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  • Glenn Sonnenberg

Musings from the Bunker 9/21/20


RBG, RIP

Greetings and Happy Monday. I have a number of random thoughts about the news of the past few days…

But first and foremost, let us all pause to reflect on the remarkable life of Justice Ruth Bader Ginsburg, a woman who overcome life’s challenges and achieved so much—precedent setting lawyer, advocate for women’s rights, Supreme Court Justice, caregiver to an ailing husband, mother, grandmother, and pop icon (the “Infamous RBG”). Beyond that, she was a real person with a depth of personality and warmth recounted with love and admiration by NPR reporter Nina Totenberg this weekend: https://apple.news/Aw1nU2KLgRIKVVJSggUh0Zg. There are any number of tributes, but here’s another, tied to her faith and the Jewish experience in the holocaust: https://www.washingtonpost.com/history/2020/09/19/rbg-ruth-bader-ginsburg-holocaust-jewish/

Justice Ginsburg maintained a special relationship with Antonin Scalia, a conservative justice, dining together, traveling together, enjoying opera together. They were often adversaries in how they viewed the rules of constitutional interpretation and found themselves on opposite sides of many issues. But they also respected each other’s intelligence and humanity. They provided drafts of their opinions to each other, in order to permit them to hone their arguments and make them the best they could be. They knew they were writing to future generations. Theirs is a beautiful story of good will and respect. https://www.npr.org/2016/02/15/466848775/scalia-ginsburg-opera-commemorates-sparring-supreme-court-friendship and https://forward.com/schmooze/333847/6-sweet-moments-between-ruth-bader-ginsburg-and-best-buddy-antonin-scalia/

 

APPROVING A SUPREME COURT NOMINEE

I have some news and a lot of folks aren’t going to like it. President Trump has every right to nominate someone to the Supreme Court and the Senate has every right to hold confirmation hearings and approve that nominee. That’s the way the Constitution works—or worked—until people began monkeying around with it. Here’s the fairly unambiguous language in the Constitution:

Article II, Section 2, Clause 2 of the Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court…”

I’m no constitutional law scholar, but my assumption has always been that the rights enumerated here and elsewhere in the Constitution are also duties. This is how it’s been done for centuries. How does it work in practice? Well, up until fairly recently it was pretty straightforward. People looked to the scholarship, intellect and temperament of the nominee, knowing that the rules of the game assured the nominee would be politically aligned with the then-president (although there’s no assurance that the Justice, once faced with the burdens of office couldn’t evolve their thinking).

I attended a speech by Justice Scalia at USC some ten years ago. Scalia pointed out that he was appointed by Ronald Reagan and it should have come as no surprise to anyone that Reagan would be a conservative justice. Similarly, no one should expect a justice appointed by a Democrat to be conservative. He said the requirements for Senate consent should not be political point of view but intelligence, experience, impartiality, and judicial temperament.

Scalia then lamented about how the process had deteriorated into what he called “mini-constitutional conventions” each time there is a confirmation hearing. The Senators and their staffs parse every opinion, every article, every utterance of the nominee, trying to find flaws in their philosophy and their candidacy. They then pose hypothetical questions that seek to ascertain how a Justice will vote in various circumstances and given various fact patterns—a practice he considered wholly inappropriate. Scalia, a controversial Justice, asked the audience to guess the vote for his confirmation. It was 98-0. Back in those days, he maintained, he was judged not on how he would vote but on his experience, temperament and scholarship.

Many of the confirmations prior to Scalia were so routine that they were held by voice vote. This is not to suggest that they always sailed through. Grover Cleveland suffered two defeats in 1893 and 1894 and one nominee of Herbert Hoover’s failed in 1930 (I haven’t researched the specifics of these cases). All was quiet until the ill-fated parade to replace Abe Fortas (a story in and off itself—but remember the names Thornberg, Haynsworth and Carswell?!). After Scalia’s confirmation, the next nominee was Robert Bork, who went down in flames but helped add the verb “to be Borked” to the English language. Scalia saw the Bork confirmation hearing as the turning point.

Fast forward to Merrick Garland, President Obama’s pick to fill the seat, ironically, of Justice Scalia. Were he alive at the time, I am confident Scalia would have agreed that the President’s nominee was qualified and the Senate had the duty to subject the nomination to debate and fulfill their constitutional duty to provide its advice and consent. This is consistent not only with the Constitution, but with prior custom and practice. The vast majority of “final year” nominations were approved by the Senate. All were afforded a hearing—until the McConnell Doctrine. One amusing note is that Abraham Lincoln waited until after his victory in the 1864 election before nominating Salmon P. Chase (who was approved by a lame duck Senate).

The McConnell Doctrine. In deciding to defer Senate hearings on a replacement for Justice Scalia, Mr. McConnell established a rule that a president’s appointment of a Supreme Court nominee in the year preceding an election should be deferred until the American people voted on the new President. This, notwithstanding this was not the rule in the past in similar circumstances. In effect, in a remarkably audacious move, Mr. McConnell effectively legislated that a President’s appointment power is only effective for three of his or her four year term.

The McConnell Corollary. After Mr. Trump’s ascendancy to the presidency, Mr. McConnell made clear that he would break with his own rule and that a Republican nomination to a vacated seat would be speedily processed through the Senate, regardless of the remaining length of the President’s term. Many people saw the hypocrisy in changing the rule he had worked to create. So he refined his argument, post hoc. The corollary he adopted was that the earlier rule was intended only for circumstances when the Presidency and the Senate were controlled by different parties. Somehow, the rule is apparently that the American people should be afforded the opportunity to resolve the question of divided government (notwithstanding that they created the division in the prior election) before a president should be entitled to nominate a Justice. Mr. McConnell, in adopting his rule and this corollary, presupposes that a Senate of the opposing party would not consent to a president’s nomination to the Court. His argument relies on the cynical view that these confirmation votes are all about party affiliation and power, and not on the actual qualifications of the nominee.

The Graham Magical Thinking Corollary. Then there’s the Lindsay Graham flip-flop. Originally, he supported the McConnell Doctrine, making it clear that the rule applied regardless of party. Now he says his position has changed based upon the Kavanaugh hearings. Not exactly sure how those hearings would change the highly principled stance of Mr. Graham… I jest—If there is anyone who has evidenced a complete lack of principle in these times, Lindsay takes the cake. Here is his quote from 2016:

“I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”

Liar, liar, pants on fire…

The issue here is as much how our leaders choose to behave as much as how they are required to behave. This administration and this Senate are unconcerned with prior practice, concepts of fairness, and the value of decorum. Secretaries of State openly campaigning. Intelligence community marginalized. Intelligence reports to Congress suspended. CDC scientific judgments ignored and overruled in issuing guidance that has a direct impact on our lives.

Amidst all of these huge issues, one can often instead turn to the smallest of actions to see character in full display. The venality and inappropriateness of the Majority Leader announcing that hearings will proceed only two hours after justice Ginsburg’s death defies human decency and respect. Then the President, tweeting about the need to act quickly less than 24 hours after Ginsburg’s death shows a lack of empathy or decorum—nothing new, of course.

 

THE MCCONNELL DOCTRINE WRIT LARGE

It really couldn’t be any clearer than this. Here is the letter from leading Republican Senators to the Majority Leader, laying out the claim that Merrick Garland’s confirmation be delayed until the American people could decide. Note the change in dates and names…! If you don’t think there is logical inconsistency/hypocrisy comparing this to their current positioning, it’s time for you to re-enroll in a college logic class:



“BUT HE WOULD HAVE DONE IT TOO”

In the past couple of days, I have received a number of emails and texts that purport to justify the actions of Mr. McConnell and the Republican Senate. The crux of the argument is that I would be naïve to believe that Chuck Schumer (currently Minority Leader) wouldn’t do exactly the same thing in the same set of circumstances. There are just a couple of flaws in this reasoning:


1. What we know is that, of the many Majority Leaders who predate Mr. McConnell, none have taken his position. It would seem more likely than not that anyone else would adhere to precedent and practice.

2. Mr. Schumer is not the Majority Leader. Mr. McConnell is. The buck, as it were, stops there. We are not duty-bound to judge Mr. McConnell’s actions based upon the “what if” argument. Alternative history should not enter into the calculus. This argument is as ridiculous as the argument that Hillary Clinton would have handled the COVID-19 Pandemic the same or worse than the President. First, I doubt that—it would have taken herculean efforts to have done worse. But again, she is not the president. TRUMP IS. We should judge our leaders’ actions on their merits and failings and not on what might have been.


 

PERHAPS RBG SHOULD HAVE RESIGNED DURING OBAMA’S TERM

In the midst of honoring RBG, let us recall that she is to be admired for her humanity. We should not be surprised that she clung to her seat on the Court when she was quite ill and Mr. Obama was President. It was quite human to want to stay on the stage—but perhaps just a tad shortsighted (albeit in retrospect).

And, much as I agree with her desires, Justice Ginsburg’s “fervent wish” that a new president should name her replacement is not relevant to this debate. If she wanted this wish, she had the ability to grant her wish five years ago.

 

RULES OF CIVILITY

We are a common law nation. This means that, unlike countries or states governed by Napoleonic law (e.g., France, Quebec, Louisiana), not all of our laws are written down. We ascribe to the fiction that all of the law is “out there”—to be determined and refined through case law based on new facts that are differentiated from prior decisions.

But should this doctrine act as a metaphor for a “common law” of human behavior and practice? Think of it as what your mother might have taught you. Even in little things in everyday life, we do things because it just seems right—queuing up and avoiding fisticuffs, holding open a door, taking off a hat indoors (well, that seems to have gone by the wayside), allowing a car to enter the freeway rather than forcing them off the road. It’s just a way of showing respect for precedent in daily life and showing respect for each other.

There is a book by Amor Towles (author of A Gentleman in Moscow) called Rules of Civility. It’s on my list of books to read. But to me the title of this book encapsulates what is missing today in our body politic and what the whole debate over the Supreme Court nomination boils down to—rules of civility. To me, our political class has breached the rules of civility with such mind-numbing frequency that we no longer are thinking about what might be right, but simply ascertaining how one can “play the game and win.” Mitch McConnel represents the apotheosis of this way of thinking. To him, the legislative process is all about power and gamesmanship, to such a degree that the U.S. Senate more closely resembles a middle school student counsel than the “greatest deliberative body in the world.”

Some will say that Nancy Pelosi and Chuck Schumer are just as bad. I’m no naif; I acknowledge that their behavior has often operated within this “winner take all” and vilification of the adversary construct. They are not angels. Most recently, it seems shameful to me that the Democratic leadership is unwilling to take the “half a loaf” proposed by the Republicans to approve a bill that would provide aid to the unemployed. The damage to real people—the very people that both sides have been entrusted to protect—seems to be only a sideshow in the brinksmanship battle.

I’m feeling a little worn down in this age of the apocalypse and retain hope that we will regain our footing as a civil and just society, one that is willing to engage other points of views civilly.

Decency is what we need most right now. Alas, it is in short supply.

Yet I still choose to think positive.

Warm regards,

Glenn

PS: Bold predictions on Wednesday…

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