McConnell’s Gambit … and How the Democrats Set It Up

In last week’s post, I briefly mentioned Senate Majority Leader Mitch McConnell’s refusal to allow the Senate to consider President Obama’s Supreme Court nominee, Merrick Garland.  This attack on democracy was such a flagrant abuse of his power that it deserves an in-depth look. 

Supreme Court Justice Antonin Scalia died suddenly on February 13, 2016.  Within three days, McConnell announced his intention not to consider any candidate that Obama might nominate to replace Scalia. 

The American people‎ should have a voice in the selection of their next Supreme Court Justice … Therefore, this vacancy should not be filled until we have a new President.

This excuse had absolutely no basis in the Constitution or in any law Congress had ever passed.  The Constitution gives the President explicit and exclusive authority to nominate justices while giving the Senate explicit and exclusive authority to approve them.  Majority Leader McConnell used naked power to violate the clear intention of the Constitution.

A week later, Senate Republicans caucused and agreed.  McConnell reported,

I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.

This excuse is bizarre.  The “American people” had already had “their voice in the selection of the next Supreme Court Justice” when they elected Obama in 2012.  And to consider Obama a “lame-duck president” when he still had eleven months in his term of office defies logic and reveals the disingenuousness of McConnell’s argument.  It’s a marker of our extreme partisanship that McConnell was not laughed out of Congress, much less supported by his party.

By announcing his edict before Obama had even considered a nomination, McConnell made clear that it had nothing to do with the qualifications of any candidate.  In fact, Garland was widely considered a moderate judge whom a majority of Republicans had supported when he was previously appointed to the US Court of Appeals. 

McConnell later gloated that

the decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve ever made in my entire public career.

The practical consequences of McConnell’s brazenness was the longest vacancy (422 days) in the history of the modern Court.  The decision will affect the nation for at least a generation.  With Trump’s two extremely conservative nominees, the court will have at least a 5/4 conservative/liberal tilt for years.  And since two of the four liberals are in their 80s, it’s likely that the balance will tilt further.

But the greater damage is to our democracy.  Yes, McConnell was within his legal authority; the majority leader determines the timing of the Senate’s work.  But clearly he did not act in accordance with the intentions of the Constitutions, which certainly did not intend to give one person such power.  Neither did he act in the tradition of the country, nor in the best interests of the democracy.  At any time in the future, the majority leader can now block any nominee at any point in a president’s term.  Especially with our hyper-partisan Congress ruled by a radical minority within the Republican Party, we have entered new and dangerous territory.

While the legislative maneuver was different, the Democratic Party must accept some responsibility for McConnell’s power play.  When Democrats were the majority party, tradition required sixty votes (a “super-majority”) to approve nominees for either the president’s cabinet or federal judicial posts, ensuring some level of bipartisan cooperation.  When, in 2013, Republicans repeatedly rejected Obama’s nominees, the Democrats, using a rare parliamentary procedure, voted that approval could be decided by a simple majority.  Bipartisan support was no longer needed.  The Democrats did not intend to extend their ruling to the Supreme Court, but the precedent was obvious.  McConnell used a different mechanism (refusal to bring the nomination to a vote), but the Democrats had already left a wide-open door. McConnell walked right through. 

The Constitution’s power is based not only upon its content but also on the traditions that have been built upon it to maintain democracy.  Sustained, direct and legalistic assaults by whomever has the power—in this case Democrats first and then Republicans—will do great damage to our nation.

Not with a Bang but a Sputter

How do democracies fall? 

Most of us think of the sudden, often violent, overthrow of government: the CIA-led overthrow of the Iranian democracy in 1951; Augusto Pinochet’s 1973 military coup d’etat in Chile with the murder of Salvador Allende; the 2013 military take-over in Egypt led by General Abdel Fattah el-Sisi, now president.  By that metric, we in the United States feel safe.  Such a revolution here can hardly be imagined.

Statistically, however, the decline of most democracies of the last century has been a stutter, a gradual erosion of laws and norms.  They’ve happened mostly legally—often leaving democratic remnants, eg elections, in place, blurring the actual loss of democracy.  Even Hitler’s rise to Chancellor was conducted through proper channels. 

Attorney General Sessions’s unusual decision not to defend the Affordable Care Act in court is an example.  It may seem to be just one more relatively innocuous partisan event among the many outrageous events during this administration.  But it’s more than that: conducted completely legally and according to proper protocol, it’s a precedent that chips away at an essential function of the Justice Department: defending the law of the land.  Furthermore, if the president, through the Justice Department, can pick and choose which congressionally determined laws to defend, he can effectively choose which laws remain on the books, a further blurring of the line between the executive and legislative functions of government.

In May of 2017 (immediately after Trump’s dismissal of FBI director James Comey), University Chicago law professor Aziz Huq wrote an article that is most helpful.  After studying “37 recent instances in which the quality of a nation’s democratic institutions shrank substantially,” Dr Aziz concluded that

the road away from democracy is rarely characterized by overt violations of the formal rule of law. To the contrary, the contemporary path away from democracy under the rule of law typically relies on actions within the law. Central among these legal measures is the early disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers. Often, there are related changes to the designs of institutions, which might be brought about through legislation. Ironically, the law is deployed to undermine legality and the rule of law more generally.

Using this lens, many of the events of the last eighteen months begin to take on an additional meaning.

“Fake News”

Trump’s repeated accusations of “fake news”—now picked up by many other politicians, government officials and media, particularly Fox News—are hardly new for a politician.  But never, as far as I know, has any president launched such a brutal attack on the media as such, especially based on easily certifiable lies.  In addition, the President tweeted that the nation’s news media “is the enemy of the American people.”

This is all constitutionally permissible under presidential power.  From one point of view, the President is only using the bully pulpit of the presidency to attack the legitimacy of mainstream-news reporting.  In fact, however, he’s attacking the legitimacy of the media itself.  Democracy, however, depends on a free press that has, among other functions, the job of reporting on the dark side of power.  Just as important, the power of the media depends on the people trusting that it will do its best and if it fails, will issue a timely correction.  It’s true that American trust in the media has been falling steadily for decades.  However, this sustained attack—led by the President, backed by partisans in the media and politics, and based largely upon obvious lies—is new in our society. 

Trump and the Republican attacks on Robert Mueller and his investigation

In May of 2017, Deputy Attorney General Rod Rosenstein (Sessions had recused himself) appointed Robert Mueller—a former director of the FBI with a stellar bipartisan reputation—to conduct an ongoing investigation into Russian interference in the 2016 U.S. presidential election and related matters, government and Donald Trump's campaign.

Soon after the appointment, many Republican politicians began disparaging the investigation.  Earlier this year, the House Intelligence Committee Report (“Nunes report”) was approved along completely partisan lines.   It was later discredited.  Trump calls the investigation a “witch hunt.”  Further, the President continues to assert that the House investigation “vindicated him.”  It did not.  The New York Times reported that Republicans are “pushing the narrative that a cabal of politically biased law enforcement officials set out to sabotage Mr. Trump.” 

Turning the House Intelligence committee process into a partisan attempt to vindicate the President, further weakens yet another of our democratic norms.

Pardons

Presidents are legally allowed to pardon whomever they choose.  President Trump has chosen to pardon Sherriff Joe Arpaio who was being prosecuted for unconstitutionally detaining immigrants.  Pardons are ordinarily given after the judicial process is completed and after investigation by the Federal Office of the Pardon Attorney, which Trump ignored.  Although legal, this pardon can be seen as Trump’s arrogation of judiciary powers.

Trump also pardoned Scooter Libby, a member of Vice-President Dick Cheney’s staff, for offenses remarkably similar to the offenses for which Trump’s campaign staff are being investigated.  Both the Libby and Arpaio pardons have been widely interpreted as signals to former staff involved in the Mueller probe that they, too, will be eligible for pardons.

Others

Even before Trump’s presidency, Majority Leader Mitch McConnell refused to allow even a vote on Barack Obama’s nomination for the Supreme Court.  Trump didn’t instigate this, but it’s a powerful example of what is happening to our democracy.

One of the three candidates being seriously considered for Trump’s Supreme Court nomination is Brett Kavanaugh who has previously argued that “presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.”  Kavanaugh’s appointment would clearly give Trump a friendlier Supreme Court in the event of impeachment or other charges.  It may well be that Kavanaugh will not be nominated;** there are other, political problems that might delay his conformation. But it's remarkable that he is even being considered without the issue having been raised.

Trump has rejected the unanimous finding of all four intelligence agencies (CIA, FBI, NSA, and the Office of the Director of National Intelligence) that investigated Russian interference in the 2016 election.

Trump’s attacks on the judiciary, his disparaging of the Attorney General, his dismissal of the legitimacy of the FBI, Sessions, and Congress and his unrestrained lying are only a few of the subtle and not so subtle attacks that wear away at elements of our democratic society.

We might remind ourselves of the fable of the frog thrown into cold water who doesn’t notice the gradual rise in temperature even as he’s boiled.


** Tues, Sep 28.  In fact, Trump did nominate Brett Kavanaugh.  I notice that the Washington Post does finally have an article about this issue.

Constitutional Rights Are Not Always Popular

But They Are Essential to Democracy

I have written before that the Trump Administration has several times called indirectly to ignore the rights of due process accorded by the Fifth and Fourteenth Amendments.  In this post I want to discuss Trump’s more serious tweet of Sunday, June 24, in which he explicitly calls for revoking those constitutional guarantees of due process when it comes to immigrants:

We cannot allow all of these people to invade our Country.  When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.  Our system is a mockery to good immigration policy and Law and Order.

It’s those “judges and court cases,” of course, that assure our rights are protected.  This brazen call to ignore constitutional protections is a new low for this President. 

Other presidents have sometimes flouted constitutional rights.  President Roosevelt’s order to intern Japanese Americans is perhaps the most well-known example.  To my knowledge, however, no previous president has explicitly suggested ignoring the courts altogether.

To recap the relevant points from my previous post, due process requires

• the person be given notice of the procedure,
• they be given an opportunity to be heard, and
• the decision is made by a neutral decision maker. 

In practice due process also includes

• the right to present arguments against the decision,
• the opportunity to be represented by counsel,
• the right to present evidence, and other procedures.

After enumerating certain rights of citizens, the 14th Amendment declares that

[N]o State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (italics mine)

The Supreme Court has ruled several times that, with few exceptions (namely, voting, some government jobs and gun ownership), even undocumented immigrants have full rights to constitutional protections, including due process.  Trump’s tweets are an unambiguous attack on the Constitution in direct violation of the president’s vow at his inauguration to “preserve, protect and defend the Constitution of the United States.” 

Constitutional protections are often unpopular, especially the First Amendment’s guarantee of freedom of speech (even racist or hateful speech) or the Fourth Amendment’s guarantee of protection from unreasonable search and seizure, especially when used by what-appear-to-be obviously-guilty criminals.  But the Constitution and the Supreme Court’s interpretations of those protections are clear: As unpopular and inconvenient as they may be, they are still the law of the land, to be preserved, protected, and defended by the President.

We must ask: Why is the President making such statements? 

From the very beginning of his campaign, Trump has repeatedly told us that immigrants are dangerous criminals.  Stirring up these fears of the “other,” especially immigrants, is almost certainly the main purpose of these tweets.  It’s important, therefore, to counter some of the President’s lies.

1. Trump has tweeted that “Border Patrol Agents are not allowed to properly do their job at the Border because of ridiculous liberal (Democrat) laws like Catch & Release.”  In fact there is no such law, (much less a Democratic one), and “Catch and Release” was a policy that Trump has already eliminated by executive order shortly after his inauguration.
   Furthermore, there is already a policy under which the Border Patrol agents immediately turn back almost half of those attempting to cross the border unless they claim they will be in danger if they are returned to their home country.
2. Trump has tweeted that “big flows of people” are illegally entering the US from Mexico “to take advantage of DACA” (Deferred Action for Childhood Arrivals for the “Dreamers”).  In fact, DACA is only available to applicants under 16 who have lived in the US continuously since 2007.  No one who crossed the border since 2007 has been eligible for DACA.
3. Trump has said undocumented immigrants commit more crimes than US citizens.  In fact, “illegal” immigrants commit fewer crimes than US citizens.
4. In response to reasonable calls for more immigration judges who could speed up the processing of the backlog of more than 650,000 cases, Trump has tweeted that “we now have thousands of judges -- border judges -- thousands and thousands.”  In fact there are about 335.

More important, both US and International law have long guaranteed haven to refugees seeking asylum if they would be in danger in their own country.  The US already has very strict legal process for evaluating the credibility of those claim.  After 44% of those seeking to cross the border illegally have been turned away on the spot by Border Patrol agents, those “Judges or Courts” that Trump would bypass review the remaining immigrants’ claims of danger thoroughly: 76% of them are substantiated.  All those immigrants whose lives were truly in danger would have been turned back by the “zero-tolerance policy.”  It is this required, humanitarian process—to say nothing of the Statue of Liberty’s welcome to “your huddled masses yearning to be free” for which we are perhaps most admired around the world—that the President wants to nullify.

Trump’s statements are meant to scare Americans into abrogating the due process provisions of the US Constitution that is meant to protect all of us from the kind of governmental arbitrary practices that could deprive any one of us of our right to “life, liberty, and the pursuit of happiness.”

Perhaps we should meditate upon Martin Niemöller’s poem about Germany’s Nazi regime:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist. 

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist. 

Then they came for the Jews, and I did not speak out—
Because I was not a Jew. 

Then they came for me—and there was no one left to speak for me.