fleeting sense, the same thing that I have come to realize: That I am too quick to react and too harsh in my reactions, and when I succumb to those impulses, I am a verifiable asshole. Same goes for you, John.

John, please realize one more thing. I am a small man. As a consequence of this bred-in-the-bone pettiness, I take the most infinite pleasure in the idea that you will from time to time find yourself blocked from reading my tweets. I admit to fully and corruptly adoring the thought of you scratching your scalp and feeling some mix of confoundment, confusion, and contempt. John, when I said that I was a small man, I meant really, really small. Can you hear me now, John? Well now. I guess you can’t. Instead of hearing me, see the same “unavailable” inanity that I must countenance each time your thoughts cross my TL.

John, there is a final thing that I ought to have shared– some truths about my maternal great-grandparents: Isadore was from Crackow, Poland. He married a woman named Bertha. She was from Hungary. Bertha was one of four children, but all of her siblings were killed by Nazis. So when you blocked me along with that redneck-wannabe-nazi, you were suggesting to the world that I was somehow a sympathizer of these vile, Nazi-loving cretins even though I owe my very existence to the sheer happenstance that allowed one of my ancestors to escape their murderous rampage of evil. So, John, you need to stay blocked for now, simply because this is the most effective way that I can encourage you to contemplate the moronic, unbridled dickishness of what you did.

My descendance from Holocaust survivors does not, as it turns out, begin to explain why I feel personally offended by racism. Rather, and probably to a myopic extent, I grew up understanding race in terms of  white people against black people — as a continuing, centuries-long conflict between the evil of white supremacy versus the resistance of the descendants of the African people enslaved and oppressed under its doctrine. I still see white supremacy as focal to understanding American social and political development, but contemporary local and world politics obviously reflect bigotry across a far broader spectrum than merely black and white. This includes surging Anti-Muslim sentiment, hatred and violence against the LGBT community, political targeting of “Mexicans” and of course the ubiquitous anti-Semitism now boldly emerging from the shadows. Let’s face it. It’s kind of ugly out there. At some times more than at others, it feels like bigotry is on the march and good people are reminded by Dr. King to oppose injustice anywhere as a threat to justice everywhere. In that sense, I am compelled to oppose bigotry whenever I see it– not simply when I see it directed against “my own.”

Maybe this is one thing that sets me apart from John Podhoretz. Racism is the number one reason — by far — that I never supported the GOP.  John wasn’t similarly hampered by the same reservations, but that’s a post for another day. For today, I want to be on good terms with Podhoretz. Accordingly, I will not link to controversial writings about his anti-gay sentiments, nor to his history of low-brow insults. I further refuse to hold his father’s racism against him, nor do I blame him for his receipt of nepotistic benefit when he took his current position at Commentary. I refuse to do *any of this* because Americans need to start reaching across the divides or partisanship, sectarianism, and ideology. I even apologized to Hugh Hewitt for heaven’s sake, so anything really is possible. The key and missing ingredient in this process is that Americans need to start listening to one another more and they need to start listening better. While that may not happen for me and J-Pod in the immediate future, I still have the audacity to hope.

Immunity for Flynn: Don’t Do It

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Benjamin M. Adams   —    March 31, 2017   —   @BenAdamsO_O

Over the past couple of months, I’ve tweeted a bit about immunity, mostly because it’s made up of the hot, thick smoke that means fire is close. Beyond its significance as a signal of culpability, discussions about immunity normally indicate progress in an ongoing prosecution. The mini-thesis of this post is that Flynn has been caught and should not be given immunity. He should be tried and sent to jail if found guilty. The one instance in which Flynn should be immunized is if he is able to directly implicate President Trump.

Several additional thoughts on immunity:

  • Flynn is busted. Registering “retroactively” as a foreign agent is like getting a law license retroactively when you’ve been caught practicing without one. It doesn’t work that way. He also may have lied on his background forms. Those are relatively small things, but Flynn took money from Russia and Turkey so more serious charges are possible. Either way, Flynn is guilty of crimes that could send him to prison. That’s where we stand now.
  • Flynn is probably desperate for immunity. He has been caught violating federal law. If he can finagle immunity for testifying, Flynn will have gotten away with those crimes. Sensing the opportunity, Flynn’s lawyers have gone public, attempting to whet our appetites with promises of a “story to tell.” The trouble with that is public opinion doesn’t get you immunity. What gets you immunity is specific information that investigators and prosecutors want from you.
  • Prosecutors cut immunity deals when a drug dealer testifies against their supplier or when an employee testifies against their boss or when one politician implicates a senior, more powerful one. Investigators always move up the chain, not down, and they are doing that now. One can argue that only POTUS, and perhaps Pence, are up the chain from Flynn. Since Flynn has yet to secure a proffer of immunity, it suggests one of several possibilities. First, Flynn may not have inculpatory information on Pence or Trump. Second, he may have the goods, but is still attempting to get immunity while still protecting them. A third possibility is that Flynn has the goods and will get his immunity at the end of the day, but that he is being allowed to blow in the breeze for right now.

No matter what happens, we ought to caution against turning Flynn into the 2017 version of Ollie North simply because we are eager for information. Last night on The Rachel Maddow Show, Wall Street Journal reporter Shane Harris (who broke the immunity story) argued that Flynn, “clearly . . . has a story to tell . . . and it makes perfect sense . . . that he would seek those [protections] before he gives that testimony to investigators.” One hopes Shane Harris was merely paraphrasing the arguments of Flynn’s attorneys. Either way, the assertion is utter nonsense. What makes “perfect sense” is that Flynn is a rat trying to save his own skin. Sure, I’d like Flynn to turn states evidence and implicate everyone except Trump in one fell swoop, but that temptation should be resisted. If Flynn has the goods on Trump, we can let him walk just for the sake of ending our national nightmare. If not, then prosecutors should try to “lock him up” like he deserves.

Are Progressives Finally Waking Up and Realizing the Filibuster is Their Enemy?

By Benjamin M. Adams       March 27, 2017        @BenAdamsO_O

In 2000 and again in 2016, Progressives were screwed by the peculiar anti-democratic nature of the electoral college. In both years, more votes were cast for Gore and Clinton yet the lasting legacies of those elections are: The Iraq war, Alito & Roberts on the Supreme Court and whatever mix of policy chaos and appointments that will inevitably flow from the Trump presidency. Progressives must realize by now that they are disadvantaged by the anti-democratic nature of the electoral college, without realizing that the filibuster has an even stronger anti-majoritarian tendency than the electoral college. Under Senate filibuster rules, you can have 59% of the senate votes and still lose. In a presidential election, the winner of 59% of the votes would never lose the electoral college.

There is a critical distinction, however, between these two anti-progressive institutions. That is, DEMs can actually do something about the filibuster. For practical purposes, the electoral college can’t be changed. It requires a Constitutional amendment and a sufficient number of states would never sign on for reasons that go beyond this essay. However, the filibuster can be addressed and the GOP is even willing to do the dirty work for them. Progressives should not allow the DEMs to blow this opportunity.

Here’s the full badness of the filibuster on display:

  • The 29 most populous States in the US total approximately 273 Million. (273,269,546)
  • The 21 least populous States in the US total approximately 35 Million. (34,886,792)
  • The representatives of those 273 million Americans would produce 58 Senate votes, not enough to overcome the 60-vote cloture threshold.
  • Thus, the filibuster at its mathematical worst gives 35 Million people a veto over 273 Million. This is not a mere super-majority. This is categorically anti-democratic.

(Statistics from Wikipedia and the 2010 Census)

So why do progressives view the possible loss of the filibuster as a net negative? The answer is short term thinking. Right now, the filibuster is the DEMS best tool to defeat GOP legislation in Congress. Having no filibuster in 2017 and 2018 means Trump will have an easier time pushing his agenda through Congress. Then again, if there was no filibuster in 2009, we would be 8 years into a single-payer healthcare system.

Essentially, the fight over Gorsuch may be helping progressives realize that in the big picture of things, the filibuster is not a friend of progress. The easiest syllogism I can imagine is this: (1) The filibuster gives great advantage to the status quo over change by requiring large super-majorities, (2) Progressives, by definition, do their thing by changing the status quo, and therefore (3) the filibuster disadvantages Progressives.

QED

Notes

  • The filibuster is not in the constitution. Until 1917, cloture required 100 votes.
  • Any discussion of  the filibuster needs to account for the fact that its historical impact has been to grant outsized influence to white men from rural states.
  • Common Cause and Senator John Lewis tried to sue the Senate over the use of the filibuster. The plaintiffs were represented by the infinitely capable Eric Segall (@espinsegall) but the case was appropriately dismissed for lack of standing.
  • The best political science book on the filibuster (IMO) is Filibuster: Obstruction and Lawmaking in the U.S. Senate by my former prof Gregory J. Wawro & Eric Schickler

 

Hamilton 77 & Amendment 28: A Better Way to Choose for SCOTUS

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By Benjamin M. Adams, March 20, 2007, @BenAdamsO_O

Who denies that the confirmation process for Supreme Court Justices is not merely broken but grotesquely so? What dignity remains therein for anyone wishing to defend it? The first time I watched confirmation hearings on television came in 1991, when George H.W. Bush nominated Clarence Thomas to replace Thurgood Marshall. Those confirmation hearings, which took place under the auspices of Judiciary Committee Chairman Joe Biden, taught me exceedingly little about Justice Thomas’ Commerce Clause jurisprudence. I did learn, however, an unexpected amount about his alleged taste in pornography. I note that my disgust at the Thomas hearings does not reflect a belief that Justice Thomas spoke to Ms. Hill appropriately at all times. As her boss, Thomas crossed the line terribly, if the allegations of Ms. Hill are all true. That particular topic ought to be debated, but that inquiry is separate from the question of whether Ms. Hill’s last-minute allegations ought to have disqualified him from serving on the Supreme Court after a lifetime of preparation. Beyond dispute is that a smear campaign took place against Thomas designed to portray him as a sexual deviant, replete with all the dogwhistles from the left that one might imagine.

Still bitter at Democrats from his confirmation mugging, my guess is that Justice Thomas is absolutely certain to retire under a Republican President so as to ensure that he will be replaced with a conservative jurist. I wouldn’t be surprised if a Gorsuch confirmation this spring is closely followed by a Thomas retirement, but that is based almost exclusively on speculation. At the other end of the figurative bench, RBG missed the immensely long window which was open during the Obama years. She eschewed retirement under a liberal president as she approached and then passed the age of 80, rejecting the opportunity to retire strategically, as Thomas surely will. Justice Ginsburg is now looking at a minimum of four more years on the bench, assuming she doesn’t want to see Donald Trump replace her on the Court. One can only assume that the Justice loves her job, even in her 80s, despite the demands of the position. I really do admire her immensely for that.

While the 1991 Hearings were abhorrent, it is my estimation that the bar has moved remarkably lower since that time. When Merrick Garland was nominated in 2016, he was neither smeared nor maligned. Instead, the Senate simply ignored Mr. Garland and ignored their constitutional duty in the process. These are strong words but they are the thesis of this essay: that the Constitution confers upon the Senate the right to reject a nominee for any reason, but also imposes  upon the Senate  a duty to hold hearings and a vote on the nomination. The Senate’s refusal to hold hearings for Mr. Garland, or any other nominee, represents a sound rejection of the Framer’s intended Confirmation process. I will explain why.

Article II of the US Constitution states that the President, “shall nominate, and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court.

This is a most meager amount of text with which we can work, but we still can glean some clues. First, the Constitution places an affirmative duty to act through the use of the word “shall.” There is no option to not act. The Constitution says that the President and Congress shall. Yes, one might argue by way of syntactical deconstruction, that the word shall only modifies the word nominate and not the words “advice and consent” Correspondingly, one would then argue, that the affirmative duty applies to the President but not to the Congress. Such an interpretation, however, is self-serving formalism– the type that not only misses the clear intent and spirit of the Constitution, but flouts it instead. Indeed, it defies all logic to imagine that the Framers, when delineating the contours of the confirmation process, decided to impose an affirmative duty on the President to nominate a judge while rendering discretionary the role of Congress in this singular process. Such an interpretation turns the entire process on its head. It also turns history on its head, as the most basic inquiry will reveal.

The text itself also suggests that the Framers intended at least some deference to the President. After all, the word “consent” is used. “Advise and Consider” would connote less deference. “Advise and Vote” would connote no deference. Having said that, I am not a rigid textualist when it comes to this type of thing. More to the discreet point, I subscribe to the view that preambles lack specific Constitutional meaning. While preambles are not meaningless, they need to know their place, so to speak. For example, I reject a Second Amendment interpretation in which the “well-regulated militia” tail wags the “right to bear arms” dog. Thus, any deference suggested by the words “advice and consent” is overridden by the agency granted to Senators under the Constitution. Senators are free to ignore the guidance afforded them in the preamble, and they do.

Thus, I hold the view that Senators may base their confirmation votes on litmus tests, or on constituent opinion, or on partisanship, or on any other smart or stupid metric they choose to adopt. I take no position on what guides a Senator’s individual confirmation votes on any given nominee, other than conscience. Senators have every right, as Hamilton says in Federalist 77, to “employ . . . their right of negative upon” any given nomination. The check on potential abuses is that Senators are accountable to voters. That is a foundation of our Constitutional democracy. However, in order for that Constitutional democracy to function properly and as intended, a minimum of hearings and a full Senate vote are required.

Guess who agrees with me. If you picked Alexander Hamilton, the man who authored Federalist 77 and 78 to explain and advocate for the Constitution’s confirmation process, you won. In fact, those two essays remove any doubt as to why the Framers entrusted the Senate with the right to block presidential nominations, which they most certainly did as a way to prevent a President from appointing cronies and incompetents. Here is a key point:

In Federalist 77, Hamilton makes clear his belief that the Senate will act as a responsible check on the President — and can therefore be trusted with the power to reject a nominee — because if the Senate rejects a good nominee, the public will know about it from hearings and will know exactly which Senators voted against confirmation. Hamilton in his own words:

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The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate

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Hamilton is plain as day. If the Senate tries to reject a qualified candidate, they will be exposed by the hearings and individual Senators will be punished at the polls for their votes. For that reason alone, Hamilton believed that the Senate would not abuse its power by unfairly rejecting a qualified nominee. However in 2016, the GOP majority in the Senate wanted to do just that — reject a qualified nominee named Merrick Garland. Hearings and a vote would have exposed his members at the polls, as Hamilton intended. This presented a problem for the Senate Leader, which he “solved” by cravenly disregarding the Constitutional protections elucidated in Hamilton’s 77 — first by neglecting the Senate’s obligation to hold hearings and then by neglecting the Senate’s duty to hold a vote — thereby eliminating the electoral accountability essential to the healthy functioning of our Constitutional democracy.

Thus we can see that the Senate’s refusal to hold hearings and vote on the Garland nomination represents a fundamental and monumental breakdown both of the normal constitutional order as well as the political norms of our democracy. Lest there be any doubt remaining on this point, Federalist 76 further reinforced the notion that the Constitution requires the Senate to act upon presidential nominations and does not anticipate nor allow for the refusal of a branch to take up its Constitutional function. In 76, Hamilton again discusses the split at the Convention between those who wanted the President to have the power to appoint (no Senate confirmation) while others prevailed in favor of a power to nominate with a Senate that can block the nomination. Speaking of those who advocated a system of Presidential appointment — meaning no Congressional consent would be required — Hamilton states:

They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

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This last part is critical. Hamilton is pointing out that the Senate is never going to be able to control the appointment because a President will respond to any Senate rejection by appointing another nominee that he likes. So, Hamilton concludes, the Senate can reject nominees all they want but in the end they will need to confirm SOMEBODY and that somebody will be a person nominated by the President. What is clearly not anticipated in Hamilton’s explication is the idea that the Senate would refuse to confirm ANYONE. As an American patriot, Hamilton could not anticipate Mitch McConnell and the current neo-nihilism of the modern GOP. Hamilton probably could not have anticipated the “nothing matters” public discourse nor could he have imagined the contemporary post-truth political climate. Beyond anything else, and more directly to the point, one suspects that Hamilton could not have imagined a leader as craven and feckless as McConnell. Hamilton certainly would have recognized the great irony in Mitch McConnell willingly subverting the Constitution in order to get a so-called “Constitutionalist” onto the Supreme Court.

In any event, the case is clear — the Senate employs its right of negative upon presidential nominations not by abdication of its responsibility but through the fulfillment thereof — by holding hearings, taking a full vote, and then facing the voters.  Anything less lacks Constitutional legitimacy. Mitch McConnell and the Senate GOP are cynical cowards for their approach. The Democrats have every reason to attempt the same approach that worked for GOP — that is, keep Scalia’s seat open in the hopes of a DEM victory in 2020. Let’s hope they don’t. Gorsuch is a fine jurist and seems from all appearances to be a man of high character as well. He should be confirmed. If Gorsuch is not confirmed, however, it will not be for a lack of hearings. Thus, his denial of the seat would be very tough political payback, but nothing beyond that.

When did it get so bad? You are telling me that it gets much worse?

The nomination of Robert Bork is generally thought of as the moment when the politics of Supreme Court nominations became mostly about politics and less about qualifications and deference to the President. For those who say the process was always rancorous and partisan, I would remind you that Justice Scalia was confirmed 98 to 0. As a consequence,  the words “Advice and Consent” have been stripped of their intended meaning like never before. A venerated tradition of vetting the nominee and weeding out the potentially unqualified has been replaced by continuous smear, abdication of duty, and party-line votes. And yet, things could turn decidedly worse and it is very easy to imagine just exactly how that might happen.

Imagine that a Justice dies or resigns at some point in the near future, while there are still eight members. At that point, we would be looking at a 7 member court. This is where things get interesting, not because there is anything wrong with a 7 member court. (As an odd number, this is obviously better than the current number of 8 Justices.) The interesting part is we all know that Trump could run into serious trouble at any moment. In that case, it is possible that none of his nominees would be confirmed. Thus, the winner of the 2020 election would likely be appointing at least 2 but possibly (in light of the age composition of the existing Court) as many as 3 or 4 justices in a single 4-tear term. This would be a dangerous moment for American democracy for two reasons.

First, the stakes are not supposed to be so high for a single presidential election. Some elections will naturally have high stakes to be sure, but we don’t need or want rules which heighten the stakes unnecessarily through a haphazard process for replacing Justices. The risk in having such high stakes is the increased likelihood that segments of the losing side would either contest the result or become politically alienated. The danger that poses to our democracy should go without saying.

So my experience watching confirmations for 25 years has been to witness a process that has sunk from the ugly to the anti-constitutional. My body of thought about confirmation was baptized in the vulgarity of the 1991 Thomas hearings and died in 2016 at the hands of the Senate of the 114th Congress. The cause of death was the non-experience of witnessing the non-hearings and the non-votes on the Garland nomination. So things are terrible and could get worse. At this point, you are clearly asking if there is any solution to the mess. Funny you should be asking that. I do happen to have one in mind.

 

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PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

GOVERNING THE REPLACEMENT OF JUSTICES TO THE SUPREME COURT 

  1. The number of Supreme Court Justices shall be nine (9).
  2. Following each presidential election, the longest tenured Supreme Court Justice (the Senior Justice) shall be replaced. Within 30 days of inauguration, the President shall nominate a new Justice (Nominee) to replace the Senior Justice. Said Nominee shall become a member of the Court immediately. The Senate shall then have 60 days to hold hearings on whether or not to confirm the Nominee. If the senate votes by 2/3 to reject the Nominee, then the Nominee is removed from the Court immediately. The president shall then nominate a new Nominee who shall also become part of the Court immediately and a new 60-day period for rejection shall commence in the Senate.
  3. In the event of the death or retirement of Justice during* the President’s term, then the President shall choose an Interim Justice. Following the next inauguration, the Senior Justice shall not be replaced. Instead, the new President shall nominate a new Justice (Nominee) to replace the Interim Justice. Said Nominee shall become a member of the Court immediately. The Senate shall then have 60 days to hold hearings on whether or not to reject the Nominee. If the senate votes by 2/3 to reject the nominee, then the president shall nominate a new Justice (Nominee) who shall also become part of the Court immediately and a new 60-day period for rejection shall commence in the Senate.
  4. In the event of a second death or retirement of Justice during the President’s term, then the President shall choose a Second Interim Justice. Following the next inauguration, the Senior Justice shall not be replaced. Instead, the new President shall nominate two (2) new Justices (Nominees) to replace the Interim Justice.
  5. In the event of additional deaths and/or retirements, then the President shall appoint additional Interim Justices and each new President shall appoint two (2) new Justices until all interim justices have been replaced. Once all Interim Justices have been replaced, then following the next Inauguration the new President shall replace the Senior Justice.

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That is the my proposal, in toto. These five (5) paragraphs can fix the dysfunctional mess masquerading as America’s SCOTUS confirmation process. The precise wording may change a bit, but the basic mechanics are unassailable. Of course, I invite people to assail it with vigor. In advance, let me briefly unpack and describe the major features of the Amendment:

First, a President appoints one and only one permanent Supreme Court Justice per term. The nation will be spared from the hit-or-miss randomness of some Presidents getting no nominations in a term while others could get two or more picks in a single term. Moreover, the President’s SCOTUS powers should not rise and fall as a salient issue in Presidential elections based on the likelihood of an opportunity to nominate, especially since these opportunities often turn on unforeseeable occurrences. Under the new system, every POTUS will get a single nomination during their Term. Therefore, the issue of SCOTUS will always be salient to a campaign, as it should be, without reaching today’s fever-pitch. Equally important is that on the rare occasion when a President will be allowed to nominate two Justices in a term, the electorate knows this in advance of the election. This will lead to an increase in the public’s understanding of how and when a Presidential election could influence judicial outcomes. For example, one could take all 5-4 decisions in which the senior judge (who will be retiring) is in the majority, and you have the complete set of cases that could potentially be reversed after a new president is elected.

Some people believe that ending lifetime appointments of SCOTUS Justices would be a drastic step. Hamilton, in Federalist 78, argues that giving judges tenure is the best way to protect the independence of the judiciary. He is probably correct in that. On the other hand, the decreased capacities that come with age make increased turnover on SCOTUS an obvious benefit, provided the Court is still protected from interference from the other branches. This proposal does not really engage that debate. Under the proposed amendment, Justices will serve for a really, really long time. Each Justice will start as the junior member and can serve until they have served as the senior members for 4 years (or even longer in the event of an early retirement). So in theory, you would be replacing the Senior Justice each term which means an entirely new court every 36 years. A nominee who is 49 years old can serve on the Court, at least until he is 85, and perhaps longer. Merrick Garland could serve at least until the age of 99. Keep in mind only two Justices in our entire history have served that long. So the amendment doesn’t in any meaningful way curtail the important tradition of giving tenure to Justices. Moreover, when thinking about lifetime appointments, we ought to imagine a time in the future when people may live as long as 200 years. Do we want a President to pick a justice who will serve for 160 years?  Lifetime appointments are already anachronistic and will only become more so over time. There is thus no early retirement and no meaningful limit on lifetime tenure. It simply creates an organized and more balanced system for replacing Justices.

Reduced Powers of the Senate.  To be sure, the Senate will have slightly less power over SCOTUS, but there are reasons not to lament this. First, the Senate has increasingly misused and abused the weighty confirmation power originally conferred to it under the Constitution. Second, the reduction in power is minimal. Any unqualified and disqualified candidate would surely find 2/3 in opposition. Third, at the end of any confirmation process, there is a guarantee of another Nominee in less than four years. So for a given political party that opposes the  Nominee, the focus is shifted from obstructing a Nominee to winning the next election– as it rightly should be. This restores us to the prior balance where the popular will is supposed to dictate the composition, over time and indirectly, through a presidential election every four years. Final note is that the Senate is 100 Members and only requires 67 to defeat a nominee. To the extent the Senate remains united across Party line, the Senate still has total control over a nominee’s fate. To the extent that the Senate allows itself to be fractured across partisan lines, it will cede some power to the Presidency. Again, none of this seems lamentable.

Resignation & Death One interesting feature of the new system is that a Justice who wants to retire strategically simply cannot do so. A retiring Justice will simply give the next undetermined president the opportunity to replace them. Moreover, the entire motivation for strategic retirement ends since the ideological composition of the Court will be henceforth determined by elections. In other words, the amendment assures that each time a conservative president is elected, there will (likely) be a conservative justice nominated and that each time a liberal president is elected, there will (likely) be a liberal justice nominated. Eliminating strategic retirements is a minor benefit but part of a major package of benefits, so to speak. Additionally, one imagines that future Presidents will continue the trend of appointing younger Justices who will serve on the Court for many years. A Justice confirmed to the Court in their 40’s could spend the full 36 years on the Court. Of course, many Justices will not be willing or able to serve that long while a few will serve longer. On balance, it is very likely that Interim Justices will be appointed from time to time. That will create some “two-judge” presidential elections. Of course, every time an Interim Justice is appointed it does not mean the next election will always be “two-judge” since the senior justice who was scheduled to be replaced but “bumped ” by a retiring or dying judge, will simply hang on an extra four years such that a two judge election will not happen. The salient feature, however, is that the public knows in advance whenever the next President will be allowed to nominate two Justices.

Enacting a Constitutional amendment is a task rendered exceedingly difficult by the framers. However, the likelihood of successfully passing an Amendment has clearly increased as information and political action have themselves become increasingly coordinated via digital networks. There is no doubt that political forces can mobilize and coordinate better now than at any time in U.S. history. One hopes this will lead to improved governmental institutions that better serve Americans. Along those lines, the Amendment described above eliminates the current SCOTUS confirmation process, which produces some of the most abhorrent scenes in American political theatre, and replaces it with a vastly better system which continues to respect separation of powers and the value of an independent judiciary.

 

 

 

 

 

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