A CYNIC’S MUSINGS ABOUT ‘ADVICE AND CONSENT’ IN THE WAKE OF McCONNELL’S DECLARATION OF WAR, RUSSIA’S ACT OF WAR, AND TRUMP’S SPOILS OF WAR*
Untitled, Watercolor, 11.75" x 25", Richard J Van Wagoner, Courtesy Van Wagoner Family Trust**
This post addresses why the Democrats must challenge Mr. Trump’s litmus-tested nominations to the United States Supreme Court with everything they can legally and politically muster. The high court is itself now a political body, roughly evenly split, with a likely swing vote on critical civil, individual privacy and other fundamental rights issues in the balance.
“[The President] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court . . . .” United States Constitution, Article II, Section 2, paragraph 2.
Let’s begin with that premise: the duly elected president nominates and, with advice and consent of the United States Senate, appoints justices to the United States Supreme Court.
The Stolen Supreme Court Seat Is Reason Enough
The senate advises and consents . . . unless, of course, the President is Mr. Obama, the senate is Republican-controlled and Mr. McConnell is the majority leader in the senate. Mr. Obama may nominate whomever his heart desires, but if the senate is controlled by other than the president’s party, the senate need not advise and consent until, well, . . . ever. Who believes Mr. McConnell would have relented had Mrs. Clinton been elected and his party maintained the senate majority? That may have required a President Clinton to sue Mr. McConnell and attempt to have the United States Supreme Court itself weigh in on what may well be a non-justiciable political question. Controlling the high court, the third co-equal branch of government, for decades would be worth the political cost, if any, to Mr. McConnell and his party. Would the left be sufficiently outraged, even in the short term, to overcome the substantial obstacles to voting that Republican state houses have implemented to maintain control? By breaching his oath of office and declaring war on a presidency — the one he assured his base would be limited to one-term — Mr. McConnell turned the process of nominating and appointing justices to the United States Supreme Court into pure political graft.
The Stolen Election Is Reason Enough
Next, of course, is that “Russia thing,” which calls into question the very legitimacy of Mr. Trump’s presidency and, as a consequence, everything that comes after — including nominations and appointments to the Supreme Court. Regardless of whether Mr. Trump, individually and personally, conspired with Russia to influence the outcome of the election, the growing evidence and analysis is (1) his presidency was not a legitimate exercise of United States sovereignty and (2) Russian interference made the difference. The New Yorker article below, How Russia Helped Swing the Election for Trump, by Jane Mayer, reviews a soon-to-be released book by Professor Kathleen Hall Jamieson, “Cyberwar: How Russian Hackers and Trolls Helped Elect a President — What we Don’t, Can’t, and Do Know.”
“[Jamieson] is widely respected by political experts in both parties, though her predominantly male peers have occasionally mocked her scholarly intensity, calling her the Drill Sergeant. As Steven Livingston, a professor of political communication at George Washington University, puts it, ‘She is the epitome of a humorless, no-nonsense social scientist driven by the numbers. She doesn’t bullshit. She calls it straight.’ . . .
“Jamieson is scrupulously nonpartisan in her work. Beth Myers, who helped lead Mitt Romney’s Presidential campaigns in 2008 and 2012 and worked with Jamieson on a bipartisan project about Presidential debates, told me, ‘If Kathleen has a point of view, I don’t know what it is. She’s extraordinarily evenhanded. She is fair and fearless.’ Anita Dunn, a Democratic adviser to Barack Obama, agrees. She, too, worked with Jamieson on the Presidential-debates project, and she studied with her as an undergraduate. Jamieson, she says, ‘is constantly pointing out what the data actually shows, as opposed to those of us who just assert stuff.’ . . .
“Indeed, when I met recently with Jamieson, in a book-lined conference room at the Annenberg Center, in Philadelphia, and asked her point-blank if she thought that Trump would be President without the aid of Russians, she didn’t equivocate. ‘No,’ she said, her face unsmiling. Clearly cognizant of the gravity of her statement, she clarified, ‘If everything else is a constant? No, I do not.’”
Trump’s War on the Rule of Law And Self-Protectionism Via The Supreme Court Is Reason Enough
This brings me to Mr. Trump’s recent nomination of someone the American Bar Association’s Standing Committee on the Federal Judiciary unanimously gave its highest rating of “well qualified” after vetting his integrity, professional competency and judicial temperament. My criticism here is not of this or any person Mr. Trump nominated to replace Justice Kennedy, although recent revelations and allegations (addressed below) at least raise a question concerning Mr. Kavanaugh’s fitness and character for a lifetime appointment to the Supreme Court. My criticism here is of Mr. Trump. I have no doubt about Judge Kavanaugh’s constitutional scholarship, competency and judicial temperament and that at least while serving as a judge he has comported himself to the expectations of the Code of Judicial Conduct. Some questions have arisen about his prior confirmation testimony. That said, the Standing Committee is non-partisan and does not propose, endorse or recommend nominees. Importantly, however, the Standing Committee does not conduct background investigations of the type historically left to the FBI.
Some opine Mr. Trump singled out Judge Kavanaugh — from a group of conservative thinkers to which Judge Kavanaugh was later added who otherwise met his litmus test — for one distinguishing reason: his published views on executive power that the president is beyond the reach of criminal investigations and prosecutions. That interpretation of executive power goes to the heart of probing the legitimacy of Mr. Trump’s presidency, the investigation of the Russian interference, the Trump campaign’s involvement in that interference, Mr. Trump’s obstruction of that investigation, and an array of other potential financial crimes listed in the United States Criminal and Tax Codes.
McConnell’s Insistence on “Plowing Right Through” the Appointment Is Reason Enough
We all know the president and the chair of the senate judiciary committee historically and routinely, as a matter of course, refer to the FBI for further investigation and vetting of any new allegations against a nominee that calls into question his/her fitness to serve. Anita Hill’s principal assassins (some of whom remain in the senate and on that committee) effusively lauded the re-opening of Clarence Thomas’ FBI background investigation. Dementia has, quite obviously, set in. But time, and avoiding a full investigation and examination of the facts to get to truth, is of the essence to a McConnell hat trick. Senator McConnell promised the senate was “plowing right through” the appointment. No time for hiccups or speed bumps. Have to beat the mid-terms and potential blue waive, even though a lame-duck appointment would almost surely go through.
Senior senators in the majority (e.g., Hatch, McConnell) label Dr. Ford and Ms. Ramirez liars and witting participants in a last-minute smear campaign to undermine the nomination of Judge Kavanaugh.
“Why now? Thirty years later?”
“Didn’t your parents love you?”
“Where’s the police report?”
“If it was so bad, why didn’t you press charges? Was he convicted of anything?”
“Others don’t remember the so-called trauma you experienced.”
“You were drinking? What were you wearing? Sounds like you were asking for it.”
“Boys will be boys.”
“What teenage boy hasn’t done the same?”
Many thoughtful people who understand the trauma, shame, embarrassment, fear of not being believed, fear of destroying relationships, self-blame and –loathing and a range of other self-flagellations experienced by victims of sexual assault and abuse (victims themselves more often than not) believe the credibility of Dr. Ford and now Ms. Ramirez is baked in. Why come forward, voluntarily subjecting themselves and their families to horrific shaming and ridicule, invasions, scrutiny, criticism, accusations and threats, if what they have to say is untrue? Dr. Ford and Ms. Ramirez are well aware of historical displays of misogyny by a group of angry white men who sit on the Senate Judiciary Committee. Dr. Ford took and passed a polygraph. Dr. Ford and Ms. Ramirez are requesting, pleading for, and prepared fully to participate in an FBI investigation, knowing that lying to investigators is a crime. Who knows what will come of Mr. Avenatti’s cliff-hanger.
Reason enough exists to oppose any and all Trump nominees to the United States Supreme Court. Any one reason, on its own, is sufficient. Collectively . . . .
As postscript, all of this talk about presumptions and burdens is interesting but of little help. This is not a criminal case. It is not a civil case. There is no objective judge or jury to find the facts by a preponderance of evidence or beyond a reasonable doubt. No one’s liberty or property is potentially subject to deprivation. No person has a constitutional right to being appointed to any position in the federal government. If any nominee is not confirmed for whatever reason, that lack of appointment, Senator Graham, is not what would ruin someone’s life. I agree a false allegation of sexual assault would be horrific. So would being the victim of sexual assault, having the courage to come forward in the face of tremendous opposition and shaming, and running the risk of being labeled “that woman” in the annals of American history.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers.