Supreme Court – Jerry Sturgill

Stop the Cheaters! Vote Democrat.

Political cheating has been allowed to undermine confidence in our political process and democratic institutions.

swift-boat – verb [with object] informal – target (a politician or public figure) with a campaign of personal attacks | (as noun swift-boating).[1]

“Republicans are cheaters!” Bob declared.

I considered his words carefully. He is, after all, one of my best friends and perhaps the smartest person I know.

A series of political cheating episodes came to mind, a history now at its below-the-belt nadir with our current President and airwaves filled with lies and fear-mongering.

Historically, neither party may be blameless; however, in my lifetime, the Republicans have led out with what now seems a coordinated campaign of gerrymandering, voter suppression and media manipulation.

Of these three evils, voter media manipulation is the most visible (and so the focus of this blog post).

A notorious example is the 2004 Bush II campaign attack on John Kerry’s heroic Vietnam-War-Swift-Boat career.[2] The attack ads (funded by Texas oil tycoon T. Boone Pickens) were later proven false and resulted in the neologism.

Then, in 2010, to help fund future media strategies, the Republicans succeeded in opening the floodgates with Citizens United v. The Federal Election Commission. A Republican-led PAC, Citizens United, sought to reverse FEC restrictions on timing and funding of a smear campaign against then presidential candidate, Hillary Clinton.

The case made it to the Supreme Court and was decided in a narrow, 5-4 decision that allowed corporations to be people and unlimited corporate funding to flow into our political system.[3]

In his dissenting opinion in the Citizens United case, Justice Stevens warned:

“The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. . . . A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

We now live in the future Justice Steven predicted: Untethered by Citizens United, corporations and special interest groups fill campaign coffers, to fund media and manipulate the vote. Confidence in our most important democratic institutions has consequently been eroded.

And we have seen an escalation in the last two election cycles: The volume of aggressive, false content in well-funded Republican attack ads has been unprecedented.

President Trump has set the example, honed the strategy and otherwise led with a steady stream of divisive, fear-inducing labels, lies and conspiracy theories — amplified and distributed by PAC-funded media campaigns, Fox Broadcasting and far right social media sites. (Recent episodes of racial and anti-Semitic violence are within the tragic consequences.)

At this dangerous time, we must restrain the growing divisiveness by stopping the swift-boating cheaters. We must elect candidates who will bring character and balance back to our political processes and repair our damaged democratic institutions.

___________________________________

[1] New Oxford American Dictionary (Second Edition).

[2] In Idaho, a similar example can be found in the 2014 governor race. The Otter campaign, just before the election, aired attack ads against A.J. Balukoff falsely branding him as a “California liberal.”

[3] Citizens United vs. Federal Election Commission, 558 U.S. 310 (2010) https://www.supremecourt.gov/opinions/09pdf/08-205.pdf

“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).