Jack Doppelt
Feb. 10, 2017
[A version of this article was published in Yes! Magazine on Feb. 10, 2017.]
For the sake of our judiciary—and democracy—Congress should slow down and consider a one-year presidential probation.
The Supreme Court matters. It matters who is on the Court, how the Court is chosen, and whether people trust its legitimacy and decisions.
Alexander Hamilton Famously described the judiciary as the "least dangerous branch," yet the election of Donald Trump over Hillary Clinton suggests otherwise. For those who care deeply about the influence of money in politics, whether abortion is a matter of choice or a matter of life and death, and whether the Second Amendment protects an individual's right to a weapon, The one vacant position on the Supreme Court mattered more than the election for president. Yet of course they were inextricably connected.
The Senate is on the cusp of making a decision that will reveal for generations how much the Court matters.
President Trump has nominated a candidate, Neil Gorsuch, to be the ninth justice on the Court yet almost a year ago in mid-March, then President Obama also nominated a candidate for that vacant position.
Even before Obama made the announcement, Sen. Mitch McConnell pledged to kill the nomination, which, as Republican majority leader he had the power to do. The nominee's qualifications didn't matter. The nominee would not get a hearing.
McConnell justified the brazen move by saying that "the people should be given "a voice in the filling of this vacancy. It was about principal, not the person," he said.
At the rate he's going Donald Trump may well face impeachment or resign within the year.
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| Photo taken on July 26, 2017 (Photo credit: Ted Eytan under creative commons) |
Since "the people" had elected Obama to a second term and the president selects nominees, that didn't make any sense. Eventually McConnell's position was rejiggered to: hearings should not be held during a presidential election campaign (which lasts more than a year) or during a president's final year in office, depending on how one untangled the justification.
Either way, "a year" seems to be key.
Now the pretense has shifted again. With strut in his step, Mitch McConnell again the Senate majority leader, is demanding that the Democrats in the Senate treat Trump's nominee the way Republicans treated Clinton's nominees and Obama's nominees. (His script left out Obama's last nominee, the one in March.)
When pushed to address the obvious he said: "This is the beginning of a four year term (for Trump), not the middle of a presidential election," and he added, "so let's talk about apples and apples, and not apples and oranges."
Let's do that then. Principal matters. Precedent should matter too, but it's easily distorted to fit the moment, and it's the Republican's moment.
Columnist David Brooks portended it days after the election, before there was evidence that could easily substantiate its occurrence. An impeachment campaign, with draft legislation created by attorneys at Free Speech for People, is already underway and in a short time has amassed 800,000 signatures.
One year is more or less the time clock the Republicans set as they announced they would not hold hearings or a vote on Obama's nominee. If Trump were to be impeached or driven to resign within the year, neither Republican nor Democratic Senators nor "the people" who should be given "a voice in the filling of this vacancy" would want Trump to fill it, not in the middle of a fateful impeachment process.
The Senate, including the Republicans, should put the president on one-year probation.
I concede that it is hard to predict with certainty what will emerge as the grounds for the articles of impeachment to trigger bona fide impeachment proceedings against Trump within a year, just as it has been hard to predict the reckless abandon of his executive branch, his tempestuous exchanges with foreign leaders, his unconstitutional, autocratic actions and his yet to be disclosed and purposefully hidden conflicts of interest that have surfaced in less than a month in office.
To put it in terms Trump might appreciate, oddsmakers are giving attractive odds that he will be impeached or resign before his first term is over.
The grounds might spring from differences over issues between Trump and the "business as usual Chamber of Commerce agenda" of the Republican establishment, as former U.S. Rep. Tom Tancredo, R-Colorado, warned recently in a Breitbart News column.
They might emerge from Trump's instinct to defy court orders if judges dare to stop his excesses of executive authority. What to make of the President's tweet that denounced a "so-called" Republican-appointed federal judge for ruling against the travel ban on people from seven mostly Muslim countries? Hard to predict, even harder to defend for GOP Senator Ben Sasse (NE) who said, "we don't have any so-called judges, we have real judges." Harmless, mindless tweet or a precursor to attacks on an independent judiciary?
Grounds for impeachment are bound to be tied to his clear and continuing flouting of the Emoluments Clause of the Constitution, which prohibits the federal officeholders, particularly the president, from receiving payments or benefits from foreign entities who could dangle money to curry favor or otherwise corrupt a president's decision-making.
So here's a proposal: the Senate, with Republican involvement, should put the president on one-year probation, a fitting procedure for an apprentice president.
A wait-and-see year is a no-lose proposition.
I realize that this may seem like a radical departure from constitutional tradition. But from the perspective of the sanctity of justice, it is a modest proposal. Here's why. What the pundits have failed to account for in concluding that McConnell's brazen power play a year ago to stymie Obama's nomination won the day by having no apparent consequence to a Republican electoral victory in November is that there are latent consequences for the people's trust in the legitimacy of our judicial system.
Young people have only superficial connection with Bush v. Gore, the fiercely divided Supreme Court decision of 17 years ago that contravened principal and precedent along partisan political lines to place George Bush in office over Al Gore. That too appeared at the time to be a cynical power play that won the day with no erosion of our political institutions.
Yet after the Bush-nominated Chief Justice John Roberts ascended to the Court five years later, he took with him the visceral instinct that it was up to him to cast the unexpected, decisive vote to uphold Obama's Affordable Care Act to regain the people's confidence in an independent non-partisan judiciary.
My appeal for the Senate to deny a hearing to Trump's Supreme Court nominee as it did to Obama's Supreme Court nominee a year ago is directed primarily to Republican Senators and their constituents, and to young people who, by a convincing majority, are disheartened by the incivility in American politics.
I am not so naïve to think that GOP Senators will come forward publicly to imply that Trump will no longer be an office in a year. There is a cover for them, though.
Senate procedures require 60 votes to end debate on Supreme Court nominees if the nomination is filibustered. There are only 52 Republican Senators. But McConnell can change those rules to bring a nominee up for vote with only a simple majority, resulting in likely confirmation even over unified Democratic opposition. The question on the floor right now is whether McConnell will change the rules. That is called "the nuclear option" by Beltway politicians and pundits who apparently need hyperbolic euphemisms to justify their importance. All it requires is McConnell and the Republican majority voting to change the rule. Easy to do yet they have the option to not do it. After all, they've acknowledged it's nuclear, and Trump's prompting for them to "go nuclear" should serve as a reminder of the recklessness that needs a probationary year to keep him in check.
A wait-and-see year is a no-lose proposition for Republican Senators and even for their most vocal, doctrinaire constituents. If they keep a leash on Trump in the name of having him act responsibly for a year to avoid impeachment, Trump will be able to have his nominee approved by the Senate. If Trump continues to act so recklessly that Republicans recognize that impeachment or resignation is imminent, then Vice President Pence will replace Trump and appoint the conservative justice that the right elected Trump to appoint.
The Court will need to go another year with eight justices. Not optimal but workable. After all, it was field tested for the last year of Obama's presidency.
The difference will be that the people will trust the Court's legitimacy and decisions, and that's the democracy we depend on.
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