If Trump Makes It One Year Without Impeachment, Then Let’s Talk Supreme Court Nominees

                                      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.

Photo taken on July 26, 2017
(Photo credit: Ted Eytan under creative commons)

Click on photo to link to the story where it originally appeared

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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Police videos, the cynical art of sacrifice and the need for trust

 

                                    Jack Doppelt

Dec. 2, 2015

[A version of this article was published as Police videos, the cynical art of sacrifice and the need for trust on Social Justice News Nexis (SJNN) on Dec. 2, 2015]

On Nov. 25, in the immediate aftermath of public events relating to the back-to-back murder charges of a gun-happy Chicago cop and the release of a damning and distracting video of Laquan McDonald’s death that had been withheld from the public for more than a year, I wrote this blog. I was enraged as was Curtis Black who wrote in the Chicago Reporter, it sure “looks like [Officer Van Dyke] is being sacrificed in order to protect the system that created him.” 

Another way to put it was the city was cravenly tossing one bad apple to pacify us. And we, in the media particularly, are so mesmerized by the glare of video that we literally lose sight of how this keeps repeating itself with institutional cover. 

Then yesterday, seemingly out of nowhere, as Police Superintendent Garry McCarthy was making the rounds to defend the city and his department, Mayor Emanuel fired McCarthy, announcing that “the public trust in the leadership of the department has been shaken and eroded.” 

Now one bad apple and one official have been offered up under the intense glare of public anger. Is this the accountability the public needs to trust? The mayor has also appointed a task force to review the system. What more is a mayor to do? 

It will of course take time for the task force to review and conclude and offer recommendations. Will relations with Chicago’s residents and communities fester in the interim? How will it not, if some basic questions that do not need months to investigate are not addressed? 

Maybe the first thing the task force can do is to advise the system publicly that to regain the public’s trust, questions like these need to be to answered no matter what the task force comes up with. 

To Mayor Emanuel: You said you did not see the video until after it was publicly released earlier this Thanksgiving week. If we believed you, shouldn’t we be even angrier that you and the city council approved a $5 million last April without taking the trouble to view the video that must have been the smoking gun to settle a case that had not yet even been filed? 

Followup to the city council: What were you told that had you be so willing to pay $5 million in taxpayer money without holding anyone accountable? 

To the Fraternal Order of Police: We expect that your role is to serve and protect fellow police officers. Do you feel any compunction that you are willing to accept whatever story police at the scene conspire to stand by, such as in this case that Laquan McDonald died of a single gunshot to the chest, after he had punctured a squad car’s tires and damaged the front windshield (without ever getting close enough to the vehicle to do either of those acts)? 

To State’s Attorney Alvarez: Should we feel grateful that you filed murder charges against Officer Van Dyke when, as you put it, the time was right and all the evidence was in, which was coincidentally the very day before a court ordered the video to be released? If I were Officer Van Dyke’s defense attorney, am I pleased about that coincidence, maybe just as pleased as Officer Dante Servin’s defense attorney was when you decided not to charge Officer Servin with murder only to have a judge dismiss all charges against him at trial last April, because, as the judge put it, you mischarged Servin with involuntarily manslaughter when he should have actually been charged with intending to kill Rekia Boyd? 

To Chicago police officers: How do you feel when you find out that fellow officers deleted 86 minutes of footage from a security camera at a Burger King restaurant near the scene? Relieved that you are willing to obstruct justice to cover one another’s back, or are you incensed or scared that you could be the one cop hung out to dry when city officials and the state’s attorney choose to duck and let you fall in the line of duty? 

Just a few questions that I think about now that I’ve watched another incriminating video that has me questioning the people we entrust with power.

[Postscripts: 

In March 2016, Anita Alvarez was defeated for re-election as State's Attorney by Kim Foxx, who got 58% of the vote to Alvarez's 29%. 

In Sept. 2018, the week the Van Dyke case was to go to trial, Rahm Emanuel announced that he would not seek re-election for mayor. 

In Jan. 2019, Van Dyke was sentenced to seven years in prison for the second-degree murder of McDonald.]

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Immigrants aren't a unified voting bloc

                                    Jack Doppelt

Aug. 30, 2012

[A version of this article was published as The Complex Picture of America’s New Immigrants on the Juvenile Justice Information Exchange (JJIE)]

With President Barack Obama’s mid-June directive that protected certain children of illegal immigrants from deportation, and the U.S. Supreme Court’s ruling that invalidated most of Arizona’s anti-immigrant law, immigration has finally been yanked onto the front burner. 

With that spotlight has come some misleading shorthand: that immigrant means Latinos and illegal, and that legal immigrants, including immigrant youth, if mobilized to become citizens will vote Democratic. Immigration in the United States today is far more comprehensive than stereotypes and myths can convey, and we owe it to ourselves to understand the nuance of the politics and influence on our country, especially in an election year. 

There are about 40 million immigrants in the United States today, and according to the U.S. Census Bureau, that is more than at any time in U.S. history. Almost two-thirds have arrived during the past 20 years. Immigrants, defined as people born outside the United States and residing here legally or illegally, now comprise about one-eighth or 12.5% of the U.S. population. 

According to Census figures, 11 million of today’s U.S. immigrants were born in Mexico, another 10 million originate from other Latin American countries and the Caribbean. Some 11 million are Asian, primarily from China, India, Philippines, Vietnam and Korea. Five million of today’s U.S. immigrant population originates from Europe, including the former Soviet Union. 

More than half of U.S. immigrants today are between the ages of 18 and 44. They are seldom accounted for in political polling in the run-up to an election, though more than 40 percent of all immigrants are citizens and entitled to vote, according to 2010 U.S. Census Bureau data. 

In a series, “Immigrants don’t fall in line for 2012 elections,” published by Immigrant Connect, an online network for immigrants, refugees, their families and communities in partnership with 12 ethnic media outlets in Chicago, we examined how different immigrant communities are approaching the 2012 election campaigns. 

Among what we discovered are stories of traditionally Democratic strongholds veering away from supporting President Obama – in the Indian community that has become wealthier and a natural reservoir for political fundraising; among Poles who face a quandary between an opportunity for those here illegally and core religious values; for Russian Jewish immigrants who have an instinctive fear of big government and any specter of socialism; and in a surprisingly robust Bulgarian community that hasn’t yet developed an investment in American politics. Immigrants from the former Soviet Union, many of whom only recently reached voting age, often express a visceral allegiance to former Republican President Ronald Reagan for his role in the fall of the Iron Curtain, that carries over as party loyalty for the GOP. 

U.S. immigrants are not a bloc, much less a voting bloc. For immigrants, politics is often a home-grown tradition. Dual citizenship is a convenience and a fact of life in the United States. With every election, both here and back home, many immigrants have options. 

For Lithuanians, for instance, it can get complicated. Younger Lithuanians – those who emigrated after 1990 and became U.S. citizens – can’t vote in Lithuania. Older Lithuanians can vote in both places. Mexican officials were paying attention to the 10 million voting-age Mexicans living in the United States. Though about three-quarters of Mexican immigrants in the U.S. lack U.S. citizenship and can’t vote here, Mexico honors dual citizenship and some 60,000 applied for absentee ballots to vote in the Mexican elections this year. They tend to vote in neither, in part because of a distrust in authorities and the election process, bred in Mexico and reinforced in their new home. 

That has been the case among Pakistani Americans, too. However, upcoming elections in Pakistan have created quite a buzz among Pakistani immigrants living in the United States, who earlier this year were given voting rights for the first time. The campaign of Imran Khan, a cricket star-turned-politician has galvanized young Pakistani-Americans well beyond anything American elections have been able to do. 

“A nation of immigrants” is a term steeped in the rhetoric of American politics, often invoked to harken back to bygone times, and to remind us of our country’s humanity. 

In the Arizona case, Justice Anthony Kennedy referred to illegal immigrants as “human concerns;” Justice Antonin Scalia called it “human realities,” referring to Arizona’s other citizens as feeling under siege by invading immigrants. 

With 40 million immigrants, legal and illegal, being courted to vote and being kept from voting, this should be an election cycle worth engaging in.

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Immigrants don't fall in line for 2012 elections

                                                                                                                                                    Jack Doppelt

June 20, 2012

[A version of this article was published as Immigrants don't fall in line for 2012 elections on Immigrant Connect]

With President Obama's executive order protecting certain children of illegal immigrants from deportation, and Republicans countering that the announcement is a political ploy, immigration has wedged its way into the 2012 election cycle. And with it has come some misleading shorthand; that immigrants vote Democratic and that immigrants means Latinos. The immigrant landscape is far more nuanced than that, and so is its politics. 

Among what we discovered are stories of: 

• traditionally Democratic strongholds veering away from supporting President Obama - in the Indian community that has become wealthier and a natural reservoir for political fundraising; 

• among Poles who face a quandary between an opportunity for those here illegally and core religious values; 

• for Russian Jewish immigrants who have a visceral fear of big government and any specter of socialism; and in a surprisingly robust Bulgarian community that hasn't yet developed an investment in American politics; 

• a Pakistani community that is mobilizing for upcoming elections but behind a charismatic political figure back home; 

[Archived documents from first-wave
Lithuanian immigrants that are currently
on display at the Lithuanian Research and 
 Studies Center in Chicago (Photo by Jen Lazuta)] 

• some less publicized factors for low voter participation among Chicago's Latinos; 

• some voting complications arising from dual citizenship within the Lithuanian community; 

• benefits of US citizenship for Arab immigrants and refugees that go well beyond voting; 

• movement in the Filipino community toward concrete political involvement; 

• how a state legislative issue has galvanized the Korean community; 

• and how African immigrants, from multiple nations are turning to community organizations to give voice to their issues here and back home. 

[Community organizer James Thindwa addresses 
the Chicago African Summit crowd. Photo credit: Sarah Travis]

Twelve ethnic media outlets collaborated on the project. They are Africa Today, Al Moustaqbal Future newspaper (Arab), Bulgaria Weekly, Draugas (Lithuanian), Extra (Hispanic), India Tribune, InformacjeUSA.com (Polish), Korea Daily News, Pinoy Newsmagazine (Filipino), Reflejos (Hispanic), Reklama (Russian), and Urdu Times (Pakistani). 

Read the stories here: 

Indian Americans shift party allegiance and take their money with them 

As Indian Americans are becoming one of the nation's wealthiest immigrant groups, many within the community are shifting party alliance from the Democratic to Republican party. And although Indian Americans are relatively few in number, they find they can affect political change through fundraising. 

An election dilemma for Poles: Vote religion or immigration 

As the 2012 presidential election approaches, the overwhelmingly Catholic Polish immigrant community in Chicago faces a dilemma: should they vote for Barack Obama, who supports a path to citizenship for illegal immigrants? Or should they allow their religion to inform their decision, and vote Republican based on that party's conservative stances on social issues? 

Russian immigrants trending Republican, Russian Jews moreso

A recent national trend among Russian immigrant voters shows more and more Jewish Russian immigrants are voting Republican because of a dislike of big government and an affinity for capitalism. 

Bulgarian immigrants may abandon Obama, but voting participation unclear

Like many other Eastern European immigrants, the Bulgarian community is leaning Republican as the 2012 election campaign takes shape. 

Pakistani Americans mobilize for the elections back in Pakistan

With the burgeoning involvement in politics not just in America, but also in Pakistan, second and third generation Pakistani-Americans are laying claim to their rights both as American citizens and Pakistani descents. 

Memories of corruption and the Machine stunt Latino vote

"The Latino Vote" is one of the most coveted of the 2012 election. But, for many Latinos living in Chicago, the question is not where their vote will go, but if they cast one at all. Underneath the hectic work-schedules and struggles of all minority communities is a distrust among Latinos in the American electoral system; a combination of the corruption back home and disenchantment with the perceived "political machine" in Chicago. 

Dual citizenship for Lithuanians not for everyone

The Lithuanian constitution, which distinguishes immigrant citizenship rights based on year of arrival, has caused a generational voting debate among those who came to the U.S. before 1990 and those who came after. 

For Arabs, there's more to American citizenship than voting

Future American citizenship provides Arab immigrants and political organizations with more political clout and opportunity at home and abroad. 

Filipino immigrants stepping onto the political scene

Historically Filipinos have been less politically active than other immigrant groups in Chicago due to corrupt politics in their home country and a colonial mentality that remains a part of many Filipinos' psychological mindset. Jessica O'Brien may be proof that this trend is reversing with second-generation Filipino immigrants. 

PERC leads Korean immigrant community into the political process

The Illinois state legislature was in the process of banning PERC, a very harmful chemical that is important to the dry cleaning process, before the Korean American Dry Cleaners Association of Illinois and others stepped in. The resulting amendment to House Bill 4526 was due to negotiation, and may be the catalyst in creating a stronger Korean presence in the political system. 

African activism coming off the sidelines

As the national 2012 elections draw nearer, African immigrants continue to focus on politics at home, rather than in the states. Immigrants are turning instead to local elections and community organizations to give voice to their issues. 

 The stories were released in June 2012. 

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Education dream of immigrants more than an Act

     Jack Doppelt

Dec. 22, 2011

[A version of this article was published as Education dream of immigrants more than an Act on Immigrant Connect]

A college education is often seen as the ticket -- to financial stability, to a job, to self-respect. Immigrants come to the U.S., seeking an education for themselves and their children. They work overtime to pay for it. That place in the American Dream has been memorialized in federal and state legislation that attempts to clear a way for those immigrants whose legal status effectively locks them out of classrooms, campuses and citizenship. A federal Dream Act has been pending in Congress for more than 10 years without passage; an Illinois version became law a few months ago. It created a privately-funded scholarship program for immigrants – documented and undocumented. 

In a continuing unique collaboration with Chicago area’s ethnic news media and the Community Media Workshop through its Chicago is the World project, Immigrant Connect explored the many challenges immigrant communities face in attending and acclimating to college. 

 There are stories of — 

• undocumented students “who turn to ROTC programs to fund their education; who reap tangible, financial rewards from confiding in professors and academic advisors; and who in the Korean community are emerging from the closet to access local resources; 
• the arcane procedures of nostrification being harnessed in the Polish community; 
• how a divide in the Lithuanian community affects students’ college experiences; 
• how Indian students find the comforts of home in the confines of campuses; 
• how opportunities for higher education among second generation Filipinos is creating a generation gap in the community; 
• and how the ticket to education among African immigrants is becoming a visa to a pan-African sense of homeland. 

Ten ethnic media outlets collaborated on the project. They are Extra (Hispanic), Reflejos (Hispanic), Pinoy Newsmagazine (Filipino), InformacjeUSA.com (Polish), Al Moustaqbal: Future newspaper (Arab), India Tribune, Korea Daily News, Draugas: The Lithuanian World-wide Daily, Urdu Times (Pakistani) and Africa Today. 

 Read the stories here — 

Undocumented students: ROTC sees the opportunity and it is us – Kids who have illegal immigration status are turning to the ROTC to aid them in funding their education. It’s not foolproof and it’s not supported officially by the military, but it’s a path officers in JROTC programs aren’t overlooking. 

For Chicago’s undocumented, opening up can pay off – As several Chicago-area college students are learning, sharing one’s immigration status with the right people can do more than support a political movement. For students looking for help paying for college, it yields personal, tangible results too. 

A silent struggle: Undocumented Korean students strive to attend college – In Chicago’s Korean community, undocumented and visa-holding students face mounting obstacles to paying for college. They’ve used scholarships, help from their parents, and long hours of low-paying work to make the best of the situation, but often it goes unrecognized. 

Transferring degrees, transferring lives – Nostrification is complicated; most people have never heard the word. It’s the process of recognizing a degree from a foreign university, and for Poles, language barriers, financial issues, and life’s tradeoffs often get in the way. 

Navigating the divide for Lithuanian college students – There’s a divide among college-aged Lithuanians. Recent immigrants who left after Lithuania’s liberation see the world differently than Lithuanians who were born in America, and whose parents and grandparents left Lithuania after World War II. And it affects their college experiences. 

Indian students find comforts of home in the confines of school – Even after Indian immigrants become acclimated to the new culture in America, they might not feel comfortable in a college classroom setting. This is why relations with professors and faculty are so important, can impact students positively or negatively, and are imperative to success in higher education. 

Higher education a blessing and curse to Filipino community – Increasing opportunities for higher education among second generation Filipinos is creating a generation gap in the community. 

Giving back by going back, with pan-African dimensions – For many African immigrants, education is their ticket to a dream of returning to their homeland and helping their communities. In the process, many are discovering an expanded notion of homeland, one with a pan-African cast to it. 

 The stories were released in December 2011 and January 2012.

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Cluj Habitat for Humanity

  Jack Doppelt

July 2007

In Song and Story 

July 2007

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Supreme Court confirmation hearings have perfected the art of the dodge

Jack Doppelt 

 July 20, 2005

[A version of this article was published as Say It Loud in The American Prospect]

For a process that has been with us for more than 120 nominees and that predated the rejection of George Washington's appointee John Rutledge in 1795, the Senate confirmation hearings of Supreme Court justice candidates are surprisingly open to interpretation and spin. 

Even before President George W. Bush announces a nominee to succeed retiring Justice Sandra Day O'Connor, the Bush administration and right-wing activists are priming the pump to co-opt public opinion so that the Senate's 45 non-Republicans either acquiesce to consenting to whomever Bush nominates or appear reckless and partisan as they shoot blanks at the candidate. The Senate is not without recourse; moreover, the public is entitled to better than a rubber advice-and-consent stamp. 

Bush has signaled in general terms the type of nominee he's likely to pick. As he said in an October 2000 debate with former Vice President Al Gore, he disfavors liberal, activist judges, and he "believes in strict constructionists." Since then, he hasn't deviated from that line -- but also hasn't said much more, except to indicate how much he admires Justices Antonin Scalia and Clarence Thomas. 

Interestingly, Scalia has had something to say about the usefulness of packed, under-explored phrases like "strict construction". In 2002's Republican Party of Minnesota v. White, the Court addressed the constitutionality of a provision in the Minnesota Code of Judicial Conduct that prohibited candidates for elective judicial office from announcing their views on disputed legal or political issues. The Court divided along ideological lines with Scalia writing the majority opinion that struck down the provision as both unconstitutionally limiting on speech and foolhardy in its attempt to ensure an open-minded judiciary. 

In his opinion, Scalia recalled an exchange during oral argument in which Minnesota's attorney tried to defend the provision by saying that a candidate is free to assert that he's a "strict constructionist," which, he wrote, "has little meaningful content" unless it is applied to a particular issue of construction likely to come before a court. That, however, is something a candidate is not supposed to address because he or she might appear to prejudge cases. Yet, Scalia mused, "without such application to real-life issues, all candidates can claim to be 'strict constructionists' with equal (and unhelpful) plausibility." 

Was Scalia arguing for more robust exchanges in which judicial candidates lay out their ideological beliefs more fully? Another part of the opinion leaves little doubt that that's exactly what he was advocating. He gave a more concrete example: the issue of same-sex marriages. He noted that, according to Minnesota's provision, a judicial candidate could not say, "I think it is constitutional for the legislature to prohibit same-sex marriage." He found that preposterous because he could say the very same thing in writings, classes, or opinions up until the very day he's a candidate -- and say it repeatedly after he becomes a judge -- yet somehow it was considered to be a mark of open-mindedness to say it's off limits during the very part of the process when the public can judge what is on his mind. 

Of course, it wasn't just Scalia who felt this way. He was writing for the majority -- for Anthony Kennedy, O'Connor, William Rehnquist, and Thomas. 

The less conservative wing of the Court took him on -- and on that very point. Justice Ruth Bader Ginsburg argued that there is no difference between a judicial candidate saying he thinks it's constitutional for the legislature to prohibit same-sex marriages and saying, "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages." Both statements, she wrote, "contemplate a quid pro quo between candidate and voter." 

Not surprising, perhaps, that Ginsburg would have such an opinion. She was confirmed 97-3 by the Senate in 1993 after hearings in which she avoided answering pointed questions on capital punishment and discrimination against gays. The Bush administration will try to get mileage out of the precedent that President Bill Clinton's appointees -- Ginsburg and Stephen Breyer -- were both confirmed overwhelmingly despite declining to discuss ideologically divisive legal issues. The administration won't say that they were confirmed in large part because Clinton vetted them first with Senator Orrin Hatch (then the ranking Republican on the Senate Judiciary Committee), who advised Clinton before the nominations to forego bringing forward Bruce Babbitt, who was perceived to be less mainstream. That is not a courtesy we are likely to see given by Bush to ranking Democrat Patrick Leahy, who has already gone on record as vowing to press nominees to explain their views on ideological issues and, if he's not satisfied with the answers, to vote against confirmation. 

The powerful lessons for Democrats and for the public going into the hearings are those from 1987, when Robert Bork's nomination by President Ronald Reagan was soundly rejected by a vote of 58-42 and followed by Kennedy's unanimous confirmation. Six Republicans voted against Bork (including Arlen Specter, who is now chair of the Senate Judiciary Committee). 

Specter said at the time that Bork was rejected because his views were "perhaps the most extreme of any nominee who had ever been considered by the Senate," and the hearings established the important precedent of the Senate's right to reject where there is substantial doubt that the nominee's philosophy comes within the broad continuum of U.S. constitutional jurisprudence." 

Right-wing advocates recall the Bork hearings as a lynching. Bork said then that his rejection was "part of a larger war for control of our national culture." Now he's saying that Kennedy typifies a Court that is "enacting a political agenda" as he warns Bush against picking a candidate like Kennedy, and unlike him, who would "tend to drift to the left in response to elite opinion." 

It is apparent that Bush does not want to end up with another Justice Kennedy. It is not clear whether he wants a justice whose views are aligned with Scalia and Thomas or with Robert Bork. That is what the hearings need to tease out. When Bork faced questions during his hearing that led him to declare with smug defiance that he could not divine a right to privacy in the Constitution, the public sensed both the extremism and the lack of judicial temperament. The Senate became emboldened. 

Justice William Brennan is often quoted for his invocation in New York Times v. Sullivan that "debate on public issues should be uninhibited, robust, and wide-open." Seldom quoted is the tail end of the quote that warns that it "may well include vehement, caustic, and sometimes unpleasantly sharp attacks."

That's what lies ahead for Bush's nominee -- and a good but messy thing, too. 

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