Inasmuch as the death throes of the Trump Administration will undoubtedly include the President’s granting a number of distasteful pardons – perhaps including an attempt to pardon himself – this seems an appropriate time to recall the Constitutional law instruction of our greatest fictional President, regarding the limits of his Article II pardon power.
[Full disclosure: I heard David Ignatius of the Washington Post express many of the substantive concerns set forth below on MSNBC’s Morning Joethis morning. I still consider it appropriate to post this because it was written yesterday.]
So much for feeling a modicum of sympathy for President Trump’s anguish in defeat.
As all who care are aware, U.S. Secretary of Defense Mark Esper was relieved of his duties yesterday by Mr. Trump. Mr. Esper has been replaced by Christopher C. Miller, director of the National Counterterrorism Center, described in some accounts as a loyalist to the President. (No confirmation as to Mr. Miller’s political sentiments here; I had never heard of him until yesterday.) While it probably matters little at this point to Mr. Esper personally, the inferences one might draw regarding the potential significance of his removal for the nation are worthy of reflection.
In a note I published last June, “The Fourth Election: Part II,” I commented in part as follows:
“Clearly Mr. Trump has considered himself unfettered since his [Senate impeachment] acquittal, and has felt free to exact revenge and pursue vendettas against those he considers to have wronged him or his entourage. Does anyone think that Mr. Trump will be more restrained if he is re-elected? Does anyone wish to wager that Dr. Anthony Fauci, who has at times displeased the president with his candid assessment of the extent of COVID crisis, or Secretary of Defense Mark Esper and Chairman of the Joint Chiefs of Staff Mark Milley, who each publicly separated themselves from the President’s actions in Lafayette Park, won’t be removed from their positions if and when Mr. Trump no longer considers such removals a danger to his re-election prospects? [Italics in Original]”
I noted in these pages yesterday: “… Mr. Trump is unpredictable, and retains control the federal machinery for another ten weeks. If any of the following individuals, I would take the following steps to guard against risks to the Republic during the interregnum in the event that Mr. Trump either resists leaving office, demonstrates irrationality or paralysis as he absorbs his defeat, or otherwise conducts his office in a manner dangerously deleterious to American domestic or international interests. [:] … Defense Secretary Mark Esper and Chairman of the Joint Chiefs Mark Milley: I’d very quietly have trusted outside counsel advise me as to the circumstances under the Military Code in which a subordinate officer can relieve a commanding officer.”
Is Mr. Esper’s removal no more than an instance of Trump retribution? Almost certainly. A portent of anything more significant? Almost certainly not. Canaries undoubtedly occasionally die in coal mines for reasons other than inhalation of poisonous gas. That said, Mr. Trump has fired the civilian in the chain of command between the military and himself who was resistant to the use of American troops against our citizens, and replaced him with an individual that at least some consider more loyal to Mr. Trump. (It would be fascinating to know whether Mr. Esper had indeed been researching rules of the Military Code relating to removal of a superior officer that I suggested yesterday that he might.) While Mr. Esper’s removal probably has little meaning other than to provide any American who has regrets about voting against Mr. Trump further reassurance that his/her vote for Mr. Biden was well entered, Mr. Trump’s future exercise of his presidential power arguably bears closer watching than all the hoorah arising from his electoral antics.
In a past note, I offered some observations as to how Russian President Vladimir Putin might react, if President-Elect Joe Biden won the presidency, during the interregnum between the determination of Mr. Biden’s victory and his Inauguration Day. There are obviously many parties with interests to pursue during the coming ten weeks, particularly since President Trump seems, at least at this point, intent on futilely thrashing about. How a number of pivotal players might view their respective opportunities and challenges:
Mr. Biden first: He’s already doing it. The President-Elect is projecting momentum, inevitability, moderation, and unity. He is executing his Coronavirus policy, and either has or will (critical: after securing the Trump Administration’s approval) publicly and privately expressing American stability to both allies and adversaries. While Mr. Biden has already alluded to a slew of Executive Orders he intends to issue on Inauguration Day (e.g., extending DACA, re-entering the Paris Climate Accord and appropriately rescinding overtly biased-based Trump Administration actions such as the Muslim ban), he should defer announcing dramatic policy reversals that don’t have a tinge of bias, such as those relating to fracking regulations and the Iranian nuclear deal.
I earlier indicated that during any interregnum between Trump and Biden Administrations, Mr. Trump’s failings will render American foreign policy at its most impotent in over a century; that said, Mr. Trump’s foibles and instability may cause many of our adversaries to tread gingerly.
Mr. Putin: I have come to the opinion that if Mr. Putin – who has yet to extend congratulations to Mr. Biden — thinks inflaming American domestic passions will make future relations with Mr. Biden more difficult, he won’t. I think Mr. Putin will be tempted to exert influence in Belarus and might probe Ukraine.
Chinese President Xi Jinping: Having recently secured the Mainland’s position in Hong Kong, and being aware of President Trump’s erraticism and that Mr. Trump may well blame Mr. Xi for his defeat due to Mr. Xi’s early Coronavirus dissembling, I expect Mr. Xi to standvery still. Although an overt move against Taiwan is undoubtedly tempting, it’s too likely to provoke a bellicose response from Mr. Trump.
North Korean Supreme Leader Kim Jong Un: Will do what Mr. Xi tells him to do. See above regarding the dangers of provoking an unstable Mr. Trump.
Iran Supreme Leader Ayatollah Sayyid Ali Hosseini Khamenei: The Iranians undoubtedly consider Democrats like Messrs. Obama and Biden easier to work with than erratic and warlike Republicans [Note: I agree with the Republicans on this one ;)]. Mr. Trump probably hates Iran even more than he hates China. If you are Iran, this is the time to stand pat and avoid provoking Mr. Trump.
The Taliban in Afghanistan: This group is so driven by hate that it can’t get out of its own way. Although Richard Haass commented in A World in Disarray, “[D]iplomacy and negotiations tend to reflect [armed conflict] realities on the ground, not change them,” I would nonetheless venture that if it was smart, the Taliban would throttle down its violence in Afghanistan, continue its peace talks with the Afghan government, avoid provoking Mr. Trump, give Mr. Biden the psychological space to remove our remaining troops – all but a foregone conclusion if the Taliban can restrain itself — and then overrun the country. Since the Taliban has never demonstrated a shred of strategic thinking, this seems the Middle East’s, and perhaps the world’s, wildest card.
Our allies: Whether happy or sad at Mr. Trump’s defeat, these nations need the United States. They’ll seek to make accommodation with Mr. Biden. If I were Mr. Biden, I would see what if anything could be done with German Chancellor Angela Merkel – the ally most obviously thrilled at the prospect of Mr. Trump’s departure — to obstruct Germany’s Nord Stream 2 pipeline project with Russia.
On the domestic sphere:
Senate Majority Leader Mitch McConnell: Mr. McConnell will quietly pull the party trappings out from under Mr. Trump. Although some commentators are talking about establishment Republicans’ desire to hold Mr. Trump’s base sans Mr. Trump, my guess is that the pros realize that a movement like Mr. Trump’s needs a charismatic demagogue. They rode Mr. Trump to a lot of conservative judges; they know they can work with Mr. Biden; and … they know that Mr. Trump was never qualified to be president.
Rupert Murdoch: By far the dominant voice in the alt-right propaganda echo chamber. His Wall Street Journal and New York Post have already called the election for Mr. Biden. Some liberal talking heads are talking about “what the Fox News hosts will do.” I am surprised by that; these hosts have the platform that Mr. Murdoch gives them. If/when Mr. Murdoch tells them to shift their perspective from “The election was rigged” to regret that “Mr. Trump lost, and it’s time to look forward,” they’ll do as they’re told. Attacking Democrats will be at least as good for Fox’ business as hyping an obviously unstable and unqualified loser who is probably going to seek to become Fox’ competitor.
The following will sound paranoid, but Mr. Trump is unpredictable, and retains control the federal machinery for another ten weeks. If any of the following individuals, I would take the following steps to guard against risks to the Republic during the interregnum in the event that Mr. Trump either resists leaving office, demonstrates irrationality or paralysis as he absorbs his defeat, or otherwise conducts his office in a manner dangerously deleterious to American domestic or international interests. Almost certainly unnecessary; but precautions perhaps worth taking:
House Speaker Nancy Pelosi: There is undoubtedly a lawyer – undoubtedly a man 😉 – elegant, cultured, who is at the epicenter of Democratic Party power politics. Call him, “Mr. Clifford.” (If one Googles “Clark Clifford,” you’ll see the prototype.) If I was Ms. Pelosi, I would have already called Mr. Clifford, and – her lips to his ear — asked him to draft a generic Article of Impeachment for use if necessary.
Defense Secretary Mark Esper and Chairman of the Joint Chiefs Mark Milley: I’d very quietly have trusted outside counsel advise me as to the circumstances under the Military Code in which a subordinate officer can relieve a commanding officer.
Vice President Mike Pence: After consulting with Secretary of State Mike Pompeo, I’d have trusted outside counsel advise me regarding the 25th Amendment (this last almost certainly won’t happen).
Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett: The ball is almost certainly not going to be hit to them in any meaningful way. I’d already be relaxing in a warm bath with a glass of fine wine [or in Justice Kavanaugh’s case, a cold beer ;)].
President Trump: Every one of us has suffered an emotionally crushing setback at some point or other. I would suggest, with genuine sympathy – despite the danger his instability presents — for the unspeakable anguish that the President, a man beset by crippling insecurity, is now undoubtedly experiencing, that he consider the following clip, the conclusion of the portrayal of another talented, proud, and deeply flawed man in a film that I guarantee that all men of the President’s and my vintage absorbed at the time. It provides perspective if not solace …
At the time this is typed, the Associated Press has called Maine, the only state besides Nebraska to apportion its Electoral College votes by Congressional District, by the same split that prevailed in 2016. NBC has called Wisconsin for former Vice President Joe Biden, although the Trump Campaign has indicated that it will demand a recount. Mr. Biden is ahead in Arizona. Vote in the large metro areas of Michigan and Pennsylvania is still being counted, with Democrats apparently optimistic about their chances in Michigan. Pennsylvania, despite a currently sizeable lead for President Trump, has too much outstanding vote to readily lend itself to forecast, but Democrats clearly believe that they have a solid opportunity to win the state. Mr. Biden leads in Nevada, the only state won by former Secretary of State Hillary Clinton in 2016 still in question.
If Mr. Biden achieves the Electoral College victory arguably – but far, far from securely – within his grasp, the Trump Campaign will almost certainly mount various challenges to the reported results. Former U.S. MO Sen. Claire McCaskill provided what was at least for me a reassuring reminder earlier this morning: unless it’s over a few hundred votes, state recounts rarely overturn initial results. This year, it could be closer, since the Trump Campaign, aided by Republican-controlled legislatures in Michigan, Pennsylvania and Wisconsin, will be looking to have invalidated as many of these states’ mail-in votes as it can, but the Democrats will seemingly retain the edge.
The Trump Campaign might bring a lawsuit in Pennsylvania, where Mr. Trump now leads, to halt the counting of ballots that could provide Mr. Biden with a victory and the state’s 20 Electoral votes. Any such challenge will obviously go all the way to the United States Supreme Court. Perhaps Pollyannish: I don’t think even Mr. Trump’s Supreme Court appointees will issue a ruling that will have the effect of invalidating Pennsylvania ballots rendered according to the state’s then-existing rules. (This does not mean that Mr. Biden will ultimately prevail when all the votes are counted.)
The gaping divide among U.S. citizens demonstrated by the election results is clearly worthy of a future note, but not here. My only comment: assuming for the moment that Mr. Biden does win the presidency by what will clearly be very small margins in a decisive number of states, it’s hard not to conclude that but for the Coronavirus, Mr. Trump would have secured a second term. Such suggests that the gap within the U.S. citizenry may yawn even more widely that the Electoral College results might ultimately reflect.
Finally, amidst another unbelievable polling debacle, Arizona, its vote count currently significantly favoring Mr. Biden, is the only swing state for which polling results even remotely resembled its final vote tallies. If the Grand Canyon State’s 11 Electoral College votes are pivotal in winning Mr. Biden the presidency, I was particularly struck by an observation made last night by an Arizona reporter: that Arizona Republicans may not “have come home” as Republicans did in a number of other supposed swing states because they have not liked Mr. Trump’s incessant bitter criticisms of the late U.S. AZ Sen. John McCain, one of the state’s revered favorite sons. There will never be any way of knowing for sure, but if Mr. Trump, a man with glaring dictatorial aspirations – whom Sen. McCain called his “adversary” — loses the White House in part because of the unwarranted disrespect he spewed upon Mr. McCain – and is ironically replaced by Mr. McCain’s close friend, Joe Biden, who gave the eulogy at the Senator’s private burial service – I suspect that this late American hero might feel that by his drawing the enemy’s fire, victory for America was achieved; that his service to his country is now complete; and that he can rest in peace …
[A brief – but entirely warranted – respite from the political maelstrom upon us.]
“In the glass, the grey-blue eyes looked back at him with the extra light they held when his mind was focused on a problem that interested him. The lean, hard face had a hungry, competitive edge to it. There was something swift and intent in the way he ran his fingers along his jaw and in the impatient stroke of the hairbrush to put back the comma of black hair that fell down an inch above his right eyebrow. It crossed his mind that, with the fading of his sunburn, the scar down the right cheek that had shown so white was beginning to be less prominent …”
“And what could the casual observer think of him, ‘Commander James Bond, C.M.G., R.N.V.S.R.,’ also ‘something at the Ministry of Defence, the rather saturnine young man in his middle thirties sitting opposite the Admiral? Something a bit cold and dangerous in that face. Looks pretty fit. May have been attached to Templar in Malaya. Or Nairobi. Mau Mau work. Tough-looking customer. Doesn’t look like the kind of chap one usually sees in Blades.”
“Bond knew that there was something alien and un-English about himself …”
Moonraker, 1955: Ian Fleming
Put aside that in today’s world, James Bond’s womanizing was profane and his drinking habits gargantuan (in the books – unlike the films — 007, despite regular vodka martinis, drank a wide range of different beverages, including Dom Perignon champagne, scotch highballs, sake, and Red Stripe beer); to many young men coming of age in the 1950s and 1960s — which included me – the British Secret Service Agent with the “Licence to Kill” brought to life in 13 books by Ian Fleming between 1953 and 1965 (the last published posthumously) was the epitome of duty, elegance, worldliness and working class grit. He provided our first inside look at countries such as France, Turkey, Switzerland, Japan and the Bahamas.
I suspect that those of us who view James Bond primarily through Mr. Fleming’s works – rather than through what I consider for the most part to be special effects films — are a shrinking number. For those that developed a mental picture of 007 through the novels, Sir Sean Connery, who just passed away, was James Bond come to life – in the same way that Al Pacino was Michael Corleone of the Godfather novel and, in an earlier era, Clark Gable was Rhett Butler rising from the pages of Gone with the Wind. As Bond, Mr. Connery perfectly projected the written character’s blend of suavity, courage, toughness, and resilience. The only places where Sir Sean’s portrayal deviated from the written character was with the double-entendre dialog, which was a movieland construct; the written Bond was a working agent who considered himself expendable and, world-wise though he was, didn’t engage in witty repartee. And … Mr. Connery had brown eyes :). Of Sir Sean’s successors as Bond, Daniel Craig has come the closest to Mr. Connery’s standard, because Mr. Craig captures the written Bond’s essence – the working class grit – but unlike Mr. Connery, Mr. Craig doesn’t look like Bond and his tuxedo always figuratively seems a bit ill-fit. Roger Moore and Pierce Brosnan, both distinguished actors and otherwise favorites of mine, made fine Bond fops but failed to credibly project the seriousness of the character. Only Mr. Connery had it all.
As the testaments to Sir Sean, recounting his many roles, have rolled in over the last couple of days, for me two beside Bond stand out: learned scholar Dr. Henry Jones, the father of Harrison Ford’s Dr. Henry (“Indiana”) Jones, Jr., in Indiana Jones and the Last Crusade; and British Agent John Mason in The Rock, a role in which Mr. Connery in many ways combined his James Bond and Henry Jones personas.
Sir Sean was one of those actors for me that when you hear of his/her passing, you feel genuine regret.
As anyone who reads these pages is aware, I have been – along with President Trump and apparently the rest of America’s political junkies – taken with polls. At the time this is typed, FiveThirtyEight.com (538) shows former Vice President Joe Biden with a lead in every swing state I’ve obsessed upon during the last year, with a lead above 5 points in all three of the Upper Midwest states in which Mr. Trump eked out his 2016 victory. I will be fascinated to see how closely 538’s findings on the morning of Election Day square with the battleground states’ final results. I expect that Mr. Biden’s final 538 swing state margins over Mr. Trump will differ from the candidates’ final swing state vote totals, for two reasons:
First, the Democrats’ substantive and political approach to the Coronavirus has necessarily required them to rely heavily on what in some states have heretofore been “non-traditional” voting methods – mail in, early drop-off, etc. – which seems likely to result in a proportionately greater number of Democratic than Republican votes being rejected for legitimate (and in some cases, illegitimate) reasons.
The second is more fundamental: the reluctance by some poll respondents to admit that they support the President. In a past note, I discounted that factor; now, I’ve tentatively concluded that there is indeed an “undervote” that will lift Mr. Trump (to what extent remains to be seen). I’ve changed my mind because by all objective measures, the President should be trailing by much more than he is. When pundits bore down into polling results, they note that while Mr. Trump is usually found to lead Mr. Biden narrowly in “the Economy,” he loses to Mr. Biden by notable margins in areas such as, “He cares about people like me,” “Handling the Coronavirus,” “Healthcare,” “Protecting Social Security and Medicare,” “Maintaining America’s Place in the World,” “Addressing Climate Change,” “Environmental Policy,” even – surprisingly – “Maintaining Law and Order.”
I fear that the dichotomy lies in what Mr. Trump has proven to us: Emotion trumps [if you will ;)] reason. Rationalists (which, at least in this context, apparently include me) fail to appreciate this. I would venture that if approached in a way that eliminates partisan overlay, many of the President’s supporters would prefer Mr. Biden’s substantive policies to Mr. Trump’s. I suggest that the polls don’t accurately reflect the deep affinity that a large share of Americans have for Mr. Trump because pollsters don’t ask the right questions (and to which they wouldn’t get a full share of accurate answers even if the respondents are willing to admit it to themselves):
Yes or No: Are you angry that your life hasn’t turned out as well as you expected?
Yes or No: Do you believe that America should be white, Christian, and straight?
Yes or No: Do you just want things to be … the way they always were?
For some, all three questions conjure images of a golden homogeneous carefree past, where everything made sense … that actually never was. Put aside that we shouldn’t go back; we can’t. Former President Bill Clinton, whom I consider the most gifted politician of my lifetime, famously said, “Elections are about the future.” I would submit that the outcome of this one will indicate whether we are ready to meet the opportunities and challenges of our future — one of the qualities that actually made America great — or are determined to drown in misshapen memories of our past.
If polls are to be believed, President Trump’s standing has fallen sharply among seniors. Commentators have generally attributed Mr. Trump’s apparent loss of senior support to his mishandling of our Coronavirus response. If he has indeed lost senior support, I wonder whether it doesn’t have more meaning than that: while COVID has brought into stark relief Mr. Trump’s incompetence and disregard for seniors’ safety, it has also caused seniors to confront the sheer lunacy of his presidency. Seniors remember when the president, even if you disagreed with his particular policies, at least … made sense. While Bernie, Elizabeth, or Pete might have conjured up fears of continued craziness, Joe Biden offers the prospect of … sanity. Even if some fellow seniors don’t share my deep abhorrence for the president’s lies, bullying, racism, and dictatorial inclinations, I suspect that many share my attendant wish for a stop to the noise and the craziness.
I’m fascinated that in recent days the Republicans have tried to resurrect their allegations about … wait for it … former U.S. Secretary of State Hillary Clinton. Mr. Trump has spoken about it; Vice President Pence threw in references to Sec. Clinton near the end of the Vice Presidential debate; I saw one clip in which Secretary of State Mike Pompeo assured us (complete with sardonic smile, almost diabolically rubbing his hands in glee) that he has Ms. Clinton’s allegedly deleted emails and will tell us more before the election. This is obviously designed to elicit the Pavlovian response from the Republican faithful. We ourselves have family members (of both genders) who get terribly exercised at the very mention of Ms. Clinton. My reaction to Mr. Pompeo’s claim: unless he produces a validated Clinton email which says, “I told Joe Biden that I was intentionally violating email security protocols and exposing our most sensitive information to Russia and China, and Joe said, ‘Great – Go for it!’”, what swing voter – upon whose vote the outcome of the presidential election will rest — cares anymore? While she’s perhaps not the most likeable, I have never understood the Republican rabid Hillary Clinton fixation. As First Lady and then Secretary of State, her responsibility was to support the policies of the sitting President. Has there ever been a more inept national politician? With all of the Clintons’ institutional advantages in 2008, how does one lose to a 2-year Illinois U.S. Senator, no matter how charismatic he is? In 2016, how does one lose to … Donald Trump? Let her rest in peace.
I haven’t been able to muster up that much interest in Judge Amy Coney Barrett’s Senate confirmation hearings or Judge Barrett’s impending ascension to the Supreme Court. As all that read these pages are aware, I’m terribly troubled by the Republicans’ hypocrisy in thwarting Judge Garland’s Supreme Court nomination while pushing Judge Barrett’s; to me, it’s not about what the Senate had the right to do or not do, it’s about partisan Senate Republicans’ failure to honorably do what they should have done. That said, it’s clear that Judge Barrett seems overwhelmingly likely to be confirmed. Since she is undisputedly eminently qualified (albeit staunchly conservative) and apparently has no objective disqualifying factors such as drug addiction, I believe she should be. I will nonetheless venture that if Mr. Biden wins the election and the Democrats gain control of the Senate, the liberal angst about Ms. Barrett’s ascension is overwrought. Demographic and cultural mores sweeping this nation will not be held back by six conservative Justices, including the three Trump appointees, frantically trying to hold back the tide. Public perception of the Court is no longer of robed oracles on pedestals as it was when President Franklin Roosevelt proposed his court packing plan in 1937. Although Mr. Roosevelt’s initiative resulted in the most stinging political defeat of his career [although it didn’t stop him from being re-elected – twice – thereafter ;)], some scholars suggest that Mr. Roosevelt’s legislative overture caused “the switch in time that save nine” – conservative Justice Owen Roberts’ sudden joining with the liberal Justices to uphold New Deal positions. I predict that independent voter support for court packing will mushroom if the Affordable Care Act is struck down or Roe v. Wade overruled. The current conservative Justices will ultimately either accommodate their rulings to changing American sensibilities, be neutered by a legislative increase in Supreme Court seats, or depart the Court via “voluntary” retirement or impeachment. On the other hand, if Mr. Trump is re-elected, a conservative Supreme Court majority will be among the lesser of our problems.
As the polls indicate – whether or not accurately – a potential “Blue Wave” in unlikely places such as Texas and Georgia, I wonder whether former U.S. TX Rep. Beto O’Rourke and former GA State Rep. Stacey Abrams have experienced pangs about rejecting the Democratic National Committee’s repeated requests that they run for the U.S. Senate in their respective states in 2020. While their reluctance earlier this year was understandable – both had come off close defeats in a non-presidential election year, and presumably didn’t like their electoral prospects against apparently popular incumbent Senators in a presidential election year – arguably the enthusiasm each engendered in their narrow 2018 defeats, against a backdrop of a seemingly dramatic shift in voter sentiment brought about by Mr. Trump, might in hindsight have given either or both of them a springboard to victory. Two years ago, everyone knew of Mr. O’Rourke and Ms. Abrams; how many can name the current Texas and Georgia Democratic Senate candidates?
A good friend recently sent me the following link to an article reporting upon the State of Wisconsin’s ongoing negotiations with Foxconn. The arrangement touted with such fanfare in June, 2018, by President Trump, then Speaker of the U.S. House of Representatives Paul Ryan, and then WI Gov. Scott Walker is — and there is no kinder way to accurately describe it — a debacle.
A close friend, no fan of President Trump, texted me a few days ago, and said in part:
“As you know, I’m voting in person. It’s not a political statement, but a practical statement. The way your vote doesn’t count is screwing up filling out the ballot properly. I know I won’t screw it up in person.”
I have also decided that I’m going to vote in person. Although I’m at least as likely to screw up a mail-in ballot as our friend is, mine is a practical decision born of a different concern. In a note a while back, I indicated, “I hope it won’t be necessary, but if it is, on November 3, for the country I want my children and grandchildren to live in, I will be willing to shake the hands of 20 desperately ill COVID patients and hug 20 more if that is what is required to reach a ballot box to vote against Donald John Trump.” It’s time to back that up. While measures that extreme probably won’t be necessary, given the malevolent manner in which Mr. Trump has sown distrust in a process which provides more of our people an opportunity to vote (an approach for which there is no credible evidence of any significant fraud having ever occurred in this country, and an approach he himself uses), the high likelihood that his lawyers will seek court orders to prematurely stop the counting of mail-in ballots in swing states such as Wisconsin, and the equally high likelihood of complicity to keep Mr. Trump in power by the bitter and resentful Republican Relics that control my state’s legislature, I refuse to be disenfranchised. If there are but two Wisconsin votes recorded for Mr. Biden on Election Day [our friend undoubtedly being the other ;)], I want to know that one of them is mine.
[If one intends to review this post, but has not yet read Part I (which is immediately below), I would start there ;)]
Upon hearing of Supreme Court Justice Ruth Bader Ginsburg’s passing and my estimation that it was likely that Republicans would immediately move to fill her seat, I feared that given progressives’ capacity for uncontrolled outrage, exacerbated by Republicans’ inexcusable refusal to act on President Obama’s nomination of Judge Garland four years ago, progressives wouldn’t be able to contain themselves. In a random sampling of liberal outlets over the weekend, there appeared wall-to-wall liberal apoplexy about Republicans’ filling Justice Ginsburg’s seat. I would suggest that such frenzy is counterproductive. Bob Woodward reports in his book, Rage, that Presidential Advisor and Trump son-in-law Jared Kushner’s “… core understanding of communication strategy … is, ‘Controversy elevates [Trump’s] message.’” If – while it remains to be seen how big an “if” it is — Senate Republicans suffer no more than three defections in seeking to confirm Mr. Trump’s nominee, they hold the winning Senate procedural hand. For progressives to expend undue emotional reserves on a contest that they’re likely to lose at the expense of a contest that they can win – the presidential election – is at best a political gamble and at worst, detrimental to their strategic electoral designs.
That said, there is a distinction between luxuriating in incendiary rhetoric and outwardly temperate expression (even if seething inwardly) of distress and concern with the impact another conservative Supreme Court Justice might have on American rights, and with the blatantly partisan nature of the Republicans’ maneuvers. The Democrats’ target audience, persuadable swing voters, could be alienated if they make hyper-partisan declarations, but may well be amenable to reasoned arguments and indignation. While Republicans will attempt to make the fight about abortion, I would offer that Democrats’ best approach will be the line that some have already adopted: how another conservative Trump appointee might adversely impact the now widely-popular Affordable Care Act, with dispassionate commentary on the contrast between the Republicans’ refusal to proceed with Judge Garland’s nomination and their rush to judgement on the Trump nominee. Then, get back to the Coronavirus. They should follow the wise advice of Samuel L. Jackson’s character, Jules Winnfield, near the end of the film, Pulp Fiction: Be cool. I’m somewhat reassured that at least Democratic presidential nominee and former Vice President Joe Biden apparently understands this; reports indicate that he said nary a word about the Supreme Court during a recent trip to Wisconsin.
Recent accounts indicate that the Trump Campaign is calling upon Mr. Biden to identify whom he would nominate to the Supreme Court if elected, and that Mr. Biden is rebuffing such calls. Here, I think he is missing a golden opportunity. He should declare that he will re-nominate Judge Garland. I submit that such a declaration would be brilliant politically. Progressives will grumble, but faced with the prospect of another Trump term and Trump Supreme Court nominees, will ultimately stay in line behind Mr. Biden; Mr. Garland will have the aura of having been previously nominated by Mr. Obama, providing Mr. Biden cover with his constituencies preferring a nominee of color; Mr. Biden’s naming of Judge Garland, a moderate, would destroy Mr. Trump’s argument that Mr. Biden is a tool of the “alt-left”; and Mr. Biden’s selection of Mr. Garland would seem fitting to swing state swing voters offended by Republicans’ unfair treatment of him. I believe that if Mr. Biden would name Judge Garland, he “wins” the Supreme Court debate with persuadable voters no matter what the Republicans do with a Trump nomination.
While political prognostication is engaging, Justice Ginsburg’s passing and the potential fallout has left me with a couple of more fundamental impressions. The first – perhaps to the surprise of those who are aware of my obsessed keyboard frothing about Sen. Mitch McConnell’s contemptible, despicable, execrable dereliction of duty in refusing to proceed with the Senate confirmation process for Judge Garland – is that President Trump should put forth a nominee, and if, after appropriately-paced and illuminative confirmation hearings, the nominee is found to be judicially qualified and without other objective “disqualifying” factors such as drug addiction (not subjective legal views), the nominee should be confirmed. Article II, Section 2 of the Constitution provides: “[The President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme [sic] Court.” Four years ago, I wrote U.S. IA Sen. Charles Grassley, then the Chairman of the Senate Judiciary Committee: “I see nowhere in the [Constitution] any language limiting the President’s powers of nomination and appointment to the first three years of his/her term.” Mr. Trump is the President. He is within his term. He has not just the “Power” but the duty to put forth a Supreme Court nominee. As the late U.S. AZ Sen. John McCain once urged in another context: Let’s return to regular order. To me that needs to apply whether or not one finds “regular order” convenient. As abhorrent as I find Messrs. Trump and McConnell, there is no value to enshrining the notion that a President cannot perform a vital Constitutional function a quarter of the time. As our mothers taught us: Two wrongs don’t make a right.
We were with good friends [at a socially-distanced outside gathering ;)] when word came of Justice Ginsburg’s death. All felt a deep sadness both for the passing of a great American and for what it might mean for our country. My thoughts initially drifted to the likely political ramifications of Ms. Ginsburg’s passing, but as I contemplated the fire, I considered that no issue so divides our people as does abortion — which Supreme Court nominations have come to symbolize in the public mind — and that Justice Ginsburg’s passing, coming right when it did – neither early enough in Mr. Trump’s term that progressives would ultimately emotionally reconcile themselves to another conservative Supreme Court Justice, nor after Mr. Biden’s inauguration (if such occurs), when conservatives would emotionally accept that Ms. Ginsburg would be replaced by another liberal – could violently deepen the cultural chasms already existing between us; that the impending Supreme Court nomination and confirmation process has the potential to further rip and salt our deepest wound. It is easy to presume that as her condition reached its final stages, Justice Ginsburg explored with her physicians whether there was any way to keep her medically alive through January 20. There obviously wasn’t. Russian President Vladimir Putin couldn’t have drawn it up any better.
Notwithstanding Mr. Biden’s apparently encouraging lead in the polls, as we enter what I consider the most dangerous months for the future of our democracy since the defeat of Nazi Germany, it is difficult not to have concerns; we seem beset on so many sides. Yet, I find solace in Proverbs 3:5: “Trust in the Lord with all your heart, on your own intelligence rely not .…”