Tag Archives: partisanship

Reflections on Kavanaugh And The Rule of Law

I cite to a lot of publications, but I’ve not previously quoted (or, let’s be honest, read)  America: The Jesuit Review of Faith & Culture. That said, I am in full agreement with the article in which that journal withdrew its endorsement of Brett Kavanaugh.

But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

Congress and the Administrative Branch are broken and dysfunctional. Brett Kavanaugh’s nomination is an assault on what remains of the legitimacy of the judicial branch. Together with the shameful refusal to grant Merrick Garland even the courtesy of a hearing, it represents a surrender to toxic partisanship and an acknowledgment that we are in a virtual civil war.

About those “hearings”….

Many years ago, when I was active in Republican politics, I was asked whether I would consider being a candidate for a local judicial position. I explained that I lacked a judicial temperament—I tend to be an advocate, and advocacy in my view (then and now) is inconsistent with the judicial function.

We lawyers talk a lot about “judicial temperament,” because it matters. We The People are entitled to have our disputes adjudicated by sober, thoughtful people who can put aside their own prejudices and emotions, and fairly weigh the relevant facts.

The Kavanaugh hearing was not a trial. It was a job interview–his opportunity to demonstrate that he has the intellectual capacity, maturity and judicial temperament appropriate to a judicial position.

He failed.

Ignore his refusal to submit to an FBI investigation, or to a polygraph. Ignore his highly partisan past behavior. Ignore the committee’s refusal to provide over 90% of his work product for the Bush Administration, or to call the people who were identified as witnesses to Dr. Ford’s assault. Ignore the fact that there is irrefutable evidence that Judge Kavanaugh lied about his history of drinking to excess.

Just focus on his demeanor. And ask yourself if you would want this hostile, petulant, entitled man to rule on a case involving your Constitutional rights.

There was a reason the nation’s Founders created an independent judiciary. They reasoned that removing judges from the political process, from the need to respond to the “passions of the majority,” would allow them to rule dispassionately on the matters before them. Their judgments wouldn’t always be correct, but they would be rendered in good faith—based upon their reading of the law and facts, and not their personal re-election prospects.

When our elected representatives are asked to “advise and consent” to a lifetime judicial nomination, they need to recognize the difference between a conservative or liberal judicial philosophy and simple partisanship. We should be wary of a jurist who approaches the Constitution without a well-developed belief in his or her proper interpretive role, and we can agree with that philosophy or not, but disagreement does not disqualify the nominee.

Partisanship is another matter entirely. A judge who is committed to the fortunes of a political party, who will approach the issues from the perspective of a “team player,” poses a clear danger to the rule of law, and undermines respect for the judicial process. Kavanaugh’s entire history marks him as a highly intelligent partisan hack.

There is a reason the American Bar Association called for an FBI investigation and a delay in the confirmation vote. There’s also a reason the Republicans would have ignored it–along with the huge public backlash to the conduct of that farcical “hearing”– but for the position taken by Senator Flake.

Kavanaugh may yet be seated on the highest Court in the land.

These are really dark, dark days for the American Idea and the rule of law.

 

Another Reason To Reject Kavanaugh

Much, if not most of the opposition to Brett Kavanaugh, revolves around his obvious antagonism to Roe v. Wade. 

Most people’s arguments for and against Roe center on abortion. But that really isn’t what the ruling protects. The issue isn’t whether or not a woman should terminate a pregnancy–it is about who gets to make that decision. Judges who want to overrule Roe believe that government–not the pregnant woman– should have that authority, that the personal autonomy protected by the Bill of Rights can and should be limited when a majority of legislators see fit to substitute their judgment for that of the individual.

The implications of that position are what keep me up at night.

If you look carefully at the legal and philosophical arguments advanced by opponents of Roe (rather than the “pro-life” demonstrators who see it as simply a question of abortion, which they oppose) you will find a disquieting thread of authoritarianism. These are the judges and organizations who consistently favor the exercise of power–government over citizens, major corporations over consumers, the status quo over potential disruption.

That tendency to weigh in on the side of established authority is subject to one notable  caveat: authority is only right when it is “their guys” who are wielding authority. (They are like the Christian theocrats who are critical of the Taliban, not because individuals should have the right to form and hold their own beliefs, but because the Taliban is imposing the “wrong” beliefs.)

People who know him have remarked on Kavanaugh’s extreme partisanship. As his record has emerged, his strong bias for authority is becoming clearer.

(CNN)Judge Brett Kavanaugh two years ago expressed his desire to overturn a three-decade-old Supreme Court ruling upholding the constitutionality of an independent counsel, a comment bound to get renewed scrutiny in his confirmation proceedings to sit on the high court.

Speaking to a conservative group in 2016, Kavanaugh bluntly said he wanted to “put the final nail”in a 1988 Supreme Court ruling. That decision, known as Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act — the same statute under which Ken Starr, for whom Kavanaugh worked, investigated President Bill Clinton. The law expired in 1999, when it was replaced by the more modest Justice Department regulation that governs special counsels like Robert Mueller.
Kavanaugh has often embraced the “unitary executive theory” beloved by Dick Cheney. An embrace of that theory by the Court would mean that an independent prosecutor–who is structurally part of the Executive Branch–would always serve only at the “pleasure of the President.”

U.S. Supreme Court nominee Brett Kavanaugh once questioned the correctness of the 1974 high court decision that forced then-President Richard Nixon to turn over secret White House tape recordings and led to his resignation…..The 1974 United States v. Nixon ruling unanimously rejected the president’s claim that executive privilege protected him from having to release the tapes to a special prosecutor…

Kavanaugh said the president, not the attorney general, is the country’s “chief law enforcement officer.”

These views didn’t prevent him from relatively enthusiastic participation as a lawyer working with Ken Starr during Starr’s investigation of President Clinton. But then, Clinton was a Democrat.

This preference for an expansive view of Presidential power ( when Republicans are exercising that power) raises some fairly serious concerns. If government has the authority to overrule intensely private decisions about procreation, and if the President’s authority over that government cannot be subjected to independent investigation, what other decisions is the President free to impose on the citizenry? What happens to other important checks and balances? The rule of law?

Yesterday, the New York Times editorial board highlighted several of Kavanaugh’s previous rulings in an editorial warning that his confirmation would hamper government’s ability to protect citizens against corporate overreach and would further expand the gap between rich and poor.

In 2012, Judge Kavanaugh wrote an appeals court opinion striking down an Environmental Protection Agency rule that required upwind states to reduce power plant emissions that cause smog and soot pollution in downwind states, a decision that was later struck down by a 6-to-2 majority of the Supreme Court. And in 2016, he wrote an opinion that said the leadership structure of the Consumer Financial Protection Bureau was unconstitutional because Congress decided that the president could only fire its director for cause. The full appeals court reversed that portion of his decision in January.

The editorial had much more–and the more we learn, the worse Kavanaugh looks.

Paving The Road To Trump

Politicians, pundits, political scientists and your crazy uncle all have their explanations for the election of Donald Trump, and most of those explanations have at least a germ of truth–or at least, plausibility.

Misogyny certainly played a role. Racism was a huge and undeniable factor. Hillary was a weak/divisive candidate. Bernie supporters voted for third-party candidates. The Electoral College overweighs rural votes. Russian disinformation was effective. Millions of Americans didn’t vote. Etc.

Whatever the merits of these analyses, it’s hard to argue with the observations in Alan Abramowitz’ new book, The Great Alignment: Race, Party Transformation, and the Rise of Donald Trump.” Abramowitz argues that Trump is the product of an ongoing multigenerational process that has reshaped American politics.

In his view, Trump is a striking result of that process. Like most other political scientists who concentrate on political party politics, Abramowitz sees the GOP as a conservative party in the sense meant by William F. Buckley: It is “standing athwart history yelling ‘Stop!'”

In a review of the book by Paul Rosenberg in Salon, Rosenberg says

Abramowitz writes that “while Trump won the election by exploiting the deep divisions in American society, he did not create those divisions,” and they won’t go away regardless of what becomes of his presidency. He provides an abundance of compelling, detailed evidence, most of which has been lying around in plain sight — in the American National Election Survey (ANES), the results of presidential and congressional elections, etc. But as with the story about Columbus and the egg, you can stare at something for a very long time before someone else shows you the obvious.

Most fundamentally, Abramowitz argues that the New Deal coalition “based on three major pillars: the white South, the heavily unionized northern white working class, and northern white ethnics” was eroded by post-World War II changes that have transformed American society. Those resenting the changes have become increasingly Republican, those welcoming them, increasingly Democratic.

Abramowitz asserts that racial polarization and the rise of negative partisanship were not only crucial to Trump’s election, but also explain his conduct in the White House “which can be described as governing by dividing.” The thesis of the book is that today’s strongly partisan electorate is deeply divided along racial, ideological, and cultural lines.

Rosenberg asked Abramowitz to identify the three most important–and misunderstood– realities of American politics today. His response:

That because of the rise of negative partisanship, we are in a new age of party loyalty and straight-ticket voting — despite the negative feelings of many voters toward the parties and the popularity of the “independent label.” That the divisions within the electorate are primarily racial and cultural rather than economic. That tinkering with electoral rules will not have much impact on partisan polarization because its sources are deep divisions within the society.

I find this analysis persuasive. And I realize that it is important to understand where we are and how we have gotten here. But the road to 2016 has now been pretty thoroughly plowed, and the more important questions are: where do we go from here? and how do we get there?

As a lawyer I once worked with like to say, there’s really only one legal question, and that’s “what do we do?” That axiom is equally applicable to politics and governance.

I’m waiting for the book that tells us how to resist and overcome the racism, misogyny and inequalities that drive our divisions–the book that tells us what we must do to build a better, kinder, fairer society.

The book that tells us how to calm the fears that make our fellow-citizens hate.

 

 

Where Fear and Hate Take Us

In the wake of the 2016 election, Michael Gerson has proved to be one of the more thoughtful observers of our depressing political scene. Gerson, as many of you will recall, was a speechwriter for George W. Bush, but he is no partisan hack; although he looks at our contemporary scene through a decidedly conservative political lens, he is no apologist for today’s GOP.

In a column for the Washington Post written after the election in Virginia, Gerson considered the current fragmentation of both political parties.

We have reached a moment of intellectual and moral exhaustion for both major political parties. One is dominated by ethnic politics — which a disturbingly strong majority of Republican regulars have found appealing or acceptable. The other is dominated by identity politics — a movement that counts a growing number of Robespierres. Both seem united only in their resentment of the international economic order that the United States has built and led for 70 years.

Normally, a political party would succeed by taking the best of populist passion and giving it more mainstream expression. But in this particular, polarized environment, how is that possible? Do mainstream Republicans take a dollop of nativism and a dash of racism and add them to their tax cuts? That seemed to be the approach that Ed Gillespie took in the Virginia governor’s race. But this is morally poisonous — like taking a little ricin in your tea. Do mainstream Democrats just take some angry identity politics and a serving of socialism — some extreme pro-choice rhetoric and single-payer health care — and add them to job-training programs?

What Gerson calls “ethnic politics” is, of course, virulent bigotry–mostly racism, but also homophobia, anti-Semitism, and a variety of other “isms.’ What he calls “identity politics” is class-based animus.

This fracturing of the American citizenry into tribal identities and various “us versus them” configurations is the ultimate challenge to the promise of e pluribus unum–out of the many, one.

It’s ironic that at a time when more and more Americans claim to be political independents, partisanship has become so toxic. A recent survey found a third of American parents would strenuously oppose their child’s marriage to someone who is a member of the other party. The Governor of Alabama was quoted as saying she’d vote for Roy Moore–even though she believed the allegations against him– rather than a Democrat, because keeping control of the Senate was more important than repudiating immoral behavior.

Extreme tribalism has also corrupted a significant number of evangelical Christians. Pious pronouncements about morality have proved no match for promises of power. Majorities of so-called “bible-believing’ evangelicals “forgave” Trump for his three wives, his boorish behaviors and his admitted (indeed, boasted about) sexual offenses in return for his promise to restore their theocratic version of Christianity and return its tribal adherents to the privileged position they once held–a privileged position now threatened by demographic change.

These deep-seated divisions aren’t the result of incommensurate philosophies. Political science research confirms that relatively few people vote on the basis of policy agreement or disagreement–instead, most voters choose their political affiliations based upon identity–upon a perception that “the people in this political party are like me,” and the comfort that comes with being among those who are like- minded.

Among the many unprecedented challenges we face–politically, economically, socially–the most important of all may be re-knitting the various racial, religious and social class threads into a single cloth, a fabric representing an inclusive American tribe.

 

 

 

When History is Written…

When the history of the 21st Century is written (assuming there are people alive to research and write it) America’s current decline will be attributed largely to one man–and that man isn’t Donald Trump.

Of course Trump is dangerous. A number of his choices–both personnel and what passes for policy in his childlike worldview–are potentially catastrophic. But he is too delusional and ignorant to qualify as evil.

No, the most evil man in American government, in my humble opinion, is Mitch McConnell.

Trump is simply the result of McConnell’s consistent elevation of partisanship and power over principle. As James Fallows has pointed out, it was McConnell who took the filibuster from a seldom-used mechanism meant to ensure that minority opinions would be heard to a routine method of subverting majority rule. It was McConnell who famously promised to obstruct anything and everything Obama might do, irrespective of whether what was being obstructed was good policy, good for the country, or even if it had originated with his own party.

It was McConnell who, in the  summer of 2016,” put the kibosh on FBI going public with a warning of the Russian interference in the election, which they were already investigating.

And needless to say, it was McConnell who ignored 200+ years of precedent, and simply refused to allow the Senate to do its constitutional duty of advising and consenting to a sitting president’s nominee for the Supreme Court–doing incalculable damage to the rule of law and ultimately, to respect for close decisions that will be handed down by a court that includes a Justice conspicuously occupying a “stolen” seat.

In 2006, as McConnell was about to emerge as the Republican leader in the Senate, Zachary Roth and Cliff Schecter wrote an article for the Washington Monthly titled “Meet the New Boss.”  Here are some excerpts:

McConnell is a staunch conservative and a master of procedure, but no piece of landmark legislation bears his name. Almost the only issue on which he has a national profile is campaign-finance reform, and on that, he’s known as the man who fought it at every turn…

The Senate’s shift toward increased party discipline has been accompanied by a growing willingness to use the legislative process to benefit the Republican Party’s financial backers…

[McConnell is] a master of Senate rules and procedures, and he harbors no presidential aspirations that might distract him from his job. But unlike earlier leaders, he doesn’t keep score by legislative accomplishments. For the first time in recent memory, the Senate will be run by a leader with both the ability and the desire to use the institution entirely for partisan advantage

I’m hardly the only observer who attributes much of  America’s current dysfunction to McConnell. Dana Milbank calls him “The Man Who Broke America.” Milbank starts with one of the many, many examples of McConnell’s hypocrisy and dishonesty:

“No majority leader wants written on his tombstone that he presided over the end of the Senate,” the minority leader said.

He continued: “Breaking the rules to change the rules is un-American. I just hope the majority leader thinks about his legacy, the future of his party, and, most importantly, the future of our country before he acts.”

Are these the words of Minority Leader Chuck Schumer (D-N.Y.) as the Republican majority changed Senate rules this week to do away with filibusters of Supreme Court nominations?

Actually, they were uttered in 2013, by then-Minority Leader Mitch McConnell (R-Ky.), when Democrats pushed through a similar filibuster change for lesser nominations.

Milbank doesn’t mince words:

No man has done more in recent years to undermine the functioning of U.S. government. His has been the epitome of unprincipled leadership, the triumph of tactics in service of short-term power.

Milbank further documents McConnell’s willingness to subvert longstanding Senate culture in service of rabid partisanship, pointing out that by 2013 his unprecedented, frequent use of the filibuster had blocked 79 of Obama’s nominees; that compared with 68 presidential appointments blocked during “the entire previous history of the Republic.”

The primacy of the rule of law was the most basic premise of the American constitution; as John Adams famously proclaimed, the Founders gave us a government of laws, not men. The constitutional architecture, with its three branches of government and a federalist structure leaving significant authority to the states, was an effort to constrain the abuse of power.

Trump doesn’t understand any of that, and he clearly has no idea how to use the rules themselves to evade those constraints. He doesn’t even know what the rules are.

McConnell, unfortunately, does.