Constitution – Jerry Sturgill

“Kava-gnaw, gnaw, gnaw!”

With the Kavanaugh confirmation, the President and a Republican-controlled Senate have accomplished a feat that will gnaw away at the integrity and independence of the Supreme Court for decades to come.

Not so long ago, Supreme Court justices could be confirmed by acclamation. The confirmation process focused on intellectual rigor, character and independence, not political leaning or affiliation. Both sides of the political aisle could collaborate and agree.

In recent decades, the confirmation process has been progressively poisoned with politics. Justices have been nominated for their support of the party in power, to add to a conservative or liberal bloc on the Court, and, ultimately, to secure a predictable, controlling majority.

As a result, the confirmation process has become more and more fractious and the Senate votes more narrowly partisan.

No matter your party (or idealogy), this is a dangerous trend. It has reached crisis phase with the Kavanaugh nomination and confirmation.

The Kavanaugh confirmation will be remembered as the closest, most partisan vote in modern history — eclipsing even the Clarence Thomas vote in 1991.

The following illustration charts confirmation votes for Supreme Court justices since 1975. It shows the growing partisan and cultural divide, the pinching off of collaboration, and the ruination of the confirmation process.

Think of the closing trend lines as a graphic illustration of the narrowing of the major arteries of balance, cooperation and deliberation (“Senatorial Arterioclerosis”).

votesmargin3 — Prepared by Jerry Sturgill; Data Source: www.senate.gov

Imagine if, in this latest round, the Senate – the “world’s greatest deliberative body” – had responded to the political pressures of the Kavanaugh nomination by stepping back, agreeing that the unseemly fight sure to follow would so damage the image of the Senate and the integrity of the Supreme Court that this nominee should be rejected and replaced with a more moderate one, one who could be supported by the largest number of members from both sides of the aisle — for the sake of institutional integrity.

Did not happen.

Instead, freed of the filibuster, the Republican majority charged ahead — the minority Democrat members sidelined and ignored.

Then came the allegations of sexual misconduct — echoes of the Clarence Thomas debacle — but this time set amidst the growing angst and awareness of the #MeToo movement.

With a deadline set ahead of the looming mid-term election, the theatrics of volcanic anger and the shock of mockery, careful inquiry and factual truth were avoided and obscured. Credible testimony of sexual assault was dismissed as a “Democratic conspiracy” sponsored by George Soros and the vengeful Clintons. A “hit job.”

Imagine if, as tempers rose and the accusations flew, the Senate had called a time out and agreed that the nomination should not proceed without, at the very least, an exhaustive FBI investigation — no matter how long it might take — for the sake of instituional integrity.

Did not happen.

Instead, art-of-the-deal–strong-man strategies — misdirection, hyperbole, fighting back – pushed the process forward, fed the news cycle and, supposedly, energized the Trump base.

In the aftermath, the institutions of the Senate and the Supreme Court have been damaged, the credibility of each, impaired.

The Senate process looked like an unplugged UFC fight fest. The essential independence of the Supreme Court (actual and perceived) was overrun by politics.

More than ever, the Supreme Court has been made to look like a mere extension of the executive and legislative branches of government and their political “excesses.” Constitutional “checks and balances” have been eroded and the Court compromised.

Only the VOTE promises some measure of correction. We must organize to get out a vote for change: this November and in 2020. Out with the sclerotic old and in with the new.

Elect those able to return our democracy to fair representation, effective collaboration and service of the greater good.

The future of our great country and its democratic institutions depend on it.

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.

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 (5^th 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).

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.

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

Bodies Were Lying in the Street

One night in New York City, I happened upon a mafia hit, the result of competition for leadership of the Gambino crime family. Current events take me back to that night.

After law school I worked as a corporate finance lawyer at a prominent law firm and spent 10 years in the firm’s New York City office.

My wife and I had both grown up in the West and, to us, the East had always been distant and forbidding.

“It will be an adventure!” I said to her cheerfully. “We’ll spend a couple of years out there, and then move back West.” She glared at me.

I went out ahead to work and look for housing. For a week or so, I wandered Manhattan in the evenings, searching for an affordable apartment.

On one of those nights, as I made my way back to my humble Lexington Avenue hotel, I passed Sparks Steak House on 46th Street, close to Third Avenue.

It was the night “Big Paulie” Castellano, head of the Gambino crime family, was gunned down on his way to dinner. Police tape closed off 46th street. Lights were flashing. Sirens blared. Bodies were still lying in the street, covered with sheets.

John Gotti, who had ordered the hit, would become head of the Gambino family. Guess he thought he could do a better job than Castellano.

“Better not tell my wife about this,” I thought, as I skirted the crime scene.

This was a dramatic introduction to an ugly part the City at that time. The mafia was distinctly present and projected an image of being above the law, cocky, arrogant and unrepentant. Just look at this mug shot of John Gotti.

Gotti mug shot

At that time, some in the New York business world seemed to have inherited mafia-like arrogance, rudeness and winner-take-all attitudes. They showed little concern for relationship and trust. In negotiations, I experienced their blatant misrepresentations, threats, verbal abuse and crudeness. This always injected stress, distrust and delay in the transactional process.

At law school, in my business negotiations class, I had learned that a negotiator will more quickly achieve optimal outcomes with a collaborative approach. Humility, listening, honesty and respect build trust, foster cooperation and reach mutually beneficial outcomes.

In the face of the belligerent, bullying New York business style, I consistently applied what I had learned in school. My team succeeded in getting hard things done quickly and our practice grew.

This experience keeps coming back to mind (and you can probably guess where I am headed with the story).

I shudder watching from afar the negotiation style of our new President. So far, his lurching administration has left more bodies “lying in the street” than John Gotti.

This approach to “winning” shows little regard for the “other side,” or the greater good, and, with huge arrogance and a small attention span, fails to understand issues, details, process or people. It is, to me, mafia-like and poisonous to the political setting.

Our governing institutions, with checks and balances, exist to reach collaborative solutions and achieve optimal outcomes for the whole country, without regard to political party, group identity, winners or losers.

As citizens, we must demand collaboration and resist the “me-first” attitudes promoted by the new administration and worse-than-ever partisanship.

Those attitudes are causing our country, and the world, to become more fearful, angry and divided—and more dangerous and dispirited than ever.