To Bork or Not to Bork — That is the Question!

The debacle of the Reagan nomination of Judge Robert Bork to the Supreme Court and the US Senate’s rejection was the first warning to a young lawyer of the progressive degradation of the Court and its role in our democracy.

Bork  bôrk/verb, US informal, to obstruct (someone, especially a candidate for public office) through systematic defamation or vilification. “We’re going to bork him,” said an opponent.

Over the past few decades, and particularly since the Reagan Era, we have witnessed a “sweeping politicization” of the Supreme Court nomination and approval process.

In my lifetime, the first most dramatic example of this was the nomination and rejection of Robert Bork, who was to replace Justice Lewis Powell, the then “swing vote” at the Court.

Bork

President Reagan presented Bork as a “moderate” to replace Powell, although it was apparent Reagan intended to swing the Court to a majority five-member conservative bloc.  (Sound familiar?)

The ideological fire fight over Bork’s nomination began immediately, giving rise to the verb.  Senator Ted Kennedy famously bashed Bork with this statement, quoted in The New York Times:

“Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”[1]

In the Democratic-controlled Senate, Bork’s nomination was defeated in the Judiciary Committee 9-5; then, after Bork insisted on going ahead with a vote of the full Senate, it was rejected on a 58-42 vote (with 2 Democrats voting in favor and 6 Republicans voting against).

[Significant historical fact:  Bork’s rejection ultimately led to the nomination and confirmation of Justice Anthony Kennedy, who became the Lewis Powell swing voter of the modern era, and for whose seat President Trump has nominated Judge Brett Kavanaugh.]

I had briefly met and worked with Bork in 1980, just before his appointment to the United States Court of Appeals for the DC Circuit.  I was a law student on summer clerkship, assigned to an antitrust case pending before the United States Court of Appeals for the Seventh Circuit.  Bork was the anti-trust expert who argued the case. Together, one-on-one in a Chicago conference room, I shared my research and he tested with me the outline of his argument.  He seemed smart, practical and charming, not consistent with the persona later painted by Senator Kennedy.

Because I had met Bork, I watched the battle over his nomination with some sorrow, for him and for the process.  It was a dramatic, nationally-broadcast display of being “borked” and of the corrosive politicization of the Supreme Court nomination and approval process.   It is a process that has been replayed, with more or less drama, several times since, under multiple administrations and congresses, culminating in a Republican Senate’s treatment of the Obama nomination of Merrick Garland and now Trump’s nomination of Kavanaugh.

To be clear, I am writing about the process, not Bork or Kavanaugh–or Garland.  The process is partisan and poisonous, and it continues to erode the Supreme Court’s objectivity and independence.  As for the candidates themselves, those most politically expedient are rarely the best jurists.  The quality of our courts has fallen victim to our hyper-partisanship.

For example, I am convinced Bork was Reagan’s best political choice in the 1980s, rather than the best legal mind available.  (His originalist theories now sound shallow and partisan.  His consumer-focussed approach to antitrust law has been debunked.)

Same can be said about Kavanaugh and other conservative judicial nominees under Trump.

In short, partisan politics has corrupted and dumbed down our courts and it has had, and will continue to have, dangerous effect on our democracy.

Bork himself spoke to this concern.  After the defeat of his nomination in committee and before the Senate vote, he implored:

The process of confirming justices for our nation’s highest court has been transformed in a way that should not and indeed must not be permitted to occur again.

The tactics and techniques of national political campaigns have been unleashed on the process of confirming judges. That is not simply disturbing, it is dangerous.

Federal judges are not appointed to decide cases according to the latest opinion polls. They are appointed to decide cases impartially according to law.

But when judicial nominees are assessed and treated like political candidates, the effect will be to chill the climate in which judicial deliberations take place, to erode public confidence in the impartiality of courts and to endanger the independence of the judiciary.[2]

It has “occurred again,” now for thirty years.   With the Kavanaugh nomination (and all the other Trump conservative appointments to the federal courts), Trump will establish for decades a partisan imbalance that will erode public confidence in the impartiality of our courts and continue to endanger the independence of the judiciary.

As another pawn in this pernicious politicized process, Kavanaugh should not be confirmed.  The Senate should withhold confirmation until presented a candidate untainted by partisan politics, the best legal mind available and a record of focus on just doing the job of interpreting, not making the law.

At the least, the Senate should not vote until after the mid-term elections.  The people should have a voice.  After all, this is “about a principle, not a person.”[3]

[1] James Reston, “WASHINGTON; Kennedy and Bork,” The New York Times, July 5, 1987.  Retrieved July 11, 2018 

[2] “Bork Gives Reasons for Continuing the Fight,” The New York Times, October 10, 1987.  Retrieved July 11, 2018 

[3] McConnell: Blocking Supreme Court Nomination ‘About A Principle, Not A Person’, NPR Website, March 16, 2016 

 

 

“President Trump, please nominate Judge Merrick Garland!”

One of the tragedies (and travesties) of this political era is the refusal of a Republican-dominated U.S. Senate to give a hearing to President Obama’s nominee for the Supreme Court, Merrick B. Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit.

Garland was considered a “consensus” nominee, a highly respected and qualified candidate, Chief Judge of the next most prestigious appellate court in our country after the Supreme Court.

The Senate’s refusal to give Judge Garland a hearing was highly politicized and partisan, and now provides President Trump an opportunity to choose one of two options:

  • He can choose someone from the partisan list provided by the Federalist Society/Heritage Foundation, which will certainly lead to further dismay, division and systemic constitutional dysfunction, OR
  • He can choose the best candidate, a consensus candidate who will enhance, rather than undermine, the independence of the Supreme Court and who will help mitigate the widening of the partisan schism tearing at America and the checks and balances of our constitutional government.

President Trump should choose the latter option and nominate Judge Garland.

What a brilliant stroke this would be.  The shabby, partisan treatment of Judge Garland is and will continue to be a festering sore in the history of the 2016 election and the Trump presidency.  President Trump now has an opportunity to promote some healing.

I am reminded of an Idaho story.

During the Hoover administration, our own Idaho Senator William Borah was summoned to the White House to meet with the President.[1]  It was an election year (as it was when Judge Garland was nominated).  Ninety-

1101310126_400
Senator Borah, Time Magazine, January 26, 1931

one-year-old Justice Oliver Wendell Holmes had bowed to age and resigned from the Supreme Court.  President Hoover, a Republican, had a list of potential nominees.  On the list was Benjamin Cardozo, a New York Democrat and a Jew.

Cardozo was considered one of the most brilliant jurists of the day.  Hoover was sensitive to Western conservative reaction if he nominated Cardozo, because the Court already had one Eastern Jewish Democrat–Justice Louis Brandeis.

Borah was then the most senior member of the Senate (the “Dean of the Senate”).  Because of his influence in the Senate and his Western leanings, Hoover called him to the White House to discuss his list of  candidates.  The Westerners were at the top of the list.  Cardozo was at the bottom.

Hoover handed the list to Borah.  Borah glanced at it and declared, “Your list is all right, but you handed it to me upside down.”

Hoover protested that geography and religion had to be taken into account.  Borah famously said, “Cardozo belongs as much to Idaho as to New York” and added sternly, “anyone who raises the question of race [sic] is unfit to advise you concerning so important a matter.”

Borah returned to the Senate and led, immediately and proactively, approval of Cardozo’s nomination.

In summary, Idaho’s Borah supported the best candidate for an independent court, not one responsive to the ambient pressure of partisan demands.

Our current Idaho Senators abdicated their responsibility in the appointment of Judge Garland in 2016, although Garland was a “moderate” pick and may be the Cardozo of our day.

I would challenge them to remember Senator Borah’s example and show leadership in the nomination and approval of the best candidate to preserve the independence of the Supreme Court and to help avoid worsening of our partisan divide.

I challenge them to promote and support the nomination of Judge Garland.

[1] Henry Julian Abraham, Justices, Presidents and Senators:  A History of the U.S. Supreme Court Appointments from Washington to Bush II  160-61 (5th ed. 2008).

Celebrating MLK Day

In this seemingly regressive period in our history, we still have a dream.

Some say the outcome of the last election has an optimistic “silver lining”:  our values have been challenged and, in response, we have risen to their defense.  I know I feel this effect.

The other night we watched the first episode of David Letterman’s new Netflix show.  It reminded me of an experience last year, when I was on a business trip to Washington, D.C.

My last meeting was on a Friday and I decided to stay through Saturday to visit the newest Smithsonian Museum–the National Museum of African American History and Culture (NMAAHC).

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It was powerful.  I was deeply moved by my visit.  What followed, though, was unexpected and raw.

So much so, I recorded it with a poem, which I would like to share today, in honor of the Reverend Dr. Martin Luther King Jr. and all who have been inspired and motivated by his words and example.

Friday at the New Museum

Closing time at the newest of the Smithsonian’s–
The National Museum of African American History and Culture (NMAAHC)–
On a warm Friday evening in Washington, D.C.,
I must have been the last, most reluctant visitor to be urged out the door.

I wandered across to the Mall,
Up to the Washington Monument
To look down to the Lincoln Memorial below, and the other way
To the Capitol Building hovering in the distance.

As I walked, I contemplated my visit
To this most important new museum,
With its auburn lattice work reaching upward,
Like lifted hands, toward the sky.

It had stirred me to my core,
As much–or more—
Than nearly anything
Before.

From my visit, I felt sadness for its record of abuse and holding back;
Anger for national plagues of “white” superiority and willingness to exploit;
Awareness of the effects of my own privileged “identity”;
Shame for my race, and a more certain desire to be cleansed.

Near the top of the hill, along the path,
Below the towering white obelisk of the Washington Monument:
I saw a mobile Jumbotron, and wandered in its direction.
It was looping the infamous “Access Hollywood” video of the last election.

There was the face and voice of the now President–
And his sad example of this other form of
Domination and abuse.
Boasting.  Blathering.

Behind the Jumbotron, in the distance,
Shrinking behind the trees,
As if with shame,
The White House.

I glanced back, to my right, at the new NMAAHC,
Where I had just witnessed its counterpoint.
A celebration of progress,
Against hateful mythologies and persistent abuse–

Concluding with an epiphany
For the grace, goodness and precedent of
Our last First Family.
Moved by an overwhelming contrast–

I began to weep.

 

meme2
Dr. Martin Luther King Jr., Letter from the Birmingham Jail

 

Tax Reform: The Senatorial Sellout

Less than a third of the total US population was represented in the rushed approval of the Senate tax bill last week.

“No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”  James Madison, Federalist No. 62.

This essay is about democratic principles, or lack thereof, in the current United States Senate’s passage of a hurried and horrible tax bill.

After the Senate vote last week approving the “Tax Cuts and Jobs Act,” I tallied the votes and compared them to the populations of the states represented on each side of the vote.

This broke into three categories:  (1) states where both senators voted “yes,” (2) those where both voted “no” and (3) those where senators were split and the state’s two votes offset, or cancelled, each other.

Based on this analysis, only 31% of the total US population was represented by “yes” votes for a bill that will have wide-ranging impact on the economy and culture of the whole US population for years to come.  By contrast, 45% of US population was represented in clear “no” votes against the bill.

Of course the Senate was meant to be representative of the States, not the people; but this seems a violation of the spirit, if not the letter, of the Constitution.

The framers intended the Senate to be a careful, deliberative body, to counter the transitory inexperience and “passions” of the House of Representatives, where membership can annually shift in large numbers.  Accordingly, Senators have longer terms than any other officer in the legislative and executive branches and Senate elections are staggered every two years in thirds.

James Madison, in Federalist No. 62, described this expectation for the Senate:

“The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. . . .  All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.”

Equal Senate votes for each of the states was rationalized as an offset to the proportional representation in the House, but this was also an important compromise to obtain the smaller states’ approval of the Constitution.

Today, the effects of this compromise are exploited by a Republican-controlled Congress, and its effects are heightened by demographic shifts that now have the largest state (California) with a population nearly 7,000% larger than the smallest state (Wyoming), while both have equal voting power in the Senate.

California voted “no” and Wyoming voted “yes” for the tax bill.  California will suffer the greater impact, yet California’s Senators were effectively ignored in a partisan process that was controlled by the Senators from Republican-dominated, smaller states, including Idaho.

Interim solutions to this problem would require a recognition of this unfairness; respect and collegiality among Senators from both large and small states; willingness to seek solutions that serve the whole country and not just individual states; and, taming of the hyper-partisanship that has members of one party refusing collaboration and thoughtful input from others.  In short, it requires thoughtful return to the original purpose of the Senate described by Hamilton: order, stability and “great firmness.”

Otherwise, the Senate is an alarming, oxymoronic majority of the minority moving in partisan lockstep with a Republican-controlled House–as demonstrated by its passing a bill in such a short time, under pressure for a “victory,” with a series of rationalizations that have neither factual nor economic basis.

There have been no extensive hearings or debates and an unprecedented rejection of bi-partisan economic analysis that pegs the resulting budget deficit at $1.0 trillion or more.

For these reasons, our Senators should shed the shackles of party affiliation, shoulder their leadership role and slow down the tax reform process.

With so much at stake–including loss of healthcare for millions, deterioration of the separation of church and state, threatened environmental destruction and ballooning of the national debt–all Americans should insist on this and take to the streets, if necessary, to make ourselves heard.

“Back off sinners! God wants tax reform.”

I have been studying the liturgy and saints of the Prosperity Gospel. I now see the light!

My interest in learning more about the prosperity gospel began as I wondered why the President and other Republicans–including our own Idaho Congressmen and Senators–are so hell bent on legislating a tax package that will benefit the rich and hurt the poor.

The prosperity gospel explains everything, almost.

With the apparent support of the evangelical-Christian right, our government is now populated with prosperity gospel believers and motivated by its doctrines.  These doctrines inform the tax legislation passed by the House and now before the Senate; they explain the purposeful dismantling of the Affordable Care Act; and, they shed light on so much more.

Prosperity pospel doctrine is consistent with the open architecture of capitalism and free markets.  Simply stated, wealth accumulated by capitalists through free-market competition is a sign of God’s approval of winners.

Poverty, by contrast, is a sign of lack of motivation and participation, the wages of “sin” and bad choices, evidence of God’s punishment.

This Manichean rich-poor, winner-loser dualism also informs Prosperity Gospel morality.  Rich people must be better and more deserving.  Poor people, not so much:  stereotypical grifters, sponging off an enabling welfare system that has been erected by an unholy, big-government “Establishment.”

This moral framework presupposes (and requires) unregulated “freedom of choice,” which allows aspirants for wealth to reach their divinely appointed destiny.  This freedom is also available to the poor, but they, obviously, cannot be depended upon to use it well.

The Executive Branch is now filled with super-rich advisors and cabinet secretaries.  In the prosperity gospel light, this has nothing to do with their experience or competence. They, like Trump, were already proven and chosen by God.

god and donald trumpIf you doubt this, see Stephen Strang’s book God and Donald Trump, with its forward by father of Sarah Huckabee Sanders, ex-governor Mike Huckabee.  The book explains the miraculous and prophesied incarnation of Donald Trump as President.  (Seriously!)

You can see how super-rich believers in the prosperity gospel rationalize their actions and inactions toward the poor, executed directly or indirectly through generous sharing of “God’s abundance” with decision makers in Congress: to promote, for example, tax cuts for the rich, removal of health coverage for the poor, scaling back of safety nets, busting of unions, dismantling of consumer protections (including, most recently, the Consumer Finance Protection Bureau), beating back of the minimum wage and avoidance every other thing that could interfere with their freedom to pursue their divinely-appointed, prosperity-gospel destiny.

The getting and keeping of wealth is their doctrinal and moral imperative and privilege. Sharing wealth with those demonstrably less worthy does not fit the paradigm.

If that is gospel, it is certainly not “good news.”

[This post is the first in a series.  Up next: “The Roots of the Prosperity Gospel and the Gates of Hell”]

Tax Reform: “Let Them Eat Cake”

Hey you Trump fans! Do you really think these people care about you?

The problem with fraud is you usually can’t tell its happening until its too late and the damage is done.

Early in my career, I invested in a small technology company that was hiding returned inventory.  When the lies of its senior management were discovered, and the company was slammed into bankruptcy, trading was suspended.  It was impossible to sell my shares, and I lost my whole investment.

Often in this kind of situation, the perpetrators of the fraud end up doing just fine.  They have already squirreled away millions, often in off-shore accounts, and have high-powered lawyers to help keep themselves and their fortunes beyond the reach of the law.

In similar fashion, we are being defrauded by our current government.  Those who see it happening are fearful and angry.  Those who are unaware–because they have so effectively been kept in the dark by the President and his minions–must be warned.

Sadly, those shouting warnings, even if they are experts, are dismissed as anti-Trump liberals.

One expert is Robert Reich, former Secretary of the Department of Labor.  In his blog post yesterday entitled “Fools or Knaves,” he describes the lies supporting the Republican tax plan—among others, the lie that people earning more than $1 million per year will bear a greater tax burden than the rest of us, and the companion lie that the tax cuts and resulting deficits will be more than offset with the effects of “trickle down” economic activity.

The Joint Committee on Taxation, the Tax Policy Center, the Tax Foundation and virtually every qualified economist disagrees.  The legislation will mainly benefit the already rich; the upper-middle-class will actually see a tax increase; the tax savings for everyone else will be modest; and the deficit will skyrocket.

President Trump will be on the Hill this week to twist arms and help the legislation hurtle ahead.

Reich wonders why Mnuchin, who surely knows better, is aiding and abetting this alarming process with his own repetition of the blatant, supporting lies. History will not be kind to those who have participated in such a fraud and failure of duty, Reich concludes.

One explanation of Mnuchin’s unseemly behavior, according to Reich:

“Apparently Mnuchin will say anything to retain his power and influence in the Trump administration.  He knows he’ll never have anything close to this power again.”

This explanation inspires another:  Mnuchin, like the President and every other member of the super-rich Trump cabinet, already has plenty of money. He and the rest are using their offices to get more of it and to otherwise obtain maximum financial advantage for themselves and major donors.

By the time the poor and middle-class members of the Trump base fully understand the effects of the fraud–as their tax bills and healthcare costs rise and the economy stalls out–Trumpian robbers like Mnuchin will be long gone, living in their security-gated mansions or bobbing, far from view, on their super yachts.

Why, then, should they care how history treats them?

Tax Reform: Rage Against the Machine

The current tax legislation before the Senate, and the bill passed by the House, are evidence capitalism is being allowed to gut our democracy.

In the United States, democracy and capitalism are bad bed fellows.

Democracy aspires to give equal voice to everyone. Capitalism does the opposite with its appeal to economic greed and its transactional, competitive division of the world between “winners” and “losers.”

Democracy aspires to inclusion and compromise. Capitalism promotes self interest and conflict.

Understanding the conflict between democracy and capitalism should make us feel rage about the tax reform legislation passed by the House and now before the Senate.

With the tax legislation before Congress, capitalism is being allowed to overtake and 2 - 1overwhelm our democracy.

While the legislation is promoted as benefitting the middle-class, it mainly benefits the rich and the companies they own. The working middle-class and poor come last, if at all, in the list of beneficiaries.

In violation of democratic institutions and principles, the legislation is being rushed through Congress, without hearings and with purposeful avoidance of bi-partisan support or input.

How can we trust our best interests to the advocates of this legislation–to the super rich Republicans and Wall Street capitalists who control the Executive Branch and their puppets in Congress?

Senator Crapo campaigned on a platform of reducing deficits and the crushing national debt.  Yet, post-election, he said this to Bloomberg:

“Senator Mike Crapo of Idaho, a member of the tax-writing Finance Committee, said Monday he wants a tax cut that’s ‘as big as we can get’ within the budget window, though he declined to put a number on it.'”

The tax cut he now supports is around $1.5 trillion and over the next 10 years, the national debt is expected to increase by at least this amount.

He is also supports the elimination of the Affordable Care Act mandate and subsidies, which will have the effect of putting affordable health insurance beyond the reach of many Idahoans.  From the Washington Post:

“‘Did we take away their money? No,’ says Sen. Mike Crapo (R-Idaho). ‘There’s not $1 taken away from them if they make that choice’ not to buy insurance.”

That is like telling homeless people, “You should be happy with all the money you’re saving because you can’t afford a home.”

Senator Risch expressed mealy-mouthed support from the Senate Floor:

“Tax reform will bring relief to American families and under the plan released by the Senate Finance Committee, middle-class Americans will see a benefit in the form of a lower tax bill, which means more money for households to bring home.”

OK?  But Senator Risch is one of the wealthiest members of Congress.  How will this legislation benefit his family?  And what about the offsetting negative impact on poor working Idahoans of the repeal of the Affordable Care Act individual mandate?

We could only know the extent of his self-dealing and conflict of interest if he discloses the impact of the tax legislation on his and his family’s tax bill.

In summary, until the moment of the vote, we should scream at both Senators to oppose a tax bill that will add to the deficit and national debt and which contains provisions that will hurt Idahoans.

The rushed process by which this tax bill is being hurried through Congress is outrageous.

Equally outrageous:  the unnecessary, long-term negative economic impact the legislation will have on our country and state.  We will all end up worse off in the end.

As Corva Korax recently commented on my “Campaign for Idaho” Facebook page:

“Every tax cut for the rich is a new tax on the poor and middle class whether higher health care premiums or loss of access altogether, higher tuition, higher education costs and fewer opportunities, worse civic services.”

Amen.