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).

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.

Things Not Learned from Vietnam

In this particularly strange and dangerous time, we should revisit the history of the Vietnam War. It is surprising how much we have not yet learned.

I finished watching all 18 hours of Ken Burn’s and Lynn Novick’s film on the Vietnam War.   If you have not seen it, you can still stream it from or buy it at the PBS website. http://www.pbs.org/show/vietnam-war/

It is truly impressive, informative and alarming.

Born on the heels of the Korean conflict, I was too young to have been exposed to the full horror of that war.

The Cold War, however, was in full chill, and U.S. engagement to combat the threat of Communism in Vietnam was escalating.

As a young child, before JFK waded into Vietnam, I remember wondering at people digging bomb shelters in their backyards.  By age six, I knew about nuclear annihilation.

When Kennedy was assassinated, our kickball game against the wall of Harrison Elementary halted and we stood in stunned silence, trembling and weeping for fear of unknown threats happening beyond the boundaries of our playground.

As Vietnam unfolded under LBJ and then Nixon, the black and white basement TV screen nightly carried grainy images and horrifying reports of escalating violence, showing dead bodies, body counts, constant bombing.

One seventh grade football practice, a teammate, Charlie, was summoned away by news of his older brother, who, while serving in Vietnam, had been maimed and blinded by a land mine.

After high school, as anti-war sentiment raged, we registered for the draft and submitted to the last lottery before American withdrawal.

These memories have been resurrected and now placed in the historical narrative of the Burns/Novick documentary.   Certain lessons are now clear.

Arrogance.  American leadership at the time arrogantly believed the war in Vietnam could be won with overwhelming air power and young men and women with superior weaponry.  This hubris led to a horrific waste of lives and materiel.

Ignorance.  Blinded by this arrogance, U.S. leadership (and voters) failed to understand Vietnamese history and culture; supported authoritarian and unpopular South Vietnamese regimes; and, chronically underestimated North Vietnamese motivation and capability.

The late Sam Wilson–a former Army counter-intelligence expert and President Emeritus of Hampden-Sydney College–one of the many veteran voices included in the documentary, summarized this fateful intersection of arrogance and ignorance:

“It is very, very difficult to dispel ignorance if you retain arrogance.”

Making Enemies.  Because of arrogance and ignorance, the Vietnam strategy had the effect to firming the North’s anti-American resolve, losing support in the rural areas of the South and enabling Viet Cong recruitment.  America thus strengthened its enemies and alienated its allies.

Divisiveness.  At the same time, Vietnam drove deepening division in our own country, giving rise to consequent hatred and extremism.  The country was so divided and angry Americans even shot fellow-Americans (as at, for example, at Kent State).

Corrupt Leadership.  Add to all the above stunning examples of corruption, especially of Richard Nixon, who lied about the contraction and expansion of the war and propagandized a “silent majority” (his “base”) who blindly accepted his lip service to freedom, American exceptionalism and Communist threat.

Illegal Campaign Activity; Illegitimate Presidency.  Before Nixon’s first election, and to improve his prospects of winning, he made illegal contact with North Vietnamese peace negotiators and told them to back away from the peace table — this, to advantage his presidential campaign and secure his election victory.  In sum, the U.S. elected a President based on misinformation and illegal political activity, someone willing to perpetuate war and sacrifice American lives for his own political gain.

I wish we could say such arrogance, ignorance, falsehood, propagandizing, hate-mongering and division could never happen again in America.  That we have learned the lessons of history.  Sadly, we cannot.

Our current and ongoing dysfunction arises from a noisome combination of historical ignorance, national wounds still unhealed, politicians willing to exploit division and fear, failure of educational processes and the rising gullibility of a fearsome conservative “base” unwilling to accept factual evidence or engage in critical thinking.

We can and must resist this downward national spiral, by educating ourselves and others, speaking up, getting involved, maintaining resistance and voting for change.

 

For historical learning, the Burns and Novick documentary is a must watch.  Reading of books also helps.  Would someone please tell the President?

Surprise! Over the Weekend, Graham-Cassidy Went from Bad to Worse!!

It’s hard to believe this Zombie bill could get any worse. But it did.

Last night Politico received a leaked copy of a revised Graham-Cassidy bill.  I presume the “leak” was by someone who recognizes this effort as so ill-conceived and harmful that the country should know about it ASAP.  In good time, at the eleventh hour, before this terrible legislation is put to a vote.

http://www.politico.com/story/2017/09/24/obamacare-graham-cassidy-repeal-243079

Thank you, dear leaker, whoever you are.  You have exposed this last-ditch Republican effort to undo Obamacare.  Instead of getting better, Graham-Cassidy has gone from bad to absurd, which might be laughable if it were not so cravenly cruel.

This latest effort amounts “bribery” of the “swing senators” from Arizona, Alaska and Kentucky, with more block grant monies promised to each of their states.  However, as the Politico article points out, this masks the overall slash-and-burn assault on Medicaid.

So, promising more money to the “swing states,” is less like a bribe and more like a mugger telling you to be grateful to be mugged because you can keep your watch.

Another retrograde revision tries to win over Senators Cruz and Lee by effectively removing federal regulation of health insurers in favor of the states.

Among other things, this would lift existing caps on out of pocket costs and lead to the unwinding of protections for individuals (like my hard-working diabetic daughter) who have “pre-existing conditions.”

On this point, Politico quotes Larry Levitt of the Kaiser Family Foundation:

“This revised bill is tantamount to federal deregulation of the insurance market.  If there were any doubt that people with pre-existing [conditions] are at risk of being priced out of individual insurance, this bill removes them.”

It’s high time to put aside political differences and mend the problems of the Affordable Care Act.  While Congress continues to battle over health care, with perennial waste of time and money, people are dying.

Americans should demand congressional collaboration and cooperation and an end to this hyper-partisan nonsense.

[Check out my March 15, 2017 blog post:  https://jerrysturgill.blog/2017/03/15/fix-obamacare-stop-wasting-time-and-money-tearing-it-down]

Meanwhile, you have probably seen news of our own Idaho Senators’ willingness to vote for Graham-Cassidy.  (Which makes me wonder why they didn’t try to be hold out votes too, to attract more hush-up, block-grant money to Idaho and make the proposed Medicaid mugging less bad.  Oh well.)

Whether or not Graham-Cassidy passes, Messrs. Risch and Crapo should be held accountable–now and at future ballot boxes–for their cowardly toeing of the far-right party line and their abject failure to help make health care available and affordable for more Idahoans.

 

Graham-Cassidy-oppose

 

Another Zombie Health Care Bill

We hoped it was dead!  But it still isn’t.  Repeal and replace has risen again.  A Senate vote is expected next week.

Senators Graham (R-SC) and Cassidy (R-LA) have proposed a last ditch budget amendment.  Apparently, they think the news cycle is so saturated with natural disasters we will not be paying attention to a man-made one.

cemetery hand

However, we MUST pay attention, especially here in Idaho.  We should pummel our Idaho U.S. Senators with demands to vote against this terrible, zombie bill, before next week’s vote.

There is so much wrong with this process, even before you get to the relative badness of the bill.  Like prior attempts at repeal and replace, Senators Graham and Cassidy, with alarming Senate and White House support, are trying to avoid the deliberative process of the Senate (remember, that failure of “regular order,” about which Senator McCain so passionately spoke in the last round).

The political subterfuge of this “rush job” is obvious and represents hyper-partisanship at its absolute worst.

The proposed process for Graham-Cassidy is even more compressed than before, and is intended to avoid exposure to political and public scrutiny.

It will squash the budding potential for bipartisan collaboration and cooperation and is a violation of democratic process.  As a result, we will careen from one half-supported half-baked result to another.

Because of the short deadline, no scoring will be done by the Congressional Budget Office before a vote.  Even so, the Republicans appear ready to hurry ahead, no doubt because the CBO fueled criticism of their last repeal and replace efforts.

This is like prescribing medicine before the test results are back and a proper diagnosis can be made.

As for the badness of the bill, the Graham-Cassidy amendment is clearly worse than previous repeal and replace efforts.  Suffice it to say that, if passed, it would have a massive negative impact on Idaho and the rest of the country.

The insurance markets, now relatively stable, would be turned upside down.  Even more people (32 million) would lose health insurance.  Federal protection for people with pre-existing conditions would disappear.  Planned Parenthood would be defunded.  Medicaid would be crippled and ultimately disappear.

The whole idea is to kick-the-can-down-the-road to the states with block grants, shifting the burden of fixing health care to disparate state legislative and executive bodies.

The result will be an uneven system of health care “haves” and “have-nots,” with hugely damaging economic and social consequences, especially for thinly-populated, heavily-rural states like ours.

Given the poor performance of the Idaho state legislature on health care generally, Idahoans especially should be screaming “foul.”

Call our Senators, today, and every day, until next week’s vote.  Senator Crapo’s number in D.C. is (202) 224-6142, and Senator Risch’s is (202) 224-2752.  Call Senators McCain (202) 224-2235, Murkowski (202) 224-6665 and Collins (202) 224-2523) too, if you have time.

 

Alt-transcript of Yesterday’s Alt-reality Press Conference at the Alt-White House, Trump Tower

President Trump has an uncanny ability to spot moral equivalence, as demonstrated in this alternative transcript of yesterday’s press conference.

. . . .

Reporter: Senator McCain said that the alt-right is behind these attacks, and he linked that same group to those who perpetrated the attack in Charlottesville.

Trump: Well, I don’t know. I can’t tell you. I’m sure Senator McCain must know what he’s talking about. But when you say the alt-right…uh, define alt-right to me. You define it. Go ahead.

[Cross talk. Reporters shout questions.]

Trump: No, define it for me. Come on, let’s go.

Reporter: Senator McCain defined them as the same groups.

Trump: OK. What about the alt-left that came charging at-

[Indistinct.]

Trump:  You know what?  Listen.  Last night I decided to do my own historical research.  So, I watched the History Channel.  You may not know about this, fake news, but there was a war.  Not so very long ago.  The alt-right was occupying France.  There they were, the alt-right, minding their own business and you what?  You know what? The alt-left came charging at them across the English Channel and attacked them.  Surprise attack.  Very violent.  Very violent.

[Cross talk. Reporters shout questions.]

Trump: Excuse me, what about the alt-left that came charging at the, as you say, the alt-right. Do they have any semblance of guilt?

[Cross talk. Reporters shout questions.]

Trump: Wait a minute. I’m not finished. I’m not finished, fake news. That was a horrible day.

Reporter: Is it the same level as the Nazis?

Trump: I will tell you something. I watch TV very closely, much more closely than you people watch it, and you have- You had a group on one side that was bad and you had a group on the other side that was also very violent. And nobody wants to say that, but I’ll say it right now. You had a group, you had a group on the other side that came charging in without a permit, or visas, and they were very, very violent.

[Cross talk. Reporters shout questions.]

Reporter: Mr. President, are you putting what you’re calling the alt-left and alt-right on the same moral plane?

Trump: I’m not putting anybody on a moral plane.

[Stunned silence.]

. . . .