Yet more idiocy from democrats in an attempt to delay the inevitable... a solidly conservative Supreme Court.
And now we see the connections....Deutsche Bank.
Kennedy's son, it appears, knows the Trump organization very well as global head of real estate markets
Deutsche Bank plays footsie with Russia
So Kennedy owes DJT a favor and retires.
This conspiracy stinks to high heaven.
92
Acceptance that our Supreme Court is politcally compromised is the greatest blow our Democracy can ever suffer.
70
Well, enjoy your little discussion, but here is the inevitable: we’re going to ram through the most conservative Justice we can find, and we’re confident there isn’t anything the Democrat Party, or anybody else, can do about it. We control everything now, this will be easy compared to what we did with Gorsuch!
21
We can all hope for the Rule of Law to come to the rescue but now we know that Kennedy has a tether to trump and emoluments thru his son. This from a justice who tried to convince us that no harm would come from giving money a seat in the voting booth. And doing this self rightous job of convincing us at the same time his son was providing money to trump and his clan. I doubt even Will Rodgers had enough rope to lasso this rats nest.
44
Whine and moan all you want, Mr. Trump will put another fanstastic, young justice on the court by September of this year. It will be so fun to watch all of you leftists go apoplectic. What you don’t realize is that all of us on the right disliked Mr. Obama at least as much as you dislike Mr. Trump. But we didn’t act like little children who had their candy taken away. We regrouped and the country finally figured out how horribly destructive the democrats are.
22
"A Better Reason to Delay Kennedy’s Replacement"...
Or more specifically, a criminal like Donald Trump has no business being POTUS, appointing a Justice to SCOTUS, or being free to inflict nothing but misery and anarchy upon the world.
His business is only being tried, convicted and jailed for Treason!
49
Opinion is spot on.
21
Was Gorsuch such a bad choice? Roberts, well he keeps suprising the nytimes editors with his decisions. Remember Obama Care? Knock that one out of the park. The two haven't turned out to be brainless ideologue's.
In fact I'm more comfortable with conservative judges. Whoever Hillary would have picked could have been to far left but probably not. A conservative court might be a good idea if things do go to far left. Like FDR tried to do more than once. The decision on gay wedding cakes didn't end the world did it? I was glad about the Gore decision to.
Do the gentlemanly thing and hold back the appointment until it may work out for the Democrats? Who would Pence pick?
If you don't think the investigation of Trump is corrupt the FBI administrator who was recently escorted out of FBI headquaters said it all for me. There's no gentleman in politics.
9
Donald Trump is the U.S. President.
There's a mechanism for removing him before the next election -- impeachment.
Unless and until that happens, Pres. Trump has all the authority of that office.
To suggest otherwise is, well, silly.
19
Interesting. Delegitimize (and if you are as successful as the me too movement has been, evict) by accusations, however unproved, so as to kick the can down the road until (hopefully) the "right" type can be selected. What sophistry; is this what clerking for Justice Ginsburg taught you?
15
Would people please stop with this popular vote nonsense already? 86-85, 97-94, 78-132, 80-79, 88-86. Who won the series - a team that won more games, or a team that scored more points?
10
Why? Is this column ANOTHER attempt to “keep it civil!” Just wait and logic will win out!
I’m not waiting because being a “Keyboard Warrior” is for the birds.
Today, Saturday the 30th I’m walking in the “Keep Families Together” march.
Atlanta (Atlanta?) is expecting a minimum of 20,000 mostly women marching up Peachtree.
700 locations from my home of Hawai’i to Maine are marching. The time for incivility and revolution is HERE.
Remember, remember the SIXTH of November! (Apologies to Guy Fawkes, but we’re going to blow up our own parliament.)
VOTE!
22
I think I hear something...oh yes, that's the reverberation of McConnell's laughter around the rotunda!!
8
First, the Republicans are not going to wait.
Second, the Republicans are not going to wait.
Third, McConnell probably cut this op-Ed out of the NYTimes and put it on his bulletin board to read when he wants a good laugh.
13
Mr. Berman will never get back the time he wasted writing this silly opinion piece.
Nothing but more whining and far fetched ideas to thwart a legally elected president from performing his Constitutional duties and exercising his prerogatives.
The disappointed Resistance has not been able to accept their 2016 loss or all the other political ones that preceded it. They can't even figure out why they keep losing.
Their only solutions seem to be bizarre law suits on every imagined slight, not to mention endless marching in the streets and name-calling. Mueller's latest investigation involves assorted Russian businessmen who attended parties during Trump's Inauguration. Yeah, let's drag that Hail Mary out.
Now, in desperation they want to make the Mueller investigation a permanent feature for both of Trump's terms. Just to block Trump since they can't figure out how to beat him. They're really slow learners.
13
"People under the cloud of investigation do not get to pick the judges who may preside over their cases"
A perfectly logical statement.
I read the first 25 readers picks which seemed logical to me(a fairly left wing citizen)
Not seeing any Times picks in the first 25, I went to th Times picks section. As of 11 40 pm, there were only two comments. Both leaned far to the right of most of your readers and I presume most of our citizens(since potus lost popular vote by 2.9 million votes).
By what criteria were these chosen and others reflecting the sensible majority not deemed worthy?
I would love if your ombudsman could comment
13
Unless you ungenerous liberals believe Mr. McConnell to be a lying scoundrel and a dastardly fraud of a human being, there's really nothing to worry abut here.
He passionately argued in favor of giving The American People a voice in such portentous matters.
We're good until December, at least.
Just love that man.
3
Are Dems must be praying that 2 of the 4 liberals are willing and able to continue or the deck will really be stacked for decades...
1
"Otherwise, there will be a stain on the legitimacy of this nomination, on the performance of whomever is confirmed and, even, on the Supreme Court itself."
There is already a stain on the supreme court which should more aptly be renamed the supine court. That stain is the appointment of gorsuch.
14
I am not a Trump supporter but at some point this investigation needs to wrap up and start the end game. You can't have a never ending investigation and keep pointing to it. That's just political garbage. If there was anything remotely criminal involving Trump, Mueller would have at least disclosed it to some Senators so they know. But he has nothing criminal on the guy so lets stop this weak dog and pony show. And since Democrats have no ability to strategize, let me help you out. The average american independent voter is tired of hearing about Mueller's investigation and its starting to play against the Dems. You need to Wrap It Up!
5
I agree with Berman.
Next, convince the cult.
6
Gee, Millenials. Still think Trump and Clinton "are like, both the same"?
15
Is the inability to grasp the concept that “Turnabout is fair play” innate to conservatives, or is this deficiency more correctly associated with Republicanism?
7
There is NO reason to delay this, why give the democrats an opportunity to obstruct the nomination when the republicans can appoint him now, without issue? The heel is on the democrats neck right now, there's no reason for them to release it.......and they won't.
The republicans won't let this miracle slip away.
1
Senator Susan Collins has the vote of her life, soon. As does Senator McCain.
12
Will Trump's appointees recuse themselves from his case when it gets to the SCotUS?
Of course not. Ethics in America is as dead as Dillinger.
18
You mean presidents under a cloud of an INVENTED claim?
3
Who honestly believes, if the roles had been reversed, 2 years ago, a Democrat Senate would have withheld a SCOTUS nominee with a million to one chance of winning a guaranteed race? Reid or Schumer wouldn't have a second thought on that.
What has everyone(that didn't vote for Trump) in a spaz, is Republicans have never played like this. Jeb(?), Kasich and most of the others would have backed down by now. They would still be backing down from the first day in office. (Maybe that's why they aren't in office.)
This maniac, Trump, loyal to his voters, like you have never seen, keeping the promises he made, doing what he was elected to, like no one they have ever seen before, doesn't give these carnival barkers a second look, because he didn't make them any promises and they didn't vote for him, that's why he is going to pick the best person from his already published list, that the fake news hasn't looked at, because if they had, they would have been hounding these judges and making up lies about these judges, like you have never seen before.
(It's harder to write like DJT speaks, than you would ever believe.) MAGA.
4
I hope Mr. Berman's wisdom will create pause in some moderate Republican's in the Senate. It will surely not persuade the hypocritical McConnell.
5
Bwahahahahahahahahaha. One can actually smell the desperation. If your party hadn't lost over 1000 elections at every level of government it wouldn't be in the position of having to constantly make anti-constitutional arguments, weaponize federal agencies against citizens, and otherwise deploy the authoritarian tactics the Left loves. So here's my advice, return to the constitution in every thing you do. Don't use the courts to win every argument you lose at the polls, and maybe these appointments won't be so frightening to you.
5
The idea that a president shouldn't nominate a Supreme Court justice in an election year is only valid insofar as it highlights how ludicrous McConnell's original assertion was. He said Obama shouldn't be allowed to nominate in a presidential election year. Now Schumer and Pelosi are saying Trump shouldn't be allowed to nominate in a midterm election year. Are we now really going to start saying that Supreme Court justices can only be nominated in odd-numbered years? Seriously?
The President is the president until his last day in office. The same arguments we liberals raised in defense of Obama apply to Trump now, as much as we hate it. He can nominate, sign laws, command the armed forces, veto laws, sign EO's and every other power afforded him by the Constitution. It's one thing to mockingly apply the GOP's own standards to them as way of pointing out how ridiculous those standards are in the first place. It's quite another to follow them down the rabbit hole of absurdity by calling those standards "valid".
6
It should be obvious by now that, as regards this president, the rule of law is dead. Recusal will just not happen because the stakes will be too high. When it comes to political issues the Supreme Court is every bit as political as congress and the current right wing majority is the most blatantly political I can recall. If perchance Mueller attempts a criminal indictment of Trump, that too will be struck down. Realistically all that is left is the court of public opinion. In anticipation of the Mueller report I suggest Trump supporters make a rare trip to a bookstore and pick up a copy of criminal law for dummies.
17
Now wait just a doggone minute here!
" ... his family worth hundreds of billions ... "
Just a few months ago, I read that Trump was exaggerating his wealth bigly, that he wasn't even worth a measly billion dollars – much less 10 billion dollars as he claimed in his financial statements filed when he was running for President. Now he's worth "hundreds of billions?" He stole that much already?
6
I'm sure Ruth Bader-Ginsberg now regrets not resigning back when Obama controlled the senate. She could have stepped aside and been replaced with a young, liberal justice in their 40's or 50's would would have sat on the court for over the next 30 years. You've got to know when to hold 'em and know when to fold 'em. She didn't.
12
Simply silly. To argue that the president should be restricted in his power because of an investigation is silly. If he's guilty, and the House impeaches him and the Senate convicts, then he is out. Absent that, he is the president and has every right to use his power as he sees fit.
Congressman Trey Gowdy is right about Robert Mueller. His investigation is tearing this country apart. He never had any reason to start it. He needs to finish it, now.
6
Mr. Berman's Opinion Piece is solid and well thought out. Donald Trump did not win the Popular Vote... it wasn't even close. He won the Electoral College but it may revealed that Russia's interference in the 2016 Election allowed this to happen. Donald Trump is NOT a Totalitarian Leader. He is NOT a Dictator. The next and newest Supreme Court Justice should not be appointed until after the MID TERM Elections. WE THE PEOPLE must insist upon this. WE DO NOT WORK FOR DONALD TRUMP. HE WORKS FOR US. If he wants to live in a Totalitarian Regime, I suggest he moves to Moscow so he can be close to his buddy "Putin" and buy a hotel there. And BY THE WAY....WHEN ARE WE GOING TO SEE TRUMP's TAXES???
11
There is indeed a "cloud," and it is clearing. Otherwise the author's assertion is a non sequitur.
1
The courts are the only way conservatives can force their agenda on Americans, because they know the majority of American's will never vote for their cruel policies.
They will fight---and Dems need to put aside their teacups and challenge them.
8
And Neil Gorsuch should recuse himself when the matter reaches The Supreme Court.
19
By that logic, Clinton should have stepped aside until the White Water fiasco was resolved. Factually, whomever Trump nominates must go through the approval process. I truly feel sorry for the liberal onslaught the nominees will face as every half wit liberal takes it upon themselves to harass them. As to the a law professor who penned this, I hope for the sake of your students, you do not teach constitutional law as your argument is devoid of rational thought.
10
Let me guess: The NYT won't be inviting Professor Berman to submit another Op-Ed any time soon.
Fortunately, we've still got this one to kick around.
Digging himself an even deeper hole, some might say (I'd say that, for example), Berman wrote this about President Bill Clinton, who named Ginsburg and Breyer to the Court:
"The Whitewater investigation ... had only just started when Breyer was appointed. There was at the time no investigation of criminal wrongdoing by ... [Clinton or his campaign]"
Word to the wise to future opposition parties:
When you demand an "investigation," be sure you ask the investigator to consider whether there might have been some CRIMINAL wrongdoing by President Jerko or a member of his campaign staff. Don't worry if nobody ever comes up with anything -- all you need is an "investigation," not actual evidence, or even a particular crime (just be sure to ask that they LOOK FOR some crime, any crime). That's all you'll need to keep President Jerko from filling any vacancies on the Supreme Court. With any luck, the Court will still be short-handed 4 years from now, or 8 years from now, when President Jerko leaves office and someone from YOUR party takes over. Hard to imagine that ALL of the Justices will have died or retired by then – probably only the ones you don't like will be gone. Just be sure there aren't any "opposition party" types running around then -- you sure wouldn't want some "investigation" to cramp the style of YOUR President!
4
I want to live in the U.S. again when the president is thinking about how to make the nation and the world a better place instead of how to safe himself from corruption scandals.
18
Should Mr Berman done a little research he would have known that Clinton nominated Justice Breyer as Whitewater investigation was launched by AG Reno. Should Justice Breyer resign now?
6
"whoever is confirmed"; it's "whoever is confirmed"
He was confirmed by the senate, not him was confirmed by the senate.
This opinion AND five bucks will get you a cup of coffee at starbucks. repubs control. it will be done..
5
Very helpful column. There is no obvious reason for the Court immediately to require or have 9 justices, because some issues might well be decided by an 8-person court, and those that end up on a 4-4 tie might well benefit from resting on lower courts decisions anyhow.
One wonders a little at whether Chief Justice Roberts is happy with the prospect that “his” court and its legacy and his reputation will go down in history as mainly achieving the takeover in America of authoritarian, not to say fascistic, Trumpists and the undermining of our democracy. Somehow I do not think even Justice Roberts would welcome that outcome, even though I cannot see him speaking out in warning or alarm. Perhaps he might.
9
McConnell will never, ever succumb to a delay based on Trump's legal quagmire. The razor thin margin in the Senate too much risk of defections based on amped up protests and pressures given more time. Elections too risky to chance. Besides Trump has proclaimed no collusion and no obstruction so why worry?
The Supreme Court may find themselves in the back seat of many important issues as local governments begin making their own laws with solutions to problems the GOP cult is ignoring. The GOP has always been, ostensibly, for 'States Rights' when it came to issues like voting rights, civil rights, etc. Hypocrisy with wings.
Recently though SCOTUS has unleashed many rulings like Citizens United and avoided touchy issues like gerrymandering. Robert's court has declared that racism no longer exists in the US and other such absurdities. The result is to transfer developing any solutions is left to state government. Predictions are that at least 20 states, for example, will no be able to outlaw abortion, freely.
The result of this malfeance is to give the GOP/Conservative movement free rein to challenge our democracy and our constitution.
2
As an attorney, I am embarrassed by such false and poor reasoning. First, historically in 1852, the Senate refused to give a justice a hearing in the last year of the presidential election. Second, this author, a liberal no doubt, conveniently forgets the Biden Rule (which this author almost certainly supported at the time as it was going to be used against a Republican). Third, there is no such constitutional requirement and the majority of the Senate appears to agree that this president shall get to pick the nominee and have a hearing on it.
Not to spike the football, but "elections have consequences" and "we won". Moreover, there is no basis, except speculation, that any justice chosen would not meet their constitutional obligation. In fact, Nixon's justices voted against him. This, of course, neglects the fact, that among honest and serious legal minds, given the unified theory of the Executive, it is not even clear the special counsel's actions (which are assumed to occur Rosenstein's comments notwithstanding) are lawful.
5
The Supreme Court has already been stained by Trump, through his efforts to engineer Kennedy's retirement for his own political purposes. And remember, as we learned with the Scalia friendship with Cheney, the Supreme Court follows ethical rules at its own discretion. If someone is tainted by association with Trump, and is on the Court to be his "boy" there is nothing we can do about it short of impeachment, which the GOP won't allow.
4
Good luck with this argument. GOP is only concerned with solidifying it's stranglehold on the country. Ethics are irrelevant to them.
4
I appreciate seeing the principle laid out here:"People under the cloud of investigation do not get to pick the judges who may preside over their cases." Can we please add to that this cloud he's under is essentially treason? Is it any coincidence that most everything he has done benefits Putin substantially and at the rate he is going, Trump will start a civil war and bankrupt the Treasury - making it another Putin trifecta. Trump must be cleared of all charges in this investigation. This treason issue makes the reason for the first McConnell obstruction look trivial by comparison.
3
Mr. Berman argues that the Mueller investigation should tie up the President's ability to be president and is therefore unconstitutional.
1
"a president who refuses to acknowledge any checks on his power as legitimate, whether those checks come from the courts, the legislature, the media, the government bureaucracy or his political opponents. "
That is a wonderful description of Obama. Instead of negotiating with Congress, or even his own party, he would just write an executive order or have a flunky at an agency write a new regulation.
1
We must remember that when the President and the Senate are of the same party, they will control the nomination and confirmation of Supreme Court Justices. Arguments against this reasoning have no foundation in logical thinking. Kennedy resigned with the clear understanding that the President would nominate his successor and the Senae wound either confirm or reject that nominee. That is the way the process is supposed to work and it will. I believe that the President will nominate a moderate jurist and he or we will be confirmed. The President and the Senators were duly elected pursuant to the laws of our country and they should carry out their responsibilities and ignore the “noise.”
3
This argument is blatantly obvious. Yet McConnell and the Republicans feel no such rationale constraint, only political expedience.
6
What Republicans did with the Garland nomination was an historic constitutional earthquake, and an event that should never have occurred.
But the core of that atrocity was that a valid nomination had been made, preventing the making of a second. The argument that the Senate's rules permit it to refuse to execute its constitutional responsibility is the nub. That problem does not exist this year.
In addition, for Democrats to now adopt the McConnell reasoning that nominations in an election year require new rules not in the Constitution is going to look like clueless hypocrisy to many midterm voters. It will be a self-inflicted wound, will permanently remove the stain now on Justice Gorsuch, and will ensure that the constitutional fault zone opened by McConnell becomes part of American constitutional law.
Why would the Republicans in Congress ever agree to such a delay when they themselves have done everything in their power to shield Donald Trump from legal accountability?
4
I am very excited that more conservatives are being appointed and I hope my many friends at the New York Times editorial board and many readers share in my enthusiasm. I enjoyed your view for the past several years and now its time for all of you to enjoy a new view.
6
If Hillary had not used a private, illegal server, for government business...
Had Hillary won the election, the Constitutional "what ifs" would be going at even higher intensity, than now. Merick Garland would be on the bench. Kamala Harris would in the on deck circle. Last rights for the 2A would be administered.
If the roles had all been reversed, there would not be one thing different. And, she's running. Until the buzzard lands, she's running.
2
This is the best argument for delaying Trump's Supreme Court appointment. Trump wants a dictatorship; and if he is allowed to pick a jurist before Mueller completes his investigation, Trump will get his dictatorship. And then our second Civil War will be inexorable.
2
Where was the check on Mitch? What does the document say? The Constitution allows for the Senate to create its own rules of order but not for the document to be ignored. “and he shall nominate, and by and with the Advice and Consent of the Senate, … Judges of the supreme Court,” There’s no ambiguity there. They were obligated to act. The Senate's non action implies consent because government and its business must continue. No framer envisioned that the core strength of “checks and balances” would be ignored. “And he shall…and with”…that conjunctive language orders these steps to be obeyed and executed. We, the people, cannot have government held hostage by anyone. Failure to act can only be read as surrender. I can’t believe I’m saying this but the Constitution needs an attorney. I’d like to see an interview with the Senate’s parliamentarian, who most people don’t know, writes every procedural thing spoken from the chair.
After 10 days of inaction I would have ordered Garland to the courthouse and to work. As chief law enforcement officer I would not have the Constitution ignored.
13
I see 4 possibilities:
"Why did Justice Kennedy choose this very moment to leave the Supreme Court? Why now?"
The 4 possibilities:
1.He colluded with Trump. Not sure quite how, but I know they colluded. I heard Kennedy's son was in on it too, and some Russian oligarch (or two). And Vlad Putin, of course -- any self-respecting colluder is going to make sure Putin's in on the deal -- though I've heard Putin will collude with just about anybody who asks.This time, though,I heard that Putin showed he was serious by taking his shirt off when he signed up, and he insisted that Kennedy and Trump take theirs off too. Putin claimed he wanted to make sure they weren't wearing a wire, but I think he just wanted to check out their abs.
But I digress. On to the other three possibilities:
2. He's 81 years old.
3. He's 81 years old.
4. He's 81 years old.
3
i do not think that the republicans believe the president is "compromised".
1
And for all of the reasons this article recommends delay, McConnell and Trump will jam thru a reliable partisan to save Trump from his inevitable fate.
1
Spot on, Prof. Berman. Except that this administration and this cowardly Congress likely will not wait. McConnell illegally prevented the consideration of a fine candidate and got away with it. He surely will not let this nominee, whoever it is, wait for consideration and appointment. And this supine (maybe even prone) Congress will go along with it all.
4
Problem: Republicans control the three branches of government.
2
If all the great legal minds in this country sat Trump down to explain the wisdom and logic in delaying Kennedy's replacement, Trump would delight in telling them where to go and do exactly opposite of wisdom and logic. He not only does things mindlessly, but with vicious, heartless, spitefulness. Trump has no concept of jurisprudence, mainly because it contains the word prudence, something he sorely lacks.
6
President Trump will rush his appointment of a draconian Justice to pack the Supreme Court as soon as he is able. Alas, Mr. Berman, notwithstanding your valid arguments in favour of not allowing him to replace Justice Kennedy before the Mid-Terms, he will happen. The vacated swing-vote seat of Justice Kennedy -- unforeseen till he retired only a few days ago -- knocked us for a loop. Lawlessness and autocracy are at home in our White House (and Bedminster NJ, Palm Beach FL, Trump Golf Clubs and all Trump gilded holdings that serve as alternative White Houses for our 45th president).
Donald Trump -- unfit and ignorant - is colossally compromised today. But it's clear to us that Trump will bend and shape our Supreme Court to his will in the few coming months before the Mid-Term elections. Never mind the gross injustice done by the tandem of Mitch McConnell and his obstructionist G.O.P. to scald and obstruct Obama's brilliant Supreme Court nominee after Scalia's death. Justice Merrick Garland waited in vain for a year until Trump won the presidency and seated his own pick Neal Gorsuch, who has aready ruled ultra-conservatively on two key Supreme Court cases.
Who could have imagined that our American President is a frighteningly real and present danger to our democracy on Independence Day weekend?
4
The Trumpers won control of SCOTUS fair and square. If you don't include Russian interference and Mitch McConnell stealing one of the nine seats away from the Democrats in 2016.
The Republicans will have their anti-freedom and liberty judge on the bench no matter what the Dems do to gum up the works.
All we can do for now is try to contain the damage SCOTUS can do until the resistance can elect a Democratic super majority to restore the American Dream and end our long conservative nightmare.
The American Revolution for liberty and freedom begins again in November 2018.
4
I do not believe this article would have been written if Hilary Clinton had won the election. The constitution clearly gives this authority to the President, no ifs, ands or buts. Do we delay filling this vacancy until the Mueller investigation is done or until a democratic president is in office?
2
OK, so a President should not be able to appoint judges who may decide his fate in some future unnamed court trial. Fair enough, but why not just have them recuse themselves? You know, the way that Ruth Bader Ginsburg would recuse herself since she expressed open hostility toward Trump during the runup to the election. Oh, the Notorious RBG should be allowed to participate despite her well-known animosity toward Trump? That sounds fair.
3
This is a travesty that will do incalculable damage to our nation for decades. If there's any chance Kennedy could be talked into changing his mind an effort should be made.
2
So Justice Breyer should not have been appointed, using your logic?
And let's be clear: McConnell cited the Biden Rule (1992), meaning to delay seating a SCOTUS justice until after the election during a PRESIDENTIAL election. McConnell has been crystal clear about this and you've chosen to ignore that nuance (see Kagan in 2010, for example).
Opinion articles such as this one are why we have President Donald Trump. In 2016 and, it appears, in 2020.
3
Where is the law firm that will file the suit requesting an injunction against the president for putting forth Supreme Court nominations while under investigation for obstruction of justice, and possible collusion with the enemy/treason? It (A) is legitimate and (B) should buy time till after the midterms
2
alas, "the cloud of investigation," if that's the standard for nullifying constitutionally mandated presidential function, can be created and sustained on little more than a whim, (easy to look that up these days).
mitch mcconnell's "anti-democratic ploy" (we agree there) is no excuse to subject the present judicial appointment to the same...doing that laves us in the proverbial "two wrongs"
swamp but, more important, furthers the habit of do-it-yourself constitutional amendment, reducing our founding document to trash wrap.
You're grasping at straws here. Reality check, we (Democrats ) lost the electon and now there are HUGE consequences to pay. In case you are afraid to predict what they are going to be here is my list:
1. Overturn of Obergefell (same sex marriage) by January 2021 when the next president is inaugurated, no matter who that might be, followed by a general roll back of protections for GLBT citizens under the law.
2. Return of abortion rights to states by January 2015 s that
women in large portions of the country will have no geographic access to reproductive rights.
And this dire prediction doesn't require Ruth Bader Ginsberg stepping down or heaven forbid dying. If that hapens SCOTUS id going to be doing the bidding of Conservative Christians for 50 years down the road, no matter who is elected President.
3
Beginning with Reagan, then accelerated when Bush 2 who “didn’t win” but was gifted the presidency followed by President “who lost by 3 million votes”, our Democracy is long dead. McConnells ploy that stole the last SCOTUS SEAT and now this seat. I am close to moving to Canada or Portugal, civilized democracies.
2
Life expectancy was considerably shorter when writing Supreme Court Justices would serve for life.
Pope's and dictators serve for life.
Term limits are essential in this age due to the situation we presently face. The conservatives are not making decisions in the best interest of the American citizens. They are making a travesty of the court, Kennedy's Citizens United destroyed the political process.
4
The only chance the dems have-(A message I send my academic classmates from Yale law--"Now I know its not very professorial, but then again I am a trial lawyer, but the Dems should take a page out of the Republican's playbook-come up with some theory, any theory, as to why Congress can not confirm the pick of a President while that president is under investigation, and find a friendly judge in a friendly circuit , and get an injunction. The Republicans came within a vote of eliminating Obamacare that way.The idea that "moderate Republicans will vote against confirmation, or that McConnell with use his own"near election " rule against himself, is pollyanna thinking. Desperate times calls for desperate measures; the problem is it calls for the Dems to have hutzpah-something they lack"
9
I am not unusually conspiratorial minded, but Trump complimenting Justice Kennedy on his "special boy" reeks of "Godfather" lingo. Ditto the assurances to Kennedy that his "legacy" would be preserved. What more important legacy does Kennedy have than his son. Had Kennedy been on the court when an aspect of the Mueller investigation came before it, he would have had to recuse himself because of his son's involvement at Deutsche Bank with Trump real estate. With only eight justices, it would have been more likely that decisions would favor the Mueller investigation. It is urgent that people speak out to protect Roe, and to protest all the roll-backs of immigration rights, asylum rights, health care, voting rights, human rights, LGBTQ rights etc. that are already happening. But it is essential that we demand the senate not to approve any of Trump's nominations to any courts while he and his campaign are under an investigation that has already produced indictments.
6
Any professor of Constitutional law who insists on using the "stole" word with reference to Merrick Garland is writing as a political hack, not a scholar, because a scholar would know that there is no appointment until the President nominates AND the Senate confirms -- and if it does not confirm, by commission or omission, it does not confirm. If, nevertheless, the scholar insists on the vocabulary of the political hack, the rest off his arguments merit analysis through that same lens.
7
Please then choose your own term to describe Mr. McConnell's, and by extension Senate Republicans', response to President Obama's nomination of Garland, making a sound, reasoned legal argument for their refusal to act, by their inaction.
6
Senate Democrats will ask the (young, white, Christian, Federalist-Society-approved) Supreme Court nominee if will recuse himself from proceedings related to the Mueller investigation. If he says yes, Republican Senators will be reluctant to approve his nomination. If he says no, Democrats will be unanimous in rejecting him, and they will pick up at least a couple of Republican votes.
The game is not over, in other words. It may only be the first quarter.
11
I hope you are correct. But, I'm not counting on it.
Duetche bank, Justin Kennedy and the Trump Organization loans are enough to delay the nomination.
Considering Kennedy's swing votes since Trump's election and his Citizens United decision it's cringe worthy hearing all of the praise.
Commendable decisions regarding gay rights and Roe vs Wade but it's like the Justice giveth and the Justice takes away.
7
The problem with this, and so much of "resistance (like in Paris in '42 they wore RESISTANCE T shirts?)", is myopia. Trump gone the problem remains, it has developed over decades. Maybe even existed in the seed.
Let's start with the odd number. Nothing in the Constitution says it can't be even. So let's leave the court at 8. We need more ties, when there is not a true national consensus. Let time evolve the better answers, that bring a majority vote.
OK, we all know Trump's choice will be on the court before October. So at the next Dem Prez we move to 10. Easypeasy.
But the real problem is the '45 year' term. 8 or 10 or 12 year limits would make more sense. That will knock out the lock ins for conservative seats we have seen since Reagan. It will allow a smoother flow in the evolution of case law, also.
Last, a tradition of equal representation between Dem-GOP seats (in that this is where we actually are, with partisan divide) on the court, which given the even split between Dem-Gop presidencies since FDR, with our new term limits for the Justices, should be a natural result of the reformed SCOTUS.
Focusing soulfully on devil Trump tunnel visions the effort to improve our institutions long term. There is the fatal flaw in this author's take.
4
There is another option, the new nominee and Gorsuch could both recuse themselves from deciding those issues if they came before the court.
7
I agree with every word of this piece. Just as this runaway, boundary free president loves busting precedents to expand his power and personal bank accounts, so should the sane in congress see this situation as unprecedented and demand that a president under an investigation that has yielded significant results, refuse to allow this appointment until the verdicts are in.
9
President Trump prides himself on his unpredictability. He has a great opportunity to demonstrate that in his nomination of a Supreme Court justice. The least predictable thing he could do would be to slow the process down , carefully consider a wide range of candidates, and choose someone whose loyalty is to the honest interpretation of the law, not to the president.
He is actually very predictable, if one ignores the day-to-day noise he makes, on twitter and such. He will be sure to nominate the most sympathetic judge he can find-- sympathetic to Trump, that is-- and he will do it with reckless speed. Let us hope that there are the usual flaws in his vetting process...that is fairly predictable too.
Like, nominate Merrick Garland.
Maybe he could nominate Merrick Garland, and thereby give America the Justice we deserved in the first place? Well of course unlikely in the extreme, but one can always hope.
In addition to the concerns voiced in the op-ed, there is another area of concern to be considered in choosing Kennedy’s replacement. That is the connection between Kennedy’s resignation, the Mueller investigation, and DT’s real estate deals.
I am most vehemently not a conspiracy theorist. But I read this morning that Kennedy had already chosen clerks for the fall term before doing an apparent about-face and resigning. I also read that his son, a real estate executive at Deutsche Bank, was involved in many Trump real estate deals and is a close associate of Trump.
There may be nothing to the timing of the resignation and connection to Trump’s son, but I find these facts troubling. Why did Kennedy choose clerks, an indication that he would be sitting when he October term begin, and then resign? What part did his son play in Trump’s real estate deals, transactions that are now being investigated by both the New York State Attorney General and Robert Mueller? Did Kennedy’s son urge him to resign, and did anyone at the White House, including Donald Trump, ready out to Kennedy’s son?
Any legal action relating to the Deutsche Bank deals will inevitably end up in the US Supreme Court. Did Kennedy wish to avoid having to recuse himself in a case that involved his son?
“Reaching out” and avoiding of embarrassment are not crimes, but any quid pro quo would be such a crime. To me this whole situation smells bad. Kennedy should not be replaced until after November elections.
37
Trump absolutely should not be allowed to appoint another justice to the Supreme Court until the Muller investigation is complete. There is no doubt that Trump will be looking to appoint someone who will be loyal to him and the Federalist Society has developed a roster of candidates that will fill that bill. If we allow that appointment to go forward we will cause greater damage to our democracy than could possible occur by having one less justice on the Court for time. This is not a theoretical discussion. If Trump gets to appoint another justice to the Court at this point in time we will be presiding over the end of our democracy and Trump will be delighted and so will Putin. Sadly, you can no longer assume that an appointed Justice will mellow out once on the Court. The candidates will have been vetted insure that does not happen. Come on folks this is all hands on deck time. IT REALLY DOES MATTER. A democracy cannot survive without an independent judiciary and even the appearance of bias is enough to taint the process and Judges are required to avoid it. Why would we accept anything less from the president of the United States. Just because Trump doesn't understand democracy, or respect the rule of law does not mean we have to accept his world view. We do so at our own peril.
33
Until we hear the results of the Mueller investigation, we don't know if the President has been treasonous.
16
To paraphrase Trump himself, we all know Trump is guilty. "No judges, no court cases" was Trump's illegal demand, and I agree. Let's put the entire misbegotten Trump presidency up for a voice vote. Just once.
1
Trump states he believes Putin when he says Russia didn't interfere in the election despite every National Security Agency stating they did in fact interfere. Trump is the Commander in Chief, any president in the past would be accused of treason had he stated he had no confidence in any of his National Security Agencies.
Republicans would have demanded a firing squad had Obama praised and believed Putin, alienated allies, divided races, name called like a juvenile or took delight in creating tension, destroying the function of every Cabinet and overlooking corruption by his appointees.
That is the reality of the US in 2018
2
At a minimum, any Democrat contemplating voting for confirmation of the appointee, should demand as a condition to his/her vote that the appointee agree to recuse him/herself from any case involving such questions.
9
We will soon get to the point when a President can only nominate a Supreme Court Justice in the first 24 hours of his Presidential term. Otherwise, we should wait for a new mandate from the voters.
8
A reasoned argument, such as this one, has absolutely no effect on Republicans. They will do everything in their power to ram through their hard-right agenda, including picking a hard-right justice. We must take back some of that power.
33
There is little doubt that in Trump's intended interviewing of potential nominees he will seek to determine whether the nominees will be loyal to him. He's unlikely to be as blatant about loyalty as he was with Jim Comey, but the very manipulative side of Trump can be subtle. He may ask, e.g., about separation of powers or where the nominees draw the line on political questions. He'll want to know their opinions on the legality of a grand jury subpoena of a President or an indictment of a President or even a President's ability to pardon himself. Again, he'll need to be indirect. Nevertheless, if he does not like the answers, he'll move on to a nominee who gives the right answers and effectively promises to do his bidding.
4
The smartest nominee will tell Trump everything he wants to hear and then use his best and independent judgment after having been appointed. Trump cannot trust anyone, ever.
1
Mr.Trump is attempting to pick his judges and taint the jury pool by disparaging the FBI and Justice Department.We do not know Mr.Mueller's conclusions but everyone needs to wait for the results.We know that Russia meddled in the elections to favor Mr.Trump.We know that some of his close advisors were paid by Russians.We need to know the extent of "collusion".This is not the time to put a new judge on the Supreme Court who will forever be suspect as a "plant" by Mr.Trump.
10
We cannot expect the current Congress to act in defense of the Constitution, since they demonstrate both armchair anarchy and silent disinterest. The decisions the Senate will make will be made before mid-term elections in November. It does not look good for today’s millennials and post-millennials who have never experienced a time without some constitutional rights that were guaranteed just during my lifetime, nor for democracy-loving (those supporting equality for ALL) Americans, threatened by extreme anti-democratic ideologies. The make-up of the Supreme Court now will not change for decades but the make-up of congressional majorities and control of the Executive Branch can change and really must change to enact legislation signed into law that are solutions to some prior SC decisions and those in the future that threaten equality, freedoms, and justice.
7
The legal issues in regard to shielding Mr. Trump from criminal prosecution, such as whether a president can pardon himself, or whether a sitting president can be criminally indicted , are not the type of issues that there is a conservative/ liberal view or ideology in which conservatives and liberal justices would rule differently about them.
So as opposed to issues, such as gay marriage or abortion, where it can be foreseen how a conservative justice will rule because there is an established conservative view about those matters, the issues that Trump may raise in order to protect himself from prosecution are not matters in which there is an established conservative view so that Trump can predict how a conservative justice will rule.
So the suggestion here that any justice who was appointed by Trump would twist the law and write an opinion that protects him from prosecution is ludicrous if not outrageous. Because justices on the supreme court care will not make a mockery of themselves by making a ruling because they want the defendant in question to go free.
It is beyond clear that if in fact a justice who was appointed by Trump had to decide a case of whether Trump as a sitting president can be indicted, a motion that demanded that the judge must recuse himself because he is not capable of being impartial and ruling against Trump, the motion would fail.
3
I have to disagree because we have seen that trump will not nominate anyone who will not protect him & show full loyalty to him & him only. He has said this many times about sessions. This administration will do nothing for the american people until after it protects trump. Once he has done away with all obstacles to his ruling as he sees, then he might let the justices make some decisions but they will have to fall in with his wishes. This is all about trump & his future & not the future of the US. As it is said, “you can not serve two masters.” In this case they can not serve trump & the american people.
2
I would hope Prof. Berman is less disingenuous when he is teaching. He calls Mitch McConnell's objection to the Garland nomination a "version" of Chuck Schumer's current objection. Nice try, Professor. The Garland nomination was in a Presidential election year when the incumbent was termed out and could not run again,so a new President would be elected that year. Also there was a Republican majority in the Senate so Garland would not have been confirmed anyway. His seat on the bench was not "stolen", it was doomed by a shortage of votes in the Senate...period. One would expect a little less distortion of reality from a university professor. No, I take that back.
14
That Garland was nominated a year before a presidential election rather than four months before Congressional elections in a non-presidential election year is a distinction without a difference, as meaningful as saying that Garland was nominated in the year 2016 but this is 2018.
And Garland would have been approved by the Senate. He was one of the most impressive Supreme Court nominees in several decades (Roberts being the other). That's the reason there was no vote.
The precedent created in 2016 will haunt this nation for years. One day the Democrats will regain control of the Senate, and they will block any Supreme Court nomination by a Republican. Watch. This is what happens when norms are willfully violated.
13
So President Obama should not have exercised his Constitutional prerogative and responsibility by nominating Judge Garland, so a new president could nominate somebody of his or her choosing?
Then why should President Trump be able to nominate a replacement for Justice Kennedy this close to an election when Democrats may regain control of the Senate?
10
Mitch McConnell violated his constitutional responsibility by not allowing the process to go forward. There is NOTHING in the Constitution about the president's appointment powers ending in the last year of his term. Merrick Garland ought to have been given a hearing and a vote.
President Obama followed the advice of Often Hatch and nominated Garland, the country had a right to see him and others explain their objections to a 60-year-old left of center distinguished jurist.
The professor is right. Mitch McConnell is a thief and worse, he is also a liar because he misrepresented the words of Joe Biden and concocted some nonsense about a Biden rule to cover his bad faith and failure to do his duty to the Constitution.
That so many Americans are willing to overlook this or to excuse it is the reason why our government is in such a moral and political mess.
1
We have 3 equal branches of government that provide checks and balances. That basic principle applies no matter which party controls the White House. I'm sure that the Professor didn't object when President Obama issued executive orders whenever he deemed that "congress had failed to act" The left only defends the constitution when they are out of power. He also fails to mention that it was Joe Biden, not Mitch McConnell who first claimed that Supreme Court vacancies shouldn't be filled in Presidential election years. Both sides are wrong; neither side is intellectually honest or consistent.
6
Both sides are wrong; neither side is intellectually honest or consistent = False balance? Did VP Biden enact this? No. This is such an obvious tactic to re-frame the argument. A conservative on NPR said the same thing. So I guess the messaging had been decided in advance. McConnell and his group did in fact deny President Obama's nominee even a hearing.
The question here then is based on what you believe to be true and whether a president who is under investigation should be allowed to pick judges (not only the Supreme Court but other Federal districts) who might, very soon, in real time be hearing cases which directly point back to his presidency.
9
Joe Biden's statement was perhaps ill advised, in light of the fact that the far right keeps throwing it back in the face of anyone who condemns McConnell's action. But I would note three things:
1. He didn't actually act on his comment.
2. There was no vacancy on the Supreme Court at the time. His comment was merely in response to Republican attempts to create one.
3. When it looked like Hillary Clinton was going to win the election, Republicans floated the idea that she should not be allowed to nominate ANY Supreme Court Justices during her [first] term. Why don't we throw THAT back in their faces?
1
See Politifacts on the so-called Biden rule.
This is a Mitch McConnell lie to cover his theft of a Supreme Court seat. Biden never said that the sitting president ought not make a Supreme Court appointment. Google it and see what he actually said.
1
If 2 GOP senators decided to leave the caucus and become independents who sometimes caucus with the Democrats, there would be critical mass for electing a new majority leader and with that someone new who can set the schedule for the confirmation process. There are such senators right now and you know who they are.
3
The President has just won the equivalent of the Powerball Lottery. It's already over with....Republicans control the Senate and the timing exclusively.
With Kennedy exiting, and at some point the 85 year old Bader-Ginsberg and 79 year old Breyer likely to be next, he has an unprecedented opportunity to completely reshape the court for many years to come.
Conservative landslide.....winner takes all. When all is said and done, Trump's overwhelming impact and legacy lasting for decades will be his appointees to the Supreme Court and the decisions they make.
5
When "winner take all" refers to a president who lost the popular vote and whose campaign (at the least) is under criminal investigation, does that strengthen or weaken your confidence is our democratic institutions?
1
And the conservative base throws a party, I know I will!
1
Of course there should be a delay in selecting Justice Kennedy's replacement - or in the event of any other Justice retiring. Until ALL of the planets have aligned. In a year, when the Democrats have control of the White House AND the Senate. In a year when there are no elections. In a year when there are no primaries. In a year when there are no primary campaigns revving up. In a year when there is no money being solicited to fund campaigns. In a year when none of the Democrats either in the Senate or the White House had been tainted by even a whiff of scandal themselves. That would be the appropriate year - in a spirit of calm, absent of partisanship. A judge would be found, after much searching - a judge who had been found wandering in the woods, never having had a political thought in their head. That would be the appropriate year.
6
Your ignorance of the vast middle ground between your scenario and the current one shows a breathtaking lack of rationality. I am grateful it is not shared by most Americans. If you can, imagine that all of the elements in place now were in place when Obama was president -- would you actually be saying the same thing?
1
Another Abe Fortas moment to be uncovered as a retainer for future services?
Oleg Deripaska assists in vetting the candidates for his friend at 1600.
The July summit surprise has Trump and Putin reviewing those qualities that make a supple and compliant justice. An agreement to agree and a Joint Communique on the Nominee.
3
When Comey came out and said that the e-mail investigation was back on, Republicans everywhere said she should withdraw from the race - or at least people shouldn't vote for her - because of that pending investigation. there would be too much distraction from her duties as President, and if indicted and found guilty, we could face a Constitutional crises and/or impeachment - a travesty to the country. They were right.
But remember at the time, we did not know Trump was laboring under the same investigative cloud. Hillary's problems were rendered moot with Comey's second statement clearing Hillary, while Trump's problems have blossomed during his Presidency, taking untold man hours, resources and tax payer money to address.
I agree with Mr. Berman that no President in this situation should be allowed to name a judge to the Supreme Court, a privilege of the office with decades long consequences for the body politic.
I also agree that "that point is unlikely to stop Mr. McConnell or his colleagues", who do not operate from a sense of duty, allegiance to the country and the Constitution, but to raw, blatant political self-interest.
So, given that the nomination, and the advise and consent of the Senate to the candidate are a done deal, what can we do?
First, we can take it to the streets. Next we can take it to specific Senators who are either shaky Dems or flippable Republicans, and demand a more moderate judge to assure a balance on the Court.
11
Why did Justice Kennedy choose this very moment to leave the Supreme Court?
Why now?
Remember that among the Justices' impressive powers, there is this one: to decide when to quit. Only illness or death can force them out. Other, older justices have chosen to stay - all liberals.
Justice Kennedy surely did not take this lightly, after 3 decades on the Court, and in the midst of constitutional turmoil like the US hasn't seen for a long time.
As the Times has recently shown, Kennedy has pretty consistently played in the center of the Court. When the Court went right, he went right with it.
When pondering on his retirement, putting the ball in the center of the political game would come first.
And so he did, by retiring late enough after Trump's first nomination to the court, and early enough (though not too early) before the next elections to the US Senate where the future of the Supreme Court is ruled on. And for once, it could be a swing election.
Kennedy thus gives Trump and the Reps a clear alternative.
If you push hard for an arch-conservative, then you give Dems another advantage in the mid-terms. You'd allow them to energize non-White voters whose reluctance to show up for Hillary put Trump in the White House. You'd put more Rep seats at risk.
If you want to win that SC nomination without further jeopardizing your majorities at the mid-terms, you should opt for someone in the centre, palatable enough for at least some Democratic senators. For someone like me...
Interesting theory. Based on what has happened so far, do you think it would come true?
This piece by a law professor is but another attempt by leftist academia to act as "storm troopers" for the radical causes the left is now espousing. We see it everyday and if it were not so petty and ubiquitous that we might believe it really has merit. Today's Supreme Court has been made the end run of the political system by the left. Because it cannot abide by the republican form of govt to achieve its aims, it has for my entire 50 years of adulthood used the court to achieve what it has failed at in the ballot box. Rights have been created by penumbra, instead of the political system which we all acknowledge to be our foundation. His argument basically goes that Trump should not be able to appoint a Justice because he is under investigation and the new Justice would be responsive to his wishes and defense (or have the appearance of doing so). By that reasoning Trump should not appoint any judges to the federal courts because action against Trump could start in any Court district. And those attacks on Trump begun in district court on the muslim country immigration ban have been upheld by the Supreme Court. Yes Trump is under investigation, but the only entity that has been shown to have violated the law by accepting something of value to influence an election is the chain from the Hillary campaign to the Dem law firm to the Dem associated investigative firm to the ex-Brit spy getting unverified dirt on Trump from Kremlin associated sources to hurt his campaign.
13
Exactly.
Interesting that Mr. Berman failed to mention that the "investigation" is riddled with grotesque political bias, lies under oath, illegal leaking, transparently lenient investigatory decisions in the email investigation, and FISA corruption.
Yet that investigation is justification for denying Trump's constitutional authority to nominate a replacement justice?
2
Yep it's all a ruse . . . as of May - 17 indictments, 5 guilty pleas.
It is sad you do not have eyes to see & ears to hear. When your rights are slowly & quietly taken away by a court of trump, by trump, & for trump...you will never know you have lost them.
The opinion of Mr. Berman can only exist in the oxygen-depleted atmosphere of academia. He seems to think that ideas like "fairness" and "fair play" form a part of today's political culture. Would any ruling class-- whether it be Republican or Democratic-- in today's political climate put fairness, democratic values, and public good ahead of political success? Perhaps this works in the Ivory Tower but not in Washington, DC. This type of idealism is tiring, naive, and out of touch.
8
Sadly, I am compelled to agree.
1
I'm all for idealism, AND for returning 'fairness' to the political/social rules we go by.
Berman is perhaps being academically polite, of necessity. Law professors should try to sound serious & reasonable, especially when addressing the entire nation.
What he glosses over is that there is already a huge stain on the Supreme Court of the US. It has become blatantly & unapologetically partisan, creating new law against decades of precedent only to serve a transparently political agenda, & with only the feeblest & most convoluted arguments to justify itself. This is probably the most serious one of numerous ongoing failures of American democracy.
Yes, by all means abandon ethics because the very idea is "out of touch." Perhaps that what "Academia" (you make the term a pejorative) is for: keep us to high standards of ethics-based, rational thinking. What a concept, and how "out of touch."
By now, these arguments would have become annoying had they not first become so entertaining. Heaven knows, we need our reasons to laugh.
The only audience that embraces them is the chorus of Democrats who already are sold on ANY means of preventing Trump from doing ANYTHING. It’s merely the hopeless obstructionism of the moment that focuses on increasingly hilarious and hopeless means of preventing him from nominating Anthony Kennedy’s replacement.
You guys can’t even do OBSTRUCTIONSISM intelligently or successfully: obviously, the Tea Party should take pity on you and offer a few pointers.
90% of Republicans support Trump, a key reason why Trump was elected was to seat conservative federal judges, most particularly constructionist Supreme Court justices, Republicans control the Senate and the likelihood is extremely high that we’ll have Kennedy’s replacement confirmed before the end of August. Months BEFORE the midterms, which almost certainly won’t alter the majority in the Senate anyway, even if Democrats have marginally better chances of taking the House.
Rather than expending energy to give faux-reassuring talking-points to liberals and that merely entertain the rest of us, liberal op-ed writers (and particularly law professors from our notably bluer institutions) should focus on the kinds of arguments that might sway Collins and Mukowski to trade their votes for a constructionist justice who FAVORS Roe v. Wade.
As a general matter, Opiners should TRY to be useful.
15
Your last sentence includes you , Quisling. Anyone who would not be concerned about the integrity of our country's elections being attacked by an enemy such as Russia could only be a Republican sycophant to the biggest threat to this country that has ever occupied the Oval Office. This investigation has nothing to do with party affiliation and everything to do with a breach of national security that may well have been aided and abetted by Trump and his cronies.
Never before has any presidential campaign been riddled with such a myriad of connections between a foreign nation and such a campaign...and certainly not with an enemy.
Campaign manager , Attorney General , National Security Advisor , several members of the Trump family , and etc. have had dealings with the Russians whose interference in the electoral process is questioned by no one but the Donald.
The very strange and obvious mutual affection between Putin and Trump along with Trump's obvious attempts to sidestep sanctions ordered by a bi-partisan Congress. And now a summit with Putin after alienating the US from all of our allies and starting a trade war for ridiculous reasons.
If ninety per cent of republicans are on board with ignoring such a threat to America , then it is obvious that they are amenable to a Republican dictatorship.
You call these arguments "entertaining" if not "annoying", but you don't call them wrong -- that would be a lot harder, I agree.
The professor's argument is for We the People.
It is clear that the majority of Republicans are just fine with the lying thieving tactics of Mitch McConnell and his GOP minions in the Senate. However, Republicans are not the majority of the country. Trump is an Electoral College president who did not win the popular vote.
It is true that unless some principled Republicans step up and say no to a far right-wing pick, that Trump and McConnell will get what they want. However, it is not what the majority of Americans want. And We the People have to make this clear at the ballot box in November.
Trump is only president because too many people voted for candidates who could not win. The majority of Americans did not want him making these decisions. We have to correct this mistake in November, and, in this one instance, follow the advice of George Will, and votes for Democrats.
1
Democrats need to get their lawyers to file a motion that a president who might have committed impeachable acts does not get to appoint a Supreme Court Justice. (Period.)
This has less to do with the outrageous idea that he might try to pardon himself. It has to do with common sense.
Otherwise it is really impossible to uphold the idea that nobody is above the law.
When I think about all the destructive , harmful things Trump has done since he entered office, it makes me nauseous to think he now also gets the privilege to wield influence for the next thirty years whereas Obama who committed no such offenses, wasn't even suspected of having done so, did not get to appoint Garland for Justice (who was no liberal by any means).
3
It is time for all of us to stop the merry-go-round and the game-playing. President Trump has the right to nominate a replacement for Justice Kennedy and the Senate has the duty to approve or not approve. Senator McConnell’s unscrupulous and disrespectful refusal to hold hearings and a vote on President Obama’s nomination of Merrick Garland is a black spot on his record – but that does not excuse others who are now trying to play or threaten to play the same dishonest political game. As much as one may despise this president and his attempt to undermine faith in our government institutions – conduct that no one should ever forget or forgive, it is important that WE and our representatives respect those institutions and their procedures. Rather than waste their time sniping at each other, I’d rather see our Senators spend their time carefully researching the background of the nominee, honestly assessing the person’s character, intelligence, common sense, philosophy and legal abilities and determining if that person truly deserves to be a Justice of the Supreme Court. Democrats [and especially women] have good reason to be concerned about this nomination [let alone anything this president says or does], but they do a disservice to this country if they vie to undermine the process and procedures of our government institutions.
1
We have a gerrymandered Congress in control of Congress. There is nothing "fair" about allowing a man under investigation appoint a SC Justice; he should never have been allowed to appoint an evangelical anti-employee ideologue. He should get another bite at that apple. Trump is mentally off balance; he has shrewd people calling the shots. This is corrupt; and, we do NOT have to support it under the guise of constitutional rights: Obama didn't get that right, did he?
I've read you're article twice now Mr. Berman. I deeply regret to tell you that although it may be a good 'reason' as far as The Republic of the Unitied States of America is concerned, it is nonsense.
Republicans have been working towards the point since the Great Depression. They are not about to let a minor thing such as a President being investigated stop them from achieving what they have worked so hard for.
I wish it were different, but it isn't. Most humans, I'm afraid, are not ready to be equal to every one else. Republicans know that.
4
As much as it disgusts me to say this, I think that Mr. Trump has every right to submit his appointment to the Senate. If we used investigation of the President as a reason to disallow the President, it would further damage our wounded democracy. The partisan rancor has become so severe that investigations of presidents will become the norm for the next few years.
Let us please return to the rule of law, even when the result will be repugnant to many, if not most, Americans. The Constitution and our laws are more important than the occasional sociopath who might occupy the Oval Office.
5
If nothing else fails the next Democrat President could increase the number of Supreme Court justices to twelve. thereby mitigating the last two conservative picks and adding an additional third liberal voice.
Of course that's really playing hardball.
5
Horrific.
But when he was elected it was almost inevitable that he’d have to replace a Supreme Court justice, not counting the Scalia/Gorsuch case.
The outrage generated is due to the timing, not the fact.
Although Mr. Trump is under a cloud, legally, he has not been charged with anything, yet. Presumed innocence and all that.
It’s unfortunate but that’s the way it is.
I think someone should be looking into a possible future in which Trump et al. are proven to be criminals and seeking ways of undoing the acts of that criminal, one of which would be to unseat a justice that was appointed by a criminal, if that indeed turns out to be the case.
3
Gorsuch stole a seat Obama had the right to fill. He is a man without honor, and his Decisions will be without honor.
When the Supreme Court is comprised of twelve women, then they will have the right to render a decision on abortion.
To me, having men decide this issue constitutes the ultimate abuse of power.
12
Suppose this: Mueller finds high crimes and misdemeanors and/or indictable offenses, inter alia, related to efforts to collude with a foreign national enemy state to secure his election, and he is impeached and convicted, leading to the inescapable conclusion that he was elected as a result of illegal conduct. His tenure, and administration are thus illegitimate. What constitutional remedy is there with regard to the one, or probably two, lifetime appointments of USCT justices, along with dozens of circuit and district court judges?
7
Suppose this: Everything you are hoping for never occurs:
1. Mueller finds no overt acts in furtherance of a Russian conspiracy and no evidence of collusion, direction, leadership, or management by Trump...thus no criminal indictment. And no illegitimate administration or Constitutional crisis as you suggest.
2. Trump's second nomination is confirmed by the Senate and before his first term is over, the 85 year old Bader Ginsberg and 79 and nearly 80 year old Breyer also exit due to advancing age, thus opening the door to two additional SC appointments.
Suppose that?
1
Suppose this:
The millions of Americans who did not bother to vote on 2016 see the God awful mess that is the Trump administration and wake to their civic duty to vote. They follow the advice of people who have been life-long Republicans, who are appalled by what Trump and his toadies are doing both at home and abroad and have advised people to vote for the Democrats.
They help to give control of Congress to the Democrats to put a check on Trump. Now, he is no longer able to impose tariffs on our allies without restraint. He is not able to fill the federal judiciary with right wing judges. We can stop wasting money on hearing about Hillary Clinton's e-mails.
You are clearly in the echo chamber. Did you see anywhere in my post that I hoped for any of that to occur?
How would you answer if that scenario occurred under a Democratic president? Our Constitution does not address the kind of stresses that are prevalent in third world dictatorships.
the thought of a "president pence" making the selection frightens me more than trump's potential choice.
4
They are both terrible; McConnell's rule: wait until the next election after the voters have spoken. They are speaking now in VA and in Queens, NY, and in PA.
This is an argument that at least conceivably might have a chance to sway Trump-wary R senators such as Collins, Flake, Murkowski, Corker or even Graham.
Reporters need to be asking them publicly every day: do you think the President should be able to appoint the judge who may be deciding his own case? Or in other words, do you think the President should have the power to place himself above the law?
Whatever these people believe, there's a decent chance they can be publicly shamed into saying no.
1
These points are quite valid, but Trump is going to do what he wants, and the Republicans are certainly not going to stand in his way.
1
I suspect that Trump will successfully install another Supreme Court justice prior to the fall elections. This person will surely be a dogmatic Christianist conservative hostile to both Roe v Wade and Obergefell v Hodges. We will witness the end of legal abortion and gay marriage in this country by 2020 at the very latest. That year, Trump will handily win reelection, because the Democratic party will still be infighting over whether it's proper to have ejected Trumpites from restaurants.
4
From your lips to God's ears. Unfortunately, as usual, libs/progressives are wrong. Roe v. Wade should be struck down in its entirety, however as an attorney, I am well aware of the fact, that at most, each isseue will be relegated to the States. This is the difference between originalists and justices who make up whatever they think is right. Every liberal state will enact these laws.
Our divide will become greater. People will move or relocate to States that share their values. The only problem with that is after the Dems/libs/progressives policies fail miserably (i.e. Seattle's head tax, San Francisco homeless, NY City soda tax etc.) many of these libs/progressives will seek to move to red states. At the red states they will once again try to destroy the successes of American principles of self-reliance, rugged individualism, capitalism and Judeo-Christian beliefs.
Really? A President under investigation by a Special Counsel shouldn't make a Supreme Court appointment? As I remember, President William Jefferson Clinton made two appointments while under such an investigation and no Progressive argued that he shouldn't. The hypocrisy of Progressives is stunning.
8
I have responded to this point already in several previous posts. Ginsburg was appointed before the Whitewater investigation, and Breyer was appointed right as it was beginning, at a time when there was no indication of criminal activity by the President while in office or during his campaign and no constitutional issues that were at that time foreseen to arise in the US Supreme Court. It is therefore a very different context.
3
Paul,
This response is not persuasive. While no one indeed could anticipate the spectacular turns of the Whitewater investigation, it's a little strange to suggest that no one could've foreseen presidential wrongdoing, in a special counsel's investigation of the President.
Not only would a finding of prior wrongdoing implicate various questions about the scope of impeachment, but it was entirely predictable that he investigative process itself would lead to questions regarding the President's immunity from process and indictment while in office.
Presumably your actual predicate is that Trump's alleged offenses are worse. If only these offenses had been reduced to specific and defined charges, this might be an accurate view. However, the word "alleged" would still be doing a lot of the work - too much work for your rather bespoke "rule" to have much purchase among those who don't already agree with you.
2
Ken Starr took 4 years to find something on Clinton & it wasn’t related to the original Whitewater. Now republicans want to seize all information, evidence, whatever & destroy it to end the Russian Interference investigation. What are they so afraid will be revealed? Why not let it drag out 4 years & see if he is innocent? A new supreme court justice will be able to sway the court trump’s way to stop all investigations into trump & government. But if he is ever toppled, the new ruler will have same privileges. Be careful playing with fires & laws.
1
President Trump has spoken lately about a "red wave" he expects in the midterm elections in November. Why not wait to name a nominee until the election strengthens his hand in the Senate, and he can work toward a 60-vote confirmation which would remove any cloud from this appointment?
Or maybe he's not so sure the American electorate really will want to give him his "red wave" absolution if they realize in time that the redness he predicts and craves has a Russian accent and provenance.
Tre Gowdy demands to know what Special Counsel Mueller "has" on Donald Trump. Maybe Mr. Mueller should comply by naming some crimes (emoluments violations, conspiracy, obstruction) he can prove now instead of getting further corroborations which is what he seems to be doing. Mueller appears to be running one of, if not the only, leak-proof shop in Washington. It would be a shame if the tight seal slipped a little in October.
3
A would-be strongman prez--more along the lines of what we expect of places like Hungary --has carved out lots of enemies for Americans to resent ( at least if they view Fox).
He belittles most of the free press that he cannot control as " fake". He belittled the needs for much of the judiciary system. He actively want to undermine the " liberal" values of our society. He praises authoritarian and brutal leaders, especially dictators of other lands.
Our democracy needs defenders to stand up to him.
8
When Trump is found guilty, shouldn’t all of his appointments and executive orders be overturned?
3
These are irregular circumstances, wherein a sitting president could be found guilty of a prior crime (perhaps money laundering?) or an impeachable offense like obstruction of justice. Certainly, being able to pick not one but two Supreme Court judges who will inevitably decide his fate if a Republican Congress refuses to hold him accountable is a perversion of justice and dangerous to democracy. Democrats can only do so much to prevent this outcome because American voters, in their wisdom, saw fit to give us one-party rule and continue to demand "loyalty to the president." Those voters are actually the ones who need to step up to defend the rule of law and our democracy.
1
I think Roe v Wade is as big a reason as any. Women's rights is not a lesser issue. And we all should hope for a female appointment to the SC
1
I agree. But right now my disillusionment with our Republic and political system is at an all time low.
I feel there is no honor and no decency with the Republican brand. And they would do anything to win and maintain control including destroying faith in the independence of the judicial system and in the truth and facts that the free press attempts to reveal. Just a cynical and miserable time to live in!
3
So true. The stubborn pigeons should come home to roost,, but not out of spite. This President should not choose anyone who would preside over his cases or those of his cohorts in near future, or ever really. Evey day another trick, more corruption. President Obama wanted to fill the seat with a good judge for all cases. We know Trump constantly to be seeking ways to cover possible improprieties, as he continues to honestly think tariffs will be good for US companies. The Dealmaker hasn't been successful except at covering his sins whenever possible. Don't think that because there are so many, that there are not more to be discovered, although I hope the investigation shows that he is only inept, not inept and crooked as well.
We want our country to do well! Why should we be gleeful if he fails? It will only hurt us, not him. I'm tired of dwelling on the con-man aspect, and would like to see our country unite and solve these problems which are internal, as well as the international relations. He seems to want business to stay in the US. But he has nobody to help him understand the potential regarding the tariffs.
He should NOT pick a judge until the investigation is finished.
1
Well, isn't this the president's plan anyway--to pack the court in his favor just in time for his own appearance before it?
2
One would think this would be true, but no way it's going to have any effect. Republicans don't care about Trump or what happens to him. They care about his draconian policies and making sure their agenda is put in place. They care about getting an ideologue on the court, and that is precisely why they want to get a new justice seated before Mueller finishes. It's why we saw that clown show over Hillary's emails yesterday. It's why Jordan and Gowdy are threatening Rosenstein with censure or impeachment; they need to "get something on him" so Trump can fire him and appoint someone who will fire Mueller. They want the investigation over and not for the right reasons.
4
Great argument, too bad the republicans, especially Mitch, have no trace of moral fibre. In any other western democracy the president would have been quickly removed from power by his own party.
13
What about the Times story yesterday about how Trump was nudging him out of office? According to the article, Kennedy's son Justin worked for Deutsche Bank and was involved in making a billion dollars in real estate loans to Trump. It feels like a very fishy connection given current investigations of Trump and the bank.
And McConnell spat on the presidency when during a State of the Union speech, a member of congress shouted out that President Obama was a liar, and there was never a comment from the speaker criticizing the profound disrespect. McConnell laid the groundwork for our present situation.
4
Of course this is true but asking the president or Republican congressional leadership to act using any form of ethical judgment is laughable.
8
I guess you haven't been watching the news. The republicans in the House excorciated the deputy attorney general yesterday.
In the republican view that is resoundingly endorsed by their base a handful of Democrats worked to keep Trump from being elected and then drummed up a phony investigation to harass Trump (the winner by a landslide once you subtract the 3 million illegal votes). It only makes sense, then, that they complete the circle by killing the investigation and putting their man on the Court to agree burying the scandal is 100% proper and legal.
3
Welcome to Trump's kleptocracy . Trump hotels and golf courses around the world ,his family worth hundreds of billions with the power of the government to crush anyone who dare defies his ruling family. Absolute power corrupts absolutely ,I thought we learned that lesson decades or centuries ago. Guess not.
14
Nominate Scott Pruitt.
He's already been confirmed by the Senate and he is still young enough to serve for a long time.
It doesn’t work that way…he still needs to be confirmed and appointed. To replace Roberts w/ a sitting USSC justice s/he would go though a new hearing and series of votes.
The only reason sessions is not being nominated is because he failed the first law of loyalty. Be loyal to the deity putting you in your job to protect him. It is scary to realize what trump thinks is the best, the brightest, the most qualified. How much have these nominees donated to trump or how much have they invested in trump properties? The new IRS guy owns shares in trump condos. No more audits for trump. Now get control of supreme court, no more investigations. New court with rule that trump is above all laws & the constitution.
1
Goodness. The disanalogies between blocking a constitutionally lame-duck president several months before a presidential election and blocking another president barely two years into his first term are legion. Even Schumer didn't believe it when he said it. Also, this fundamentally misunderstands the mechanics of impeachment, which take place in the Senate. The assumption has to be that there's a substantial chance that: (1) Trump gets impeached; (2) that somehow lands in the Supreme Court; and (3) that him picking X over someone else picking Y makes a material difference to the outcome. The chances of any of those happening are small and, in the aggregate, negligible.
3
This is the crux of the matter, even though tit for tat with the evil McConnell might be somewhat satisfying. The process requires trust by the people. There will be no trust for decades if history plays out that Trump chooses/demands the loyalty of the person who will surely stand in judgement of him.
1
There has never been a president not under a "cloud of investigation" for something or other.
3
Obama was never under investigation. Carter was never under investigation. "W" wasn't under investigation; however, Cheney and Scooter Libby were.
Trump thought that he could corrupt James Comey to succumb to his will “to let this Russia thing go” but found out that Comey was incorruptible, loyal to a “higher calling,”. Likewise, Trump and his cronies think that they can intimidate Rod Rosenstein by trying to harm his reputation but Rosenstein is an ethical public servant who appointed Robert Mueller, the nonpareil of Justice.
Because of Trump’s incestuous relationship with Russia, his total disdain for the Justice Department, his violations of the Emoluments Clause of the Constitution, as well as his aiding and abetting our enemies while harming our friends, Trump has proven himself a threat to our country.
His GOP collaborators imitate his aggressive bullying, his flagrant disregard of social proprieties, and a total void of logic or reason.
He lacks the moral fortitude to select a candidate for the SCOTUS let alone be president.
10
As if reasons matter. Both sides - both scheming, narcissistic, tunnel-visioned, treacherous and useless sides do whatever they can to win. Period. And, they both claim they don't but those other guys do, and when even they can't deny their behavior, they all say, well, they started it. Reasons. Please.
5
"They" did start it. No question about it. And the Democrats keep bringing a feather duster to a knife fight.
Perhaps some of these comment claimers that (paraphrasing here) '... the Supreme Court has not and can have no influence on an impeachment and or trail in the Senate, so we needn't worry about an obstructionist Trump appointment pertaining to or effecting his own case...' should perhaps, go back and remember or read the Court's decision that Nixon had to hand over the tapes that wound up implicating him. That he couldn't hide them or claim executive privilege. Where might we have been with less independent court and justices making that decision? ~ http://watergate.info/1974/07/24/supreme-court-orders-nixon-release-whit...
2
We had an honest Senator in charge of Watergate: Senator Sam Erwin. We saw an honest man, Archibald Cox, refuse to bend to Nixon and be fired. We are back there again; Democrats must step up and fight, using their public voices. Support Rosenstein and Mueller, a former Marine who served, unlike President Bone Spurs.
This sounds logical as well reasoned. And, that is its death knell.
1
As good a place as any for a trip down memory lane to review the nomination of Justice Breyer by President Clinton. AG Janet Reno appointed Special Counsel Robert Friske in January 1994 to investigate President Clinton and the matter then called "Whitewater." On May 17, 1994 (less than six months later) President Clinton nominated Justice Breyer for the Supreme Court. Just over 2 months later on July 29, 1994 that nomination was confirmed by the Senate. SC Friske was replaced by SC Ken Starr the next month in August or 1994. In this same year, Paula Jones filed a sexual harassment lawsuit against President Clinton which was dismissed by the court and appealed. While on Appeal President Clinton settled the lawsuit for $850,000 in November of 1998.
3
How many lawsuits has Trump settled? 25M to settle the class action suits against Trump U, 25M, let that sink in. How many contractors and investors did he bankrupt after declaring bankruptcy 5 times to avoid paying his debts? What happened to the Poles who worked on the Tower, who were then thrown out on the street with reduced pay and the threat "sue me" over contract violations? How many immigrants are now working at Mar-a-Lago, under threat of deportation if they ask for fair pay? How many foreign dignitaries are paying room rent at the Trump Hotel in D.C.? Emoluments Clause? You cannot clean up a man this compromised by links to Putin and Duterte, murderers and thieves. He was, and remains dirty. Go Mueller!
Yes, we wait until after the Nov. election. Fair is fair.
2
Let's hope that Spring's Eternal. LET'S give this one all the that we got.. The higher ground the higher road... believe in it and it shall come to pass... the truth.
1
Whoever the new justice will be, that individual should
(1) add reasonable conservatism and respect of tradition to the Court;
(2) ouweigh the voting block of four leftist radicals;
(3) change the religious composition of the Court from its current membership of 5 Roman Catholics, 3 Judaics, and 1 on a fence between Episcopalism and Roman Catholicism.
As much as you hate President Trump, he isn't even close to being accused, let alone charged with any crime.
Realistically some people don't want Trump putting another conservative on the Supreme Court.
2
If the appointment succeeds, the new justice should pledge to recuse him or herself from any decision relating to the Mueller investigation. This cannot be Trump's "get out of jail free" card. If he is shown to commit crimes, such as obstruction of justice and, for example, tries to pardon himself, the SCOTUS will undoubtedly have to rule on these matters. Trump will undoubtedly have a "loyalty test" for any candidate. This cannot be allowed to totally destroy our justice system. Trump doesn't care as long as he gets his way, but the nation will suffer tremendously.
10
"True, that point is unlikely to stop Mr. McConnell or his colleagues."
This critical caveat, offered by the author almost as an afterthought, is the most important point. Unless you have an answer to this deeper and more troubling problem, i.e. Americans' immunity to facts and arguments, you're not adding anything to the discussion.
1
Democrats have another tool, if they dare.
They could make it clear now that they will remove by impeachment a Justice foisted on us by perversions of the rules. They could include Gorsuch in that commitment.
In preparation for that, they could do to them what they've done to investigate Trump. These candidates came from somewhere, from right wing organizations that helped them, and to which they've made secretive commitments at which we've just winked so far.
They want to fight? Let's fight.
18
This time I could not possibly agree more with Mark.
Impeachment may occur for actions taken while in office. But it is not unheard of for impeachment to be initiated for actions taken prior to assuming office that may be prejudicial to the office-holders' capacity to credibly perform (e.g., false witness before a grand jury) their duties.
A federal judge may be impeached by the president, a special prosecutor, a state or territorial legislature, or a grand jury. The resolution is referred to the House Committee on the Judiciary which could well be in Democratic hands by January 2019. The legislatures of Washington, Oregon, California, Hawaii, Colorado and New Mexico may have an abiding and perhaps recurring interest in this.
Pushing a Trump SCOTUS nominee through confirmation before the Mueller investigation is complete is a declaration of war on the rule of law in the United States. The president gets to select the jurists who will rule on the details/procedure of a likely criminal indictment against him? I don't think so.
Trump and McConnell are going to try...and we should let them know that there will be a judicial target on the backs of the new justice, Gorsuch, Thomas and Alito if they succeed.
If there are any smart senators in the GOP they will head off this confrontation because the people have had enough of this political malpractice.
5
People are commenting that we will find ourselves in a constitutional crisis. We have been in one for some time already. It's been building for years but the Fort Sumter moment was when McConnell refused even to hold hearings for Garland.
8
Yes! Or, is there any precedent or statute that would require his judicial appointees (including Neil Gorsuch) to recuse themselves from deciding a case involving the President who appointed them?
1
Why is it that every liberal screams the sky is falling the moment a conservator takes office? Nothing has been over turned. Let's not forget the Roe v Wade decision was rendered in1973. It has survived over over 40 years of protest and changes in the sitting justices of the court.
3
Because Trump said in the debates this is what will happen. It's not sky is falling, it's reality.
2
Trump said that he talks with Putin most days during the week, so has Putin taught Trump how to do kompromat?
Will Trump use kompromat when nominating a candadite
for the Supreme Court?
Surely Trump should not have anything to do with nominating
a Supreme Court person - as he is under a serious criminal investigation with obstruction of justice, and conspiracy with Russia to interfere with the 2016 election.
6
Except, Mr. Berman, that you are forgetting the Rule in Clinton's Case: President Bill Clinton picked Justice Stephen Breyer on May 17, 1994, while President Clinton was under investigation by the Special Counsel in the Whitewater investigation. Indeed, I believe that the Special Counsel's subpoena to the Clintons was outstanding at the time of the nomination.
So, in keeping with the usual rules of legal consistency, I assume that you would agree that Justice Breyer is disqualified from the Court. #sarcasm
4
Some commenters here argue that the precedent set by Congress to delay the appointment of a Justice would be foolishness because - those arguments aver that - [1] Somehow the 9 month delay in even bringing the Garland appointment to the floor was somehow "special", and [2] Any presidency could be brought under a "cloud" by charges of wrongdoing.
As to [1], there was nothing "special" about it, except that McConnell chose to use his exceptional power toward clearly partisan ends, and it was "special" because it broke with over 200 years of established constitutional protocol and procedure. In a word, it was grotesque.
As to [2], like it or not, the current presidency is indeed a "special" case. He brought his "cloud" with him deliberately, with ample advance warning that he intended to disassemble - by *any* means - 70 years of American exceptionalism, from trade to alliances to nepotism to environmentalism to protectionism... and so on, almost endlessly.
If a string of future Trumps seems inevitable, then the argument of "bringing charges" frivolously is moot.
2
Mr. Berman - your impeccable argument suits the classroom well but, as I read elsewhere this morning, we are not presently privileged to live in "la la land", we dwell in "Trump world". Trump (and the GOP) would, with irresistible legal force and power, laugh you out of the courtroom. Please advise us on what is really possible in these times.
2
Simple. Any judge, including SCOTUS, nominated and appointed during the President's s current term will recuse him/her/self from any case involving the President and the investigation into Russian interference in US elections, including such issues, but not limited to, the President's use of the pardon power for himself, submitting to a subpoena from the Special Counsel, or interfering with, or impeding the investigation in any way.
4
I believe that Congress should be required to address certain business with relative urgency, such that all federal appointments must expeditiously voted on if not filibustered. Merrick Garland would have gotten a vote, but he would not have been confirmed.
On the other hand, the notion that a special counsel investigation of indefinite length should prevent the President from appointing anyone for who knows how long, that's silly. The unspoken assumption is that Robert Mueller will issue his report in the coming months or so, but he could still be prosecuting corrupt associates until Donald Trump has competed two terms and built a library--God knows that Trump has enough sketchy friends. If you think nominations should be held off that long, we'll be down to six or seven Supreme Court Justices, and short a ton of other judgeships.
1
Just one point about the number of justices. The Constitution offers absolutely no stipulation about how many justices serve on the Supreme Court. Filling this vacancy is definitely not an urgent matter as compared to the proper and fair handling of the current investigation of the president.
4
What about Neil Gorsuch, who was appointed by Trump? Who knows what litmus test questions Trump asked him or what commitments he made. Is there some way he and Mike Lee could be made to agree to recuse themselves from litigation involving Trump or the Russian investigation?
2
I don't think the Supreme Court has any say about impeachment.
The House decides if the president has committed an impeachable offense.
As Jerry Ford [when GOP House leader] remarked when he tried to have Justice Douglas impeached for marrying a much younger woman
"An impeachable offense is what ever the House decides it is."
Although the chief Justice presides over a Senate trial [after an impeachment by the House] the chief Justice has no say as to whether the actions of the president warrant impeachment.
3
Berman correctly concludes that there should be no confirmation prior to the November elections. But whether that occurs or not, Trump's new appointee and Justice Gorsuch should both consider recusing themselves from hearing any cases stemming from the Mueller investigation. Though existing judicial guidelines might not require recusals, the extreme divisions in this country, coupled with ample evidence that Congress has abandoned its responsibilities to act as a co-equal branch of government, has opened a clear path to the demise of our democracy in favor of an autocracy or a too powerful roll for the executive branch. Our system of checks and balances been severely abused by Executive Branch liberties uncensured by Congress. In addition, the majority controlled Senate has arbitrarily abandoned long standing rules for the SCOTUS nominee confirmation process. The result is that SCOTUS is the only "check" on executive power remaining; this places SCOTUS under extreme scrutiny in he matter of bias which, in the current context where the President himself could be implicated in wrong-doing, could only be avoided by recusals by Trump appointees. This may be an unprecedented step but the Chief Justice and Associate Justices must recognize that the vast majority of the Americans believe that no one is above the law; thus, SCOTUS' credibility needs to be kept at the highest level because the other two branches have squandered theirs domestically and internationally.
4
There is no way that the "knotty constitutional questions" can be dismissed. However, so many questions have arisen during this short presidency one must ask the questions relative to the Supreme Court and the power the Court is able to exert.
Supreme Court tenancies are life-long. In that context, should not the time of whom is allowed to sit upon that seat be subject to more than the allowed process decision of one political person, but debated and perhaps the process codified after appropriate study.
Senator McConnel, alone, should not have the power. The passing or retirement of a Supreme Court Justice is not predictable and does not always occur on schedule with voting.
It now feels like a different type of division from during the Viet Nam War is happening; it is a division, nevertheless, and almost as intense.
Trump seems to thrive on division.
5
"This is surely a valid argument, not least because Mr. McConnell’s blatantly anti-democratic ploy stole a judicial appointment from a popularly elected president and gave it to one who lost the popular vote by millions."
This is the argument of a professor at GW Law School - really? Please, Mr. Berman, show us those parts of the Constitution which talks about "theft" of a federal judge nomination or how the President of the United States is elected by popular vote.
"But there is another reason to withhold confirmation that both Republicans and Democrats should be able to agree on: People under the cloud of investigation do not get to pick the judges who may preside over their cases."
Don't hold your breath. Please show us where that is either written as law or has been submitted as a bill in Congress. If Trump nominated a liberal justice, you wouldn't object at all. If Hillary was president and the same scenario existed, you wouldn't object to her nominating a justice to the bench.
Kennedy, a conservative judge, was nominated by Reagan and happened to be the swing vote in many important decisions over the years. Who's to say that Trump's nominee wouldn't act in the same manner once confirmed?
2
Because a specific action is not "talked about" in the Constitution, does not mean its constitutionality cannot be subjected to review by SCOTUS, as long as the challenger has standing and otherwise properly causes the matter to be brought before the Court.
Likewise because a specific action or rule is not written as law (whether or not it has been submitted to a legislative body like Congress), does not mean it cannot be adopted as law by a court.
Law libraries are rife with published decisions where neither suggested requirement has been met.
That Professor Berman would not object to PT's nomination of a liberal is an unsupported assertion and, more important, has nothing to do with either of the bases he sets forth for opposing Senate action prior to the November elections.
That the professor would also not object to the Senate's pre-midterm election consideration of a nomination to the Court by F Secy Clinton - "and the same scenario existed" - is also unsupported; and also has nothing to do with the bases he sets forth.
In fairness to the commenter, however, if he did not object and the same scenario existed, it would create a question as to the genuineness his belief in the bases he has set forth.
2
"Who's to say that Trump's nominee wouldn't act in the same manner once confirmed?"
I dunno, maybe Justice Gorsuch?
The best approach to this might be to ask Trump supporters, the working class people who got him elected and who love him, to ask Trump to stand for them and pick a Supreme Court Justice, who is not a corporation lover like Kennedy and Gorsuch, but someone who will have the back of the working man when cases come before the court.
1
Is this a serious proposal, or satiric?
How can a president who is under criminal investigation select a Supreme Court Justice who could be the deciding vote in his case? Clear case of conflict of interest.
17
The main concern that the Democrats have for not wanting President Trump appointing a Supreme Court justice is that they are afraid that many of the liberal bills that passed previously will be overturned. They are so fearful that Roe v Wade and the gay marriage bill will disappear and be no more. They are using any lame excuse to say that Mr. Trump has no right appointing Justice Kennedy's replacement because it is an election year and it is premature to do so before the results are in. Now the latest objection is because of the Russian collusion investigation that has been ongoing for over a year with no end in sight. If this was the reason for allowing Mr. Trump's being denied his justified appointment, he would never be able to perform this very important task. Even if the investigation ended tomorrow, they would find a new excuse to deny him his appointment. This is so laughable and ridiculous and not to be believed.
The chances are slim that either bill would be eliminated but abortion rights might see some restrictions occur or be turned over to the individual states to decide its fate. They have already made some changes in various states and are looking to include more. This is something President Trump spoke about during his campaign. There are people who want some changes to the abortion laws and the reason for their support of President Trump.
Mr. Trump must be allowed to choose the next justice and it is his presidential right. Let him do his job.
2
Just curious, WPLMMT, did you also insist that Mr. Obama be allowed to choose the next justice, that it was his presidential right? Because Mr. Obama had nearly a year left in his term and never before in the history of this country had a president been denied the right to seat a highly qualified jurist.
And as this writer says, regardless of the settled law that this activist Supreme Court looks to overturn, there is an unacceptable conflict of interest in the president choosing the judge who may very well adjudicate his own case.
11
When this country began there was honor and ethics in play something that is missing in government and elsewhere today. Mr. McConnell had no ethical right to block the nomination of Merrick Garland for SCOTUS. Further President Trump has politicized the Supreme Court. Vice President Pence stated that Roe v Wade would be overturned in 5 or 10 years, it is a long-term goal and it has been stated. Why are you so concerned about the length of the Mueller investigation? You should be concerned that he gets the facts, deeply concerned. Not to mention all the republican driven investigations into White Water, Bengahzi etc., some that went on for years and with far less at stake and at a tremendous cost to taxpayers. You argument doesn’t hold water. A president whom pardons people based entirely on politics should not be choosing a SCOTUS of the US.
4
Mr. Obama should have been allowed to choose the next justice during his term and it was his presidential right. McConnell and the GOP refused to let him do his job, consistent with law and precedent.
The hypocrisy of the Right (an unholy union of the ignorant, racists, fascists and malicious) in these United States today is revolting. The rest of the world is looking at us and discounting our brand so fast you can't see the counter spinning.
No SCOTUS justice appointed in these circumstances will survive a multi-plaintiff state-legislature-driven impeachment campaign; yes, state legislatures can initiate impeachment proceeding against a federal judge and the House of Representatives must consider them.
The people are coming for you.
So let's say Murkowski or Collins or whoever magically decides to throw away their career and vote against a Trump nominee, or join with Democrats to reintroduce the judicial filibuster. What comes next? Keeping a court seat empty for a few months is a lot different from keeping it empty for two and a half years, and it's extremely likely that we're really looking at six and a half years. Since Trump plans to make himself president for life, six and a half is probably too optimistic. So even if Democrats accomplished the extremely unlikely (I would say mathematically impossible) goal of winning the Senate, they'd have to let Trump pick a justice eventually. No matter what that justice tells us, they're going to be more right-wing than Scalia. They'll lie, they'll tell the senate whatever they want to hear, they could tell us that they want to outlaw guns and overturn every anti-abortion law in every state, in the end they'll just do whatever it takes to get confirmed. There's no possible outcome that could benefit the Democrats in any way. In the end I believe they'll be forced to move to the right and become what Republicans used to be, just like they did under Clinton. As for genuine progressives, they haven't had any power in America since the time of FDR. They only had power under FDR because they teamed up with the hyper-conservative white supremacist Southern Democrats. Ironically, it was the Civil Rights Act that began our decline into backward, medieval feudalism.
Things can change. Sometimes it's darkest before the dawn.
So let me get this straight...Trump has been claiming that Mueller's team is conflicted because not all of them are Republicans loyal to him (which would be a clear conflict), but he is racing to seat another judge on the very court that will consider his fate?
8
I like this argument. I hope Collins and Murkowski are surrounded by equally persuasive arguments.
8
There is no way Trump will not nominate someone, and there is no way Republicans will vote against his nominee. Maybe not the first one, but a Trump appointee will be seated in time for the next term.
8
The best argument against confirmation I've heard. Thank you Professor Berman.
I hope that your argument will gain traction.
37
Don’t count on it. Logic and truth are not Republican strong suits.
1
One should ask the nominees whether they will recuse themselves if a matter related to the on-going Muller investigation is raised at the Supreme Court.
This is a no-brainer and the correct answer is Yes, I will.
20
True, though lying in confirmation hearings is not novel. Though they wouldn't call it lying, of course.
3
How come you aren't asking whether RBG, who publicly made anti-Trump comments, would recuse herself?
Somebody needs to explain ... no, declare ... to "Emperor Donald" that we US txpayers provide the money that pays his salary.
In plain terms, HE WORKS FOR US, and not the other way around.
As is so cogently stated in the Declaration of Independence,
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
If he thinks for one minute that he is above the law, or that he has a "get out of jail free" card, he is sadly mistaken.
No person is above the law.
No person gets to be the judge in his or her own case.
Mr. Berman makes an excellent point that any Justice, including Neil Gorsuch, who has been nominated by "Emperor Donald" needs to be cautious that there is no bias (for or against) "Emperor Donald" should a case or controversy involving him come before the Supreme Court.
"Emperor Donald" should not get another Justice seated on the Supreme Court now.
28
You make valid points, but exclude the main problem. We are on a Cold Civil War. Logical arguments will not stop him from continuing to expand his powers, incrementally for now, and by force if necessary later. We have to wake up and start viewing him as who he really is, and that is, the number one enemy of our United States.
34
Work for us, is what the left has worked so sure to avoid, responsibility. Andrew Jackson ran as the representative of the people, and elites hated it. Tried two coups.but then he burned both parties to the ground so the new generation could start with a clean sheet.TJ said Every generation needs a revolution.Term limit everything. T will do this.
He doesn't take a salary!
Roe v. Wade is a red herring.
If Trump can get the media, Democrats, and Republicans to spend their energy focused on this question, he can hope that the country will be too distracted to talk about the critical questions Berman has raised here.
This is really what will change our future.
48
Of course it is a very good reason to delay the appointment, but it's even less likely to happen than the "But it's an election year" gambit, so I'm not sure I see the point.
7
whistling in the graveyard, Mr. Berman. too late. the millenials need to vote and CHANGE the vote (not for the replacement justice but the next justice after that). a socialist or social justice-centric agenda is not going to carry the day. better grapple with those who carried the day for the opposition in '16 (other than the Russians).
6
I hope you are referring to the establishment Dems who rigged the gig for Hillary Clinton when talking about "those who carried the day". Credible observers say Sanders would have beaten Trump and soundly. Hope you have noticed that Americans are sick of both establishment Dems and GOP candidates. Nobody is in mood for more of the same. Obama supporters from 2008 and '16 will flock back to Dem Party if there is a candidate worth supporting.
1
Thank you! Finally! while Roe vs Wade is important for women's rights we have bigger problems: Preventing the US from slipping into autocracy. We need to stop running after distracting shiny things.
35
I disagree we have "bigger problems" than women's equality, for which reproductive rights are necessary. We are more than half the population, but apparently we never get to stop reminding people that we count too - as full people.
36
The problem I think is that many people only see "distracting shiny things."
And often they cannot be reasoned with. My MidWestern religious sister, who is "thrilled" with everything Donald does, is a case in point. She does not react to a request for reasoned dialog. Donald is a Republican and a 'Christian'... and that is all she needs to know.
I have given up. On her. And on what I thought the USA was. I now know we are much more fragile and susceptible.
1
I am looking forward to a supreme court where the opinions of the left wing judges does not prevail. I simply do not respect the onions of Sotomayor's outrageous dissent in the Travel Ban ruling.
Gorsuch was a great appointment and I look forward to seeing another justice like him on the SC.
My favorite justice is Alito and we need more like him on the court. Trump said he will announce his choice on July 9 - I hope it is not a woman. I prefer a man on the SC.
11
Yes men are So much better as leaders than women. The state of the world, rules for centuries by men, is absolute proof.
1
Gorsuch is a yes man. Stolen Supreme Court Seat. McConnell and the Republicans boycotted their duty to Advise and Consent while President Obama had the right to nominate Justice Garland, and are now McConnell is eager to Advise and Consent on the vacant seat.
Most Reprehensible.
1
"I hope it is not a woman. I prefer a man on the SC."
Wow. Rarely do you see someone openly admitting to being sexist. Usually there is at least some pretense attempted. Regardless, your comments miss the point of the article - why should someone under investigation be allowed to select their own judge? Also, what specifically do you object to in Sotomayor's dissent? I agreed with most of her arguments.
2
By similar reasoning one might also question whether it is appropriate for this President, who has shown little regard for the independence of the judicial or the prosecutorial process, or for the rule of law in general, to nominate any judges, or any U.S. Attorneys for that matter. Refusing to act on poorly chosen nominees is one of many things Congress could to which is short of impeachment. Ideally this could lead to the nomination of qualified candidates who are acceptable to a broad range of senators.
15
There is absolutely no point in arguing what Trump or the GOP “should” do. They have no ethics and will do exactly whatever is needed to win election, Garner vast donations, and stay in power. Why even bother making reasoned arguments when there aren’t enough reasonable people in the government to heed them?
54
Another way to address this might be to have all Trump nominees recuse from consideration of any cases where he is the defendant.
47
Rosenstein is a witness in an investigation based upon his finding Comey should be fired, and is also leading that investigation. And you have the temerity to even type "recuse"?
1
Don't hold your breath until that happens.
I agree that McConnell delay re Gorsuch was inappropriate but even if he had agreed to hearings does anyone think that any Obama nominee ( Gorsuch or others) would have received the 12 Republican votes needed at the time to break a filibuster? My guess is no.
2
You mean Merrick Garland.
James
Doesn't matter. Not one bit.
Mr. Berman's argument makes sense to me and many others. I fear, however, that it is in vain. Everything is becoming a partisan issue, and anyone not predisposed to seeing sense in Mr. Berman's words will continue scoffing.
10
I agree with your logic and reasoning. It seems you have the people's welfare as a priority, which appeals to me.
Your cited three good reasons: (1) the Biden-McConnell delay reason, (2)withholding the appointment powers of the President until he has been cleared of complicity in foreign power meddling in the 2016 election, or the wait until the Special Counsel investigation is completed, (3)strengthen the separation of powers provision of the Constitution by assuring the Supreme Court is dedicated to the rule of law vice political affiliation and thereby create a lawmaking process that offers equal protection under the law for all citizens.
Using one or all of the reasons to delay consideration of a replacement for Justice Kennedy would achieve the desirable protection against autocratic lawless rule.
Autocratic rule can be a threat to the blessings of the U.S. experiment, which we can anticipate will be severely challenged over the next generation or two because we must adapt to the shift from fossil energy that we must make to an economy that operates on a different energy form, probably electric power created with solar cells in space beaming to grids on Earth. Clearly, a challenge for civilization.
It also seems to me that the Trump-GOP government reform program would benefit from waiting for the results of the Special Counsel's investigation. It could vindicate the President's claim that there was "no collusion" and, also, give validity to their reforms.
21
If you thought the Women's March was big, you ain't seen nothin' yet if Trump appoints somebody who will overturn Roe vs. Wade. The majority of Americans favor abortion rights and not too many women want some old men on the Supreme Court telling them what they can and cannot do to their bodies. The marches will be so huge that Washington DC will think an earthquake hit.
101
But as long as Right to Lifers sway the ballot boxes in their own conservative gerrymandered districts the size of the protests won’t matter in the least. The huge liberal urban populations can march but unless Republican women in the Midwest and South march it won’t matter. The best thing really would be to boycot any company that advertises on Fox. The left leaning urban populations wield more purchasing economic clout than the rural conservatives. And if advertisers pull up stakes Fox will have to change its tune and become more truthful and balanced. Look how fast O’Reilly fell when his add revenue dried up.
The majority also supported slavery at one time, doesn't make it morally right.
Does Prof. Berman really think that at this point the caveat of legitimacy in a Justice's appointment would matter much to Republicans? At this point the dominant ethos is one version or other of the following: "the means justify the ends;" good deals require hard (even unscrupulous) play; and much anything is fair game in a state of "war" (or crusade) which is how the current domestic situation is viewed by Trump's party. Prof. Berman's admonition is valid, but it carries little weight in the current regime. Things have gone very far now in the political culture of this country, even among citizens and not just politicians in the swamp.
21
Excellent try, but Democrats are not going to be able to block Trump’s next Supreme Court pick and cannot afford to waste any time trying. They should instead focus on preparing for the next two national elections so they can regain the Presidency and the Congress while Ruth Bader Ginsburg and Stephen Breyer are still in good health.
29
And tomorrow you could get another law professor to write an opinion piece on why Trump should go ahead and nominate someone.
There's nothing sacred about the law and it means many different things to different people. At a certain level of conduct, it takes a backseat to political considerations and Trump and Republicans will do everything that isn't obviously illegal to expand their power.
I'm sure Democrats would do the same thing, at least in the wake of what's been done by Republicans before.
7
Trump and now Republicans who support Trump have no qualms about doing things that are OBVIOUSLY illegal as well. This guy's entire presidency is "illegal" like conflicts of interest, emoluments clause, tax returns, election tampering, just to name a few.
1
What happens to Trump's appointments when it's discovered that he laundered money for Russia, that he sits in the White House with Putin's help, that he obstructs justice? Trump is in the White House to sow division and hate in the United States and to disrupt the European Union and NATO. He even said Canada is a security threat to the United States! He mocks our friends and flatters our enemies. It's clear Trump intends to continuously cause chaos. Why? To tear this country apart. Who benefits from an angry, disrupted US? Putin, that's who. If Trump appoints more judges, including more Supreme Court justices, that's one more win for Russia.
94
Absolutely NONE of the considerations outlined will concern Donald Trump.
Donald Trump will do whatever it takes to save himself from any consequences of his actions.
Period.
End of Story.
28
It seems Trump's main intent is to stack the court in his favor against personal prosecution post the Mueller findings. Although rich people like rockets, this isn't rocket science.
17
Following this logic, neither Ruth Bader Ginsburg’s nor Stephen Breyer’s nominations would have been fairly considered for the US. Supreme Court either. The better approach here is for people to vote with a critical eye towards these matters. Conservative voters tend to be extraordinarily disciplined in voting in a way to effect these sort of changes in our society; progressives/liberals are all too happy to cast their votes in a symbolic protest and then decry the success conservatives have at implementing policies they care about. In short, don’t boo or whine, vote.
20
Actually, Ginsburg's nomination preceded the Whitewater investigation, and Breyer's was only just as Robert Fiske's investigation began, when there was no suggestion of presidential criminality or potential constitutional issues connected to a criminal investigation of the president.
1
Liberals are great at splitting their vote and whining they didn't get anything they wanted at all in the end. (I'm liberal and disgusted they let this happen.)
I think they are still upset that their vote for Hillary didn't count.
The rule of law is no longer working in America.
Partisan congressman are free to verbally batter lawmakers who are investigating Russian interference in our elections--which most people outside of the Trump orbit agree definitely happened--and try to shut down an actually useful investigation after supporting a totally useless one that accomplished nothing for years because..it was against Hillary Clinton, and not Donald Trump.
Partisan senators are free to NOT consider a sitting president's nominee, wait until a member of their party (sort of) is elected, and THEN nominate a judge whose views represent the far right wing of the judiciary.
And so on.
So Mitch McConnell, Paul Ryan, Jim Jordan and Trey Gowdy have basically undermined my faith in democracy working in any way, shape or form other than the those they choose for us all behind closed doors or at the command of our feckless POTUS.
44
Very much enjoyed this insight. Thank you Prof. Berman.
14
Unfortunately you are "The Choir".
When it comes time (and it will definitely come, mark my words) for the appointment, the vote and the very real reality of a Far Right judge on the bench within a year, remember back on this time when you gained a little insight. A bit of knowledge. It was all so quaint and informative. And it didn't make a bit of difference.
3
Ignatius has it spot on. This train has so much already left the station. Legitimacy is a really hard argument to make. It will not take a lot to make the balance 6-3 either. Unless the Dems can somehow come up with a miracle in November (with no real standard bearer to speak of), 4 more years and such a SCOTUS majority are not out of the question.
I don't feel bad at all about being a member of this "choir". I am so disheartened, I can only hope that the more insight the better so that this choir reaches the fevered pitch in numbers that can possibly drown out the brutish encumbrance to our democracy known as Trump's choir.
Ultimately, it comes down to a question of which critiques have enough traction to sway the views of a handful of Republican senators who retain the temerity to think for themselves to at least a minimal degree. Assuming Trump's nominee is seen as a reliable vote to overturn Roe v. Wade, there are two Republican women senators who could be receptive to a powerful push by activist women to hold the line on reproductive rights.
Professor Berman's argument, on the other hand, is too abstract to have much political impact. Pure legal principle has repeatedly been shown to be ineffective in itself to sway Republican senators. His argument could become persuasive in the context of a need to contain a malignant Russian adversary who is successfully manipulating Trump to the detriment of national security. If that connection can be established, it could feasibly appeal to a military hawk like Lindsey Graham who might then muster the courage to oppose Trump's nominee because he felt national security to be threatened. But since the sins of Trump would not automatically become the sins of his nominee, the probability of Berman's argument actually proving effective seems slim.
So, absent a total collapse of Trump's political support, any hope of defeating his Court nominee in the Senate only becomes realistic on the basis of massive and angry opposition by women who descend by the thousands on Washington DC during the confirmation hearings. Everything else becomes window dressing.
8
This is an argument that I would hope could sway Sens. Flake, Corker and McCain. But I see two problems. First, if asked during confirmation hearings, an appointee in Trump's pocket could easily lie and say that they would curtail executive overreach. Given that these senators all want a fifth conservative justice, I'd be surprised if they weren't assuaged by such a promise.
Second, that only matters until January (or possibly a bit longer for Sen. McCain). The next Senate will likely still have a Republican majority, but without these outspoken senators. Sens. Merkowski and Collins might object to a justice on policy grounds, but neither of them have been outspoken critics of the president's abuse of power.
Another consideration for Republican senators is the chaos that would come from a 4-4 decision on something like the president's authority to pardon himself. I'd personally rather see chaos than a severe miscarriage of justice, but I don't know that many Republlican senators share my sentiments. If they can't have law and order, they might settle for just order.
6
This is the culmination of the nightmare we've all been living in for the past year and a half. Our hope at this point is that the business community will step in and get him removed. The GOP is totally beholden to their money anyway.
As soon as there is a Democratic president and majority, they had better get to work undoing the damage, starting with increasing the numbers of Supreme Court justices to 11.
31
That sounds like an excellent plan. To go backwards.
Why wait, go ahead and expand the number of justices now.
Party in the USA !!!
That sounds like an academically interesting argument. Don't count on it to gain even the slightest bit of traction with the republican senate however. Perhaps it is more relevant to some future point of view looking back retrospectively amid the ruins of American democracy.
28
The essay assumes a level of integrity completely missing from most of the Republicans in the Senate - led by Mitch McConnell, a man who laughs at the word integrity.
They will jam a nominee through - ability, care for the Constitution, background and of course integrity will all take a back seat to loyalty to Donald Trump. Period.
35
There are a number of reasons why Kennedy's replacement should be delayed and why Gorsuch should never have been seated. But it is in fact not possible to delay Kennedy's replacement. There is no procedural or political means by which this could occur. Republican senators may disagree with one or another on various details of legislation, but they do not consider it their job to review, vet or oppose a Republican president's appointments to the cabinet or the courts. They have abdicated this responsibility, leaving the matter entirely up to the president. It does not matter what their individual positions might be on the first or second amendment or on the rights of states to govern themselves without federal interference. If the president wishes to impose his will on all states and nullify our federal system and our republic, present-day congressional doctrine holds that it is not their role to prevent this. The legislature's sole domain is the writing of federal law, which is obsolete. The president has unlimited power and is not bound by law or subject to any legal authority. The great American exodus has begun, starting with iconic American businesses who are being forced to move to countries where they can afford to operate, where the population can afford to buy their products, and where the rights of businesses and individuals are respected. The departure of the wealthy and educated has begun and will escalate shortly.
15
Wouldn't Trump's appointee have to recuse himself if a case comes up involving Trump?
17
No. An SC Justice makes those decisions for him/herself, no one else, including other Justices could make that decision.
1
Who's gonna make them do it?
There was no mechanism for making Congress do it's job of voting on Obama's pick for Supreme Court. They just refused to do it, and the seat stayed empty until Trump picked Gorsuch.
So what is the mechanism for making a Supreme Court judge recuse himself if he flat out refuses to do so?
Good one. If a majority of the House votes to impeach Trump, the Chief Justice will preside over the trial that will be conducted in the Senate. There will be no involvement of any of the other justices.
If Trump is convicted By a vote of 2/3rdsof the Senate, they get to remove him from office, which means he no longer has the ability to pardon himself.
If he pardons his friends and family, it would likely result in impeachment and his replacement with Trump. If he pardons himself on his way out of office in 2021 or 2025, who cares?
6
Dream on...
14
All the questions raised in this article are good fodder for the loyalty test Trump will likely administer for the nominees he will be interviewing for the job. I won't hold my breath that Trump will choose any one that does not pass pledge loyalty to him.
16
Maybe that's our out--he won't be able to find someone willing the pledge the slavish level of loyalty he craves.
Professor Berman makes perfectly valid points. The problem is we're living in an Orwellian nightmare, in which reasonable Americans should have legitimate concerns about where their president's loyalties lie. His recent demand for Putin's Russia to be restored unconditionally to the G7/G8, despite abundant evidence of Russian interference in Western elections, among many other offenses, is just the latest proof.
56
Trump appointed Jeff Sessions as the United States Attorney General. He was incensed when Sessions, following Justice Department guidelines, recused himself from the Mueller investigation. If he had known Sessions was going to take this action, the President has stated, he would never have appointed him to the position. It is likely that Trump's expectation of loyalty would extend to any Supreme Court nominee he chooses. Would such loyalty be forthcoming? In these strange times, the usual answer to this type of question, a definitive no, cannot be taken for granted. While those opposed to Trump's nominees may have little power to derail an eventual confirmation they could at least extract a promise from any potential future justice to recuse themselves in any matter coming before the Court that involves the current president of the United States.
23
If we had a president, and congress, that were truly operating in the nation's best interests, they would let the investigation come to a conclusion, and then appoint a supreme court justice. If the president didn't have anything to hide, he would see this as a way of uniting this incredibly splintered country, and proving that he is indeed an honest broker, or at least, more of an honest broker.
The level of hypocrisy on the right is just astounding. This is a stolen seat, and they know it like they know their name. What I think, or the majority of the county thinks, is of little concern.
Time to take it to the streets.
20
Justice Kennedy could not possibly have been unaware of the implications of his retirement at this time vis-a-vis President Trump’s legal problems.
This will be a stain on his legacy.
60
Yes. Mullers report is expected in September and the timing is indeed telling. A huge disappointment from a Justice who showed himself to be an independent thinker, even while I disagreed with many of his decisions. One can't help wonder, why didn't he wait for the report ...
4
I agree. Unless he has some undisclosed health problem, good grief what conceivable reason could he have for not at least waiting till the midterms?
1
Perhaps he is ill; that would be the only excuse I could accept for Kennedy retiring now. Otherwise he is allowing something reprehensible to take place, and he has to aware.
I have had a foreboding feeling that this whole Trump experiment in insanity would not end well for any of us. Now we are beginning to see a glimpse of how this will all play out.
Trump will pardon himself and his co-conspirators the republicans will do less than nothing and country will devolve into a constitutional crisis that may take a generation or longer too resolve.
I could be wrong about the republicans but I encourage anyone who has evidence to the contrary to please point it out. Buckle up my friends this is about to get much much worse.
17
Trump has no ethics and no respect for a government based upon the consent of the governed. He is in rational eyes, a man who only cares about what serves himself not the people who he has taken an oath to serve according to the laws of the land. The Republicans controlling both houses of the Congress are indifferent to his lack of respect for our laws and his lack of integrity because he is their man in the White House. He wants to name a justice likely to rule in his favor if he faces legal problems. The Congress could not care less whatever high crimes and misdemeanors he might commit, so they would not want a justice likely to rule against Trump in any cases before the Court.
19
And your comment, Casual Observer, is only one of the many (but a very GOOD one) as to why ALL these criminals need to be removed from their offices on the multiple grounds of high crimes, misdemeanors, lack of integrity, and no respect/adherence for/to the laws of this nation. And I suspect that this all boils down to TREASON.
1
I heard Mitch make the argument last night that Democrats are wrong about the "McConnell Rule" because it applies only to lame-duck presidents just before an election and not to a first-term prez like Drumpf. So I guess that option is no longer viable.
4
But I'm willng to bet, that if this had been a "lame duck presidential" election year, he would find some other reason to reject the Dems invoking the so-called "McConnell Rule." For the unctious McConnell, there is no shame, no sense of hypocracy. They are all rotting apples fallling from the same tree...
What nonsense. People need to get hold of themselves. SC justices are appointed for life. Once they're in, why would they care who put them there or about anything other than their interpretation of the Constitution? That is why their votes often surprise (Roberts and Obamacare for example). The only difference between the justices is to what extent they view the Constitution as an evolving document and their inclination to make policy. Conservative justices won't stop an impeachment if it's legitimate and liberal justices won't allow it if it isn't.
10
Ha, ha, ha. Are you paying ANY attention to what's happening?
11
It depends. Many judges won't. But I suspected that Trump will try to pick a Justice who will "protect" him. He "made a mistake" with Sessions and will try his hardest not to pick a judge who would show independence or anything less than "loyalty."
6
Yes. I am quite well informed, thank you. I am also able to accept that the country voted against my candidate and...wow...the sun still rises.
Mitch McConnell allows unethical, immoral and at times illegal actions by Trump to be ignored, if it means his agenda can go forward.
We all know that McConnell is only interested in Republican, conservative power that supports the wealthiest, white, male citizens of this country.
His hatred for all things liberal, his disgust for the Democratic party, and his need to Win, further drives him.
So Mitch will allow Donald Trump, who is under investigation for seriously iniquitous acts, to select a Supreme Court Justice who will further agendas that are adversely changing the America that we love.
15
This thinking also applies to Gorsuch, who was confirmed 4/7/17, nearly a month after Comey had publicly confirmed the FBI counterintelligence probe into links between the Trump campaign and the Russian government and long after Flynn had resigned (2/13/17), Sessions recused himself (3/2/17) and the investigation was initiated (July, 2016).
10
Litmus test to snag that appointment:
(1) I'll nominate you if you make this Russia thing go away (we heard this before and we can be certain that it will happen again).
(2) If you renege, I will humiliate you and destroy your family.
(3) If you decline the nomination and mention anything about this conversation, see (2) above.
PS - Nobody ever believed that McConnell was making a principled argument. Please cite one example of him ever making a principled argument.
24
There are clever comments here trying their best to frame the essay’s meaning into a mere corollary of their own bias, not assumption, but plain old hardheadedness. The essay’s argument is, only in an autocratic monarchy is the head of state allowed to ‘pick,’ or ‘select’ the highest judicial body of a country. I’m no originalist, but the Constitution does assert that the head of state ‘nominates,’ and ‘in consultation.’ Big difference. It goes on to argue such picking and selecting are antithetical to a lawful society, as picking erodes civil obedience and the moral authority of the presidency. (I’m not Taliban either, so spare me an evangelical sermon). Most all else follows from this, including, that autocrats seeking to further erode civil society in this manner, like Trump and his ilk are doing, are violating the Constitution and not permitted to ‘pick’ the justices, for the sake of the public good. Opposition slogans and declarations (...nobody can stop it...it’s a done deal...he’s not been indicted..), are red herrings meant, as they do incessantly, to distract from the immediacy of Russia and obstruction of justice, and to destroy the letter and spirit of the Constitution.
10
Certainly by rights, Donald Trump shouldn't be nominating the next injustice to the Supreme Court, or any judge, or any official whatsoever. But the reality is that he will, and that Orrin Hatch and Charles Grassley will foreswear their integrity and their oaths of office, along with essentially every other Republican in the Duma, and rubber-stamp whatever Donald Trump nominates as they give a veneer of legitimacy to the furtherance of America's version of the Nuremberg Laws.
Ideally a president shouldn't be able to pick his own judge. One plausibly feasible way around this would be for nominees to swear under oath that s/he will (not would, will) recuse himself/herself from any action related to the impeachment, indictment, or purported power, right, or authority of this president, any president, or the presidency or the electoral process with failure to recuse oneself representing automatic resignation and disbarment.
True, promises made during confirmation hearings cannot be counted on. The Chief Injustice of the United States, for example, frequently calls balls and strikes the way that a WWF referee calls fouls. But at least, if automatic recusal were agreed to under oath there would be some modicum of enforceability.
4
Here is an even better reason to postpone the vote on Trump’s nominee to the supreme court until after the midterm elections: Civil War 2.0.
12
Even HRC supporters would have to admit that had she won, she'd have been dogged by 'investigation after investigation' her full 4 - 8 years, and Prof. Berman's opinion would not allow for her to even consider appointing a new justice.
Of course I'm sure Prof. Berman would change his opinion had HRC won the 2016 election.
Dennis
12
HC had been cleared of any criminal wrongdoing before the election and no special prosecutor was anywhere on the horizon. She without a doubt would be under several investigations but those would all be partisan congressional investigations that have no bearing on this conversation.
15
It's all partisan, it's just whose ox is getting gored, which is precisely why it has bearing on this conversation!
Dennis
The idea of waiting until the Moeller investigation either clears Mr. Trump and his key allies or provides evidence of their wrongdoing is not just intriguiging, it's important to the integrity of a free and fair democracy.
Taking this one step further, if it turns out that Trump gained office through unlawful means, we should insist on the impeachment of Mr. Gorsuch as well. Otherwise we risk enduring a lifelong appointment to our highest court by someone who gained his position illegitimately.
For what it's worth, I'd say the same if the tables were turned and it was a Democrat in the same position.
21
I guess these comments are making me too depressed to read further. You're right of course, but doesn't anyone understand that it doesn't matter? None of what you say is going to happen, and nothing is going to stop Trump's nominee from being appointed.
This is not a partisan issue but one in which every Republican Senator must take an active role to maintain the rule of law in the United States. Alternatively, as some will undoubtedly do, they may treat this as one more round of a zero sum game by which their party is destroying our form of government. In the latter case, in the interest of full disclosure, they should announce themselves as favoring the destruction of the Constitution and the substitution of rule by oligarchic fiat.
When Trump nominates someone for the "Kennedy Seat" that person must a priori recuse themselves in their hearing from any decision involving the 2016 election, the Mueller investigation or any attendant action which may follow (e.g., impeachment and senate trial). Failure to do so makes a mockery of justice generally and equal justice under the law specifically.
12
I believe Gorsuch should do the same.
Our institutions are failing. Congress no longer functions, so the Republicans decided long ago they would reshape our country through the unelected judicial branch -- and the Executive branch too, of course. More radical judges appointed by a radical (in no way conservative) Republican party. More Presidential powers. The people may vote, but if the Republicans win their multi-front war for the destruction of government by the people, their votes won't matter.
10
Well, the content of this article will certainly strike enough fear in the GOP to stop the Mueller investigation on an ASAP basis. They want their Supreme Court (second) pick. They will stop at nothing to achieve it. People get ready to oppose ANY and ALL intervention in the Mueller probe. Because that will be their next short term goal.
7
This is perfect reasoning. We all know that the Republicans would be making the same argument if the political roles were reversed. But this argument should go one step further. Trump should not be able to appoint a judge who would be in a position to make legal decisions affecting Trump and his position as president. But then, if Trump is found guilty or is impeached, then his pick should not be able to continue on the US Sup Ct. These arguments should have been made for Gorsuch. But now they are even more vital. There needs to be a bulwark against this ultimate favorite rm of corruption by Trump and his cronies in Congress.
8
In reverse circumstances Republican supporters would be making the same arguments as Prof. Berman and most of the commentariat here, and the Democratic supporters would be offering up the same counterarguments. That should be proof enough for anyone that the arguments lack merit. Presidents have been under varying degrees of suspicion, and investigation in the past, without suggestion that I remember that they should not perform the duties of their office. There is no more reason to suggest it now than there was then.
The President and executive departments have taken actions that many people disagree with and have opposed with varying success in various venues, including the federal courts. Some of these actions may be terrible public policy choices, but they are not criminal for that, and probably do not even remotely warrant impeachment, let alone conviction and removal from office.
President Trump presumably will nominate one of those on a list of prominent individuals that has been public for quite some time. Those listed have publicly knowable history, as did both Judge Gorsuch and Judge Garland prior to their nominations. Those who oppose them surely will bring up any dirt they can find during the Senate hearings, as was done in the cases of Judges Bork and Thomas during their nomination hearings.
2
If a democratic president were being investigated for criminal wrongdoing and that investigation potentially raised constitutional questions that could plausibly come before the Supreme Court, I for one absolutely would be making the same argument. This is not about disagreements regarding policy; it is about basic protections against autocratic governance.
This sounds like an insurance policy.
There is a fatal flaw in this argument. We do not have any evidence that Trump is under investigation. I want you to be right, but you need to do better than this.
10
Trump, his administration, and his campaign is being investigated by the Special Counsel for criminal wrongdoing of various sorts.
Mueller said he is under investigation. He just hasn't elevated him to a "target" yet. You need to do better.
More absurd straw grasping by the left who can't stand when the democratic process doesn't go their way. The president hasn't be accused much less charged with anything illegal. The idea that the minority party, which controls no part of the federal government due to the results of elections, should get to decide whether the duly elected president can exercise his constitutional powers is simply absurd. The fact the NYT will publish any op ed new angle on the same theme is just disappointing. Trump is the president with all the powers that go with it until his term expires or the Congress impeaches and removes him from office. There are no other options. If the Democrats want to regain any say in things like Supreme Court nominations they will have to start winning elections. Moral outrage is no substitution for actually winning seats.
12
Considering that Mitch McConnell used the filibuster to block Obama appointees more times than in the combined history of the Senate and then denied a presidential nominee to the SC a simple hearing before the Judiciary Committee, no member of the GOP should ever let the phrase, "can't stand when the democratic process doesn't go their way" loose from their lips.
10
Charles, you prove my point. Those were legitimate uses of the legislative processes under the rules. Politics is hardball. Now if you want to talk about the general decline in civility and a sense of decorum in the Congress I'm with you. But Republicans didn't start it. They just seem better at taking advantage of it. Did Reid really not think his no filibuster rule for lower court judges wouldn't eventually go all the way to the top? Or did he just think the Republicans would never be the majority again? You will notice that McConnell has rebuked the president's call to eliminate the filibuster for legislature. He understands that being in charge is fleeting.
You are entitled to your own opinions, but not to your own facts.
When Democrats gained a majority in the Senate in 2007, Harry Reid blocked Bush nominees to the appellate courts for the next two years. Had a SCOTUS vacancy developed in 2007 or 2008, with a Democrat majority in the Senate, you are kidding yourself if you believe Reid would have allowed a vote.
In late 2013, with Republicans [minority in the Senate] dragging their feet on Obama appointments [as Democrats in the minority under Bush had done], Harry Reid exercised the nuclear option [which the Republicans had not under Bush] to stuff the DC Court of appeals with seats denied Bush.
Turnabout is fair play.
Republicans took the majority in 2015 and McConnell copied Reid and blocked Obama appellate nominees. As luck would have it, there were more appellate vacancies in 2015 and 2016, so it is true that McConnell filibustered more Obama nominees than Reid filibustered in 2007 and 2008. Since Reid had changed the rules, McConnell was filibustering with a 50 count while Reid was filibustering with a 60 requirement. If you have 51 no votes on cloture, you likely have 51 no votes on confirmation, so the number of filibusters is irrelevant.
Fortunately for Republicans, they were able to apply the Reid rule not only to appellate nominations, but also to SCOTUS.
Reid diminished the power of the minority in 2013, indifferent that he only had a year left in the majority.
The American version of Monarchy---the president picks the court to protect him from impeachment. He refuses any checks/balance by a court, congress, media and party opposite.
A rw extremist party headed by an authoritarian now dominates our 3 branches and most states, with monopoly media spreading fake news propaganda, to mold political norms.
The party uses voter suppression and gerrymandering districts, staying within the laws it has designed to increase and hold power.
It is financed by financial elite Oligarchs who pay little in taxes, but hold outsized power, rationalized by the highest court as ‘free political speech per 1st Amendment. This removed political influence from average citizens.
It keeps dark how US democracy once operated for the citizen majority in its past generations.
Is this Russia or America? We have to revise how we teach civic and govt classes in our schools.
See book, How Democracies Die by Levitsky and Zimblatt and their Cspan video. It doesn’t die just from coups or violence. Cites examples of a slow, insidious process in countries with voting rights.
11
Elite wealthy oligarchs funnel three to four times as much money into Democrat coffers than into Republican ones.
Step 1: fire all justice that have power over Trump and his businesses (Yates, Bharara, Comey).
Step 2: put on the bench only justices who promise "loyalty" and will enforce his campaign promises.
This is a third-world coup.
9
Trump is not going to pick an anti abortion justice. Neither he nor his hardcore supporters care much about that issue . He’s more likely to look for a candidate who’d defend him in case his criminal investigation ends up at the Supreme Court.
This alone is a reason not to let him nominate anyone until he’s formally cleared of all criminal charges .
6
In Nixon v United States, the Supreme Court ruled that impeachments were not subject to judicial review because they are political proceedings, not judicial proceedings. Besides, justices appointed by Trump could simply recuse themselves if the need arose.
As for precedent, Bill Clinton was under independent counsel when he appointed Stephen Breyer to the Supreme Court.
7
At the time of the Breyer nomination, Fiske's investigation had only just begun, and it didn't involve potential criminal wrongdoing by the President and certainly not wrongdoing while in office or during the campaign. Thus, it did not raise the same sorts of constitutional issues.
2
IN April, according to PBS, "Special counsel Robert Mueller’s team of prosecutors has informed President Donald Trump’s attorneys that the president is not currently considered a criminal target in the Russia investigation, according to a person familiar with the conversation."
Clinton was under criminal investigation for criminal wrongdoing when he made the Breyer appointment.
As usual William, a voice of reason.
Prof. Berman,
It’s time to get down in the gutter so as to be better able to assess the situation we have here.
We’re dealing with ruthless mobsters and racketeers here. Your argument may apply in a civilized environment, but we are dealing with the lowest most corrupt gang of politicians America has ever come across. There is no right or wrong with these people, there is only, rub out any opposition by hook or by crook.
The swamp is the size of France.
8
Just joking of course, but this raises the question of whether the McConnell Amendment to the U.S. Constitution or the fundamental right to choose your own judge should prevail.
More seriously, you've demonstrated again that "whom" (or "whomever") should be abolished from the language because it's misused more often than correctly used, even in the New York Times.
2
Should we not savor the exquisite irony of a President who pays no regard to the Rule of Law yet seeks to appoint another Judge to the SC?
8
You are correct in the irony that Obama had two SCOTUS picks confirmed, while he was the President who disregarded the rule of law more than any other president in history. Count up how many times his administration was ruled against by SCOTUS, and it beats all others. The remaining cases against his administration are still outstanding, and he is going to lose all of them.
Go to the SCOTUS official website and examine all of the cases heard by SCOTUS from 2011 on that involved actions of the Obama administration and see how many times he lost. Look at the complaints against his administration that are still working their way through the appeals process.
Actually it is a trend that predates Obama - where is Trump at? If not only SCOTUS but also other judiciary branch decisions (which Obama's record wasn't as good as any of the recent presidents but neither was Bush 2's before anyone else, until Obama).
In any event, I'm confident Democrats will come in power again and they will pay back and pendulum will continue to swing. In the long run, I think these are dying gasps of a conservative movement that is on its death throes - things about to die fight the hardest. I think there are more existential problems facing humanity than politics in the US (though some of it is related to politics and made worse by it, these are fundamental problems of human nature that requires changing of behaviour by the vast majority of the 7+ billion people on this planet).
Why are Democrats silent on this? Say it loud, say it proud. Otherwise, the bully sets the agenda, and you keep losing.
7
I'm sorry, but this is a ridiculous op-ed.
1) Trump was not a popularly elected president, Obama was but that is irrelevant. Both were/are legitimately elected. We've had presidents elected who had less than 50% of the vote and they got to nominate people to the Supreme Court.
2) BUT -- by the time Merrick Garland was nominated the dems had lost the house and senate. And Obama's margin of victory in 2012 was less than 2008. Obama's approval rate in 2017 -- at the time Garland was nominated -- had averaged under 50%. So Obama had lost much popularity and the dems had lost congress.
3) The seat being filled had previously been held by a conservative justice. Waiting until the election -- a mere 7 months away to ascertain who the president would be -- seems reasonable. Particularly given that supreme court nominations can take several months. Gorsuch took 2+ months and it is projected that Kennedy' replacement won't be confirmed until the fall which could be 4 months.
4) Under the cloud of investigation. Ridiculous. Mueller has put forth no evidence of Trump or his campaign colluding with Russia. Given the testimony from the IG on the FBI/Comey handling HRC's emails it is unlikely -- unfathomable -- that Mueller will go after him on obstruction of justice.
5) As for other possible legal issues -- those issues could come at any time and should not prohibit a president from nominating a justice to the SC.
This is pure partisan garbage.
12
Ralphie, you have said time and again that Mueller has put forth no evidence of trump "colluding" with Russia. (The term is criminal conspiracy, not collusion). And time and again, you have been told that Mueller has not completed his investigation, and he will put forth NO EVIDENCE UNTIL HE DOES. We shall see who is gone after for obstruction of justice by Mueller; I doubt it will be trump alone. It is pure partisan garbage to keep repeating over and over again that Mueller has "put forth" no evidence regarding trump's guilt or innocence when it is KNOWN that he will not do so until the culmination of his investigation. Good grief!
1
Hey prof, your animus towards Trump is obvious. Clinton was implicated in the Whitewater investigation when Reno initiated the investigation in Jan 1994. Clinton nominates Bryer thereafter and Bryer is confirmed in May 94. Bet the Dems didn't raise this issue then, right?
13
I responded to this in two previous comments. At that point the Whitewater investigation had only just begun, and it did not involve potential criminal wrongdoing by the President while in office or during the campaign. Thus, it did not at the time raise foreseeable constitutional questions that would come before the Court.
2
Are you kidding? From day one Bill Clinton was the focus of the Whitewater investigation. And it ALWAYS involved "potential criminal wrongdoing by the President."
I'm sure glad I live in a country that believes in "Innocent until PROVEN guilty."
"Hey, Mr President, we don't want you to do your job because of something that might happen in future." Ya, that will go over like a lead balloon.
12
Trump may go to jail after his presidency for a host of illegal acts, and it is not right for a potential felon to decide on this important post. Since O'Connell stole the Court seat, should not Gorsuch be charged with receiving stolen property?
6
Various comments are correct, the Supreme Court cannot directly shield a president from impeachment. But that is not the risk, as the article makes clear.
Since impeachment is a political process, a rubber-stamping SCOTUS can legitimize a president's blocking of evidence. Without a court ruling to turn over his tapes, thus revealing the "smoking gun", would Congress have voted against Nixon? A rubber-stamping SCOTUS can legitimize a presidential self pardon, the closing of any investigation, or the closing of Congress itself.
As we have recently witnessed in Venezuela and Turkey, a Supreme Court (by definition?) can make literally ANY Presidential action "legal". How's that "I could shoot someone on Fifth Avenue" going to work out then?
10
Impeachment is a political action by the House of Representatives, adjudicated by the Senate. The court system plays no part except that the Chief Justice of the Supreme Court presides over the Senate impeachment trial when a president is being tried. There is no reason to think the Supreme court, or any inferior court, can intervene, let alone "legitimize a president's blocking of evidence."
After only two days, it is past time to end attempts to create a moral panic over the perfectly ordinary event of appointing a successor to a retiring Supreme Court Justice.
1
The suspicion that the President could have some financial or other influence on the choices of replacement Justices could well have been a concern 10 or more years ago.
Now, many of us, our social media and corporate owned print and broadcast media outpace what even the most connected in earlier generations could learn, and publicize detailed news (and bad rumors!) within hours.
I say let him offer his choices. The court of public opinion and its' influence in politics can ensure more transparency than even the Obama administration promised.
2
We Democrats have got to get it into our heads: the Republicans will NOT delay, postpone or in any way slow down the nomination and eventual confirmation of the most conservative jurist possible. They are determined to foist their reactionary, evangelical and anti-union philosophy on the majority of Americans, even though those Republicans are a minority. We MUST elect as many Democrats as possible to both the House and Senate immediately. Even then, it'll be too late
4
“Our executive now has surveillance capacities never before seen, vast power to conduct drone strikes and conduct lethal military operations abroad, broad authority to set immigration and law enforcement priorities and the ability to regulate enormous areas of economic and personal life.”
And Democrats were asleep while this happened, since it occurred on Obama’s watch and they assumed it would continue e under HRC. It will take a great Libertarian wave to undo the damages done by Messrs. Bush, Trump and Obama.
3
Charles, I believe you mean a LIBERAL (not Libertarian) wave. Examples of libertarians are ron and rand paul. ron paul when asked what people are supposed to do if they are sick, and cannot afford health insurance or health care replied: "DIE." (And both ron and rand paul are physicians.) Which is exactly what the republicans are saying to the American people right now: "You peons who cannot afford the astronomical costs for health insurance and health care--JUST DROP DEAD!" My definition of a libertarian is a republican...on steroids.
1
It is not true that Trump's pick could stand in the way of impeachment, as this article claims. The Constitution gives Congress the power to impeach. Period. There is no role for the Supreme Court in impeachment, other than the Chief Justice presiding over the trial. Congress can decide to impeach at anytime and the Supreme Court can do nothing to stop it. It's that simple. As long as Congress believes that the president has committed "treason, bribery, or other high crimes and misdemeanors," the House can impeach and the Senate will conduct the trial. There is nothing the Supreme Court can do to stop it no matter how many cronies the President may have put on the Court. That was the wisdom of the Founding Fathers.
8
No, but he can find someone to extend his ability to stop the investigation.
8
One has to be willfully naive to think Republicans would be impartial enough to impeach Trump, even if the evidence of is crimes were overwhelming. So this claim about the wisdom of the founding fathers is empty in that it completely overlooks how the Court might have to become involved if Trump claims he has power to pardon himself.
8
My article is not in any respect about impeachment; it is about constitutional questions that might well come before the Court, which I list in the article. None of those questions is about the impeachment power.
2
Justice Kennedy voted with the majority in 15 of 20 cases in 2017-2018 favoring the trump administration including the recent travel ban. Now we're learning money changed hands between Kennedy's son who had a position at Deutsche Bank and into Trump's hands in the amount of at least $1 million. I fear any replacement will be just as easily swayed by those in this government who need ever more money for their real estate deals and accumulated debt.
https://www.washingtonpost.com/graphics/2018/politics/supreme-court-2017...
6
What's the alternative, let President Pence pick?
9
Presidents pick Supreme Court justices; those justices then make decisions on numerous issues that may be in the interest of a President. Take the recent 'Muslim Travel Ban' decision, that was cast in favour of Trump's position. Is it a conflict of interest, therefore, for a President to pick a judge? Well, yes, obviously. But that is how it is done. Trump's 'Russian Collusion' case may never come before the court, and on that level it's nonsensical to use the investigation as a means to remove Trump's Presidential duty to appoint a judge. I'm no Trump supporter, but the logic in this article does not stand up to scrutiny. That's MY judgement, anyway.
11
Then any judge he picks should be required as a condition of his appointment to recuse himself on matters concerning the investigation into the president's activities, including not just conspiracy to violate election law, but also possible money-laundering, obstruction of justice, and violations of the Emoluments clause.
6
The GOP denied a hearing on Garland for lesser reasons.
I'm usually not a tit-for-tat kind of person, but I do enjoy having some rights as a woman. And as an ally of LGBTQ persons and persons of color, I support whatever tactics the Dems use.
5
On an emotional level, I agree with you. But on a practical level, it sets up a hypothetical precedent that would be kinda unworkable. Why not then apply that standard of potential conflict of interest to every judicial nomination? Any President could, at some point, come under investigation for any number of reasons. And... At what point would the 'conflict of interest' clause cease to be in effect? For example, if a future Republican (or Democratic) President comes under investigation, would all Republican (or Democratic) nominated justices have to then be required to recuse themselves as well?
First, I agree entirely with the sentiments of this editorial. But there's still a very good chance McConnell will be able to ram almost any appointee through. He cares nothing for the integrity of the Senate or the Supreme Court. It's all about winning big for right wing, zygote-to-grave governance.
Failing a popular revolt that holds the Senate at bay, we should at least insist Trump judicial appointees recuse themselves from any decisions directly involving Trump. This would mean a 4-seat Democratic majority in the Supreme Court for issues like self pardons, compelling testimony, and criminal indictment.
It's the least we should do for a president who has credibly and self-admittedly obstructed justice. And for a president who feels personal loyalty is the utmost requirement for those working around him. And a man under criminal investigation for election law violations and potential collusion with a foreign power.
13
The very fact that a president (a single person) can appoint the highest judges in the country is already a blatant conflict of interest, in case of a candidate who didn't win the popular vote undemocratic, and should be changed.
Instead, such a privilege should rest with a body of several people such as the senate.
11
The Senate has to approve the pick, that is the balance. If you object to that system or to the electoral college ( as opposed to the popular vote) selecting the president then your problem is with the US Constitution not the current president.
9
And what do you do if the Senate refuses to vote on the President's pick for Supreme Court?
I'll bet the founding fathers didn't see this coming.
They made no mechanism for making the Senators do their jobs.The Republicans exploited that loophole when Obama was president.
Now the Republicans claim that Democrats could not do the same, because Obama was a "lame-duck" president (whatever that means- he had a year left, and it was before the election, so how could he have been a "lame duck"- which is a president after the election of a new president.)
As I recall, the Republicans claimed that if Clinton won, they would refuse to vote on any of her picks for Supreme Court from day one. (So they would have made her a "lame duck president for her whole term?)
The nation can't survive this Republican "Heads I win, Tails you lose" style of governing.
Yes, Todd: The Constitution needs to be amended in the case of the Electoral College, which, in this last election, has shown itself to be partisan and corrupt, absolutely violating the law that it was charged with upholding. That law says that it shall not (it is PROHIBITED FROM INSTALLING) install any person into the office of the presidency who is UNFIT. They had to be out to lunch if they could not see that trump was both mentally disturbed, and dangerous, from his breathing like an asthmatic dragon, while he threateningly stalked HRC around the stage at a presidential debate, while focusing on her rump, and making crude faces (rather than remaining behind his podium, as is correct behavior), to inciting violence at his rallies, calling for his supporters to attack others, and even offering to pay them to do so, to mocking a disabled reporter, and incredibly denying it all the while the videos of him doing so played on television! No, they were not "out to lunch." They were simply and outrageously partisan and corrupt; lawless. The E.C. is antiquated anyway, but the more salient piece that begs its demise is that it completely disregarded the law to which it is/was bound, rendering it both foul and useless. Of course, to the republicans, not so, as it handed their emperor a win, albeit, an illegal one. WHAT is it that trump IS FIT FOR?????
Stain? Our whole government is stained!
11
A " cloud of investigation " is not a charge of wrong doing. Anytime a political party wanted to delay a judicial appointment by any president, all they would have to do is start some kind of investigation. It is difficult to believe that, after a year and a half, any substantial charge against Trump will surface.
8
And yet, the Republicans refused to give ANY Obama nominee s hearing. Any judge appointed by Trump should recuse himself from cases involving Trump. As to your "year and a half," it took longer than that to make substantial charges against Nixon. And if Trump is NOT guilty, why is he acting exactly as you would expect a guilty man to act? It would be easy to release his tax returns, yet he refuses. He refuses to defend our elections from foreign interference. He gives Putin everything he wants. No, it is not at all "difficult to believe."
3
What a brilliant workable idea! (Sarcasm) Everyone knows that no investigation is ever politically motivated, and clearly the losing party in the last election would never seek to deprive a president of the opposing party from appointing a new Justice, just for partisan reasons! And then there is the slight problem that the Mueller problem may never end.
But the main illogic in this editorial, as pointed out by others, is that the Supreme Court plays little if any rule in any impeachment. The author should be arguing that a President cannot appoint a new Justice if he is a party to any case pending before the Court. But, as the law professor no doubt knows, the President and/or the federal government is a party to countless cases before the Court and it would be ridiculous to suggest that such fact would effect the president's appointment power.
11
Richard,
One might add that a Justice can, and often does, recuse herself from a particular case if she has an interest in the outcome, or if she'd worked on the case for one of the parties (as when Elena Kagan recused herself from several cases she'd been handling when she was Solicitor General). If any doubt arose, a Justice appointed by Trump could recuse herself if a case involving Trump reached the Supreme Court.
That's an argument for recusal, not for denying a President his Constitutional right to pick a Justice.
6
Trump is not "a party to'" this issue. He is personally under investigation. And there is no "illogic" -- the court cannot impeach, but it CAN help Trump stop the investigation or pardon himself, so that he won't be impeached. And if a Democratic President cannot appoint a judge in an election year, why should the rule be different for Trump? Let the people decide, especially with a president who was elected by a margin of 70,000 in 3 states, possibly with illegal foreign assistance, while losing the majority of voters by a margin of 3,000,000.
3
Again, my article is not about impeachment nor is it about any case where the federal government is a party. It is specifically about a criminal investigation. And this is not an investigation brought by a losing party; it is an investigation that is in all respects authorized and run by Republicans (Comey, Sessions, Rosenstein, and Mueller himself).
Is every man a suspect in your world?
5
"Is every man a suspect in your world?" ~~~~~ Perhaps it is a wise man who sees every man as a suspect. I remember my father's words, always: "I love everyone, but I trust no one." After all, everyone has an agenda...
1
We have single-party rule of all three branches, and the party in power refuses to enforce the law. A third party candidate might consider fixing the system. But current parties will not.
5
What makes you think the Democrats won't "fix the system"? A third-party vote is a sure way to help Republicans win. No third party has succeeded in becoming a dominant force since 1860.
3
Everyone get reading “The Handmaid’s Tale.” This is where this country is heading. Rich religious conservative fanatics gradually taking away the checks and balances in our political system, isolating us from long standing friendships with other countries. Repealing Roe v Wade. Undermining the separation of church and state. Ladies I hope you all look good in red!
15
Frightening only to half the country.
5
Only 24% of Americans voted for Trump. Not half, not by a long shot.
There! Now you are playing the game smart. Use McConnell's medicine against him.
9
There is already a stain of illegitimacy on this court. We ceased to be a constitutional democracy when the Republicans stole a SCOTUS seat.
23
McConnell should have been impeached or at least severely reprimanded by the Senate. But, of course, they aided and abetted his trashing of the Constitution!
Where is our country headed?!!!!
Professor,
You teach Law! It can be assumed that you have read the Constitution and even its amendments. Perhaps the Federalist papers as well?
You want to halt the workings of this Republic until your side can prevail and by following our laws you can. Just impeach and convict the President. The process is simple.
If you and Liberals believe that he is guilty as do some in the Congress start the process and make your case to America!
Of course since “impeachment” is a political not a legal process you need votes that you lack!
It is ironic that the Left has used the courts for a generation or more to circumvent our laws and Congress in pursuit of their own vision of America only to see it undone by the the same method!
Elections do matter more than do the Courts! Next time run a better candidate!
10
Kennedy resigns so his judicial reputation will be kept in tact but what about his concern for our country? Did he really think it was going to serve his legacy to resign just before midterm elections, before the Mueller investigation completes so that the Liar in Chief could appoint yet another ideological toady?
15
The only cloud is why this whole matter began and it looks like it started with paranoid Dem operatives freaking out that Trump could actually win. They got the FBI involved; phoney dossiers, excused Hilary’s problems and started an “ investigation”. Sure Russia may have meddled but that’s old news. Trump’s not going anywhere and has every right to nominate a replacement -pronto.
7
That makes no sense whatsoever. If Democrats wanted to mess with the election, they could have released the dossier to the public. They never did. If the FBI was in on it, they could have leaked about the investigation before the election. They never did. If the Trump campaign had called the FBI when approached by Russian operatives, instead of eagerly taking meetings, they would not be tangled in an investigation into election fraud by foreign agents. And if I were you, I'd remember this -- that if Russians can elect your candidate with impunity, next time you may not be so happy with their selection. The basic premise of self-government is that CITIZENS, not foreign powers, choose the leaders. Give that up at your peril.
3
Excellent comment. Thanks.
The author alludes to an idea that the investigation of President Trump will soon find him guilty, and guilty enough to be removed from office.
If the House were to Impeach President Trump, his trial would be in front of the Senate, not the Supreme Court. However the author states, "People under the cloud of investigation do not get to pick the judges who may preside over their cases." The NYT disappoints by choosing to publish a piece so misleading.
Of course the method of impeachment by Congress not the Supreme Court is described in the Constitution. The same Constitution that does not limit the President's ability to nominate a justice while under investigation.
6
Again, I wasn't writing of impeachment; I was writing about the list of constitutional issues that are enumerated in the article.
Yes, but if a Supreme Court nominee held a personal bias towards the president over independent judicial thought the senate holds the power to not "consent" to the appointment. Once again the Constitution provides the answer here by limiting the President's power with the Supreme Court by requiring Senate approval.
This rationale could backfire. It could also be interpreted as a reason to end Mueller's probe prematurely so as not to prolong the absence of a ninth vote on the Supreme Court.
2
Refusing to make tax returns public should also be grounds for denying judicial appointments.
11
The Supreme Court in unelected and undemocratic . Another shortcoming .
Imagine .. if the Supreme Court could not declare laws of congress unconstitutional . It’s not written in the constitution . The Supremes granted this power to themselves in Marbury vs Madison . Congress can overturn this ruling or even add more members to the court.
2
So you never got the memo? Since you missed it, I'll give you a copy. The United States of America is not a Democracy, it's a Republic.
How then could any vacancy on the SCOTUS be filled during the term of a sitting President that was under investigation for a potentially impeachable offense, and whose party held the majority in the Senate?
The Supreme Court's anticipated shift to the right, and the possible overturning of decisions that have given rights to women and other disenfranchised groups concerns me deeply.
But seems to me that our most serious dangers lie in how increasingly polarized we've become as a nation, the threats to our democracy from foreign powers that know how to exploit those internal divisions and manipulate our elections, and, of course, our increasing and unsustainable national debt.
Of these, it's our deep divisions that can be exacerbated by Supreme Court appointments. In this regard, our best hopes may lie in Chief Justice Roberts to show fairness and impartiality as the composition of the bench changes.
8
I hadn't thought about the question from this angle, but Mr. Berman makes an excellent point. Unfortunately, I think he is also correct that it won't matter to McConnell or to his colleagues, whose only concern is to stack as much of the judiciary with Federalist Society appointees as they can manage, so that their influence on the direction of the court will last until long after the people who put those judges in place are no longer in Washington.
5
Putin is selecting our Presidents and our Justices.
What next ??
8
Since when has McConnell, or Trump for that matter, behaved out of reason? Especially when their power grab is threatened?
5
"People under the cloud of investigation do not get to pick the judges who may preside over their cases." They also do not get to see the prosecution's documentary facts while the investigation is under way. Seems to me that impeachment, as well as a multi-billion dollar lawsuit, is in order for the members of the GOP (including Godwdy, McConnell et al.) who are busy trying to undermine our rule of law.
12
Congress can still impeach Trump no matter what the Supreme Court does? Whether it will or not may depend on the party in power. But to suggest that allowing Trump to pick a Supreme Court justice who would give him everything he wants could stand in the way of impeachment is wrong. Even if Trump can pardon himself for treason, for example, Congress can still impeach.
The only role for the Supreme Court in the event of impeachment is for the Chief Justice to preside over it. And recall that Rehnquist barely said a word during Clinton's trial in the Senate. As it should be, per the Constitution.
3
No, the Supreme Court will be asked to decide all the ancillary questions that surround the impeachment and removal of the President -- the Court will be essential in setting the stage, just as it was in the months leading up to Nixon's almost-impeachment. What if the Court says that dangling a pardon is not obstruction of justice? There goes a big part of the obstruction case.
4
At last someone with a bigger bully pulpit than me has expressed the most serious political significance of these past few days.
Trump openly aspires to be the one and only authority in our government. In his mind he is the omnipotent boss, his word is the final word, his orders are to be loyally executed, without hesitation and without question. He is the ultimate judge of right and wrong.
From the time of his appointment by the Electoral College, he has worked to amass and consolidate his authority. I have watched in shock as he defied demands for his tax returns, blew off ethics rules, enlisted honest career professionals to lie for him, crashed domestic and international order, and built Congressional complacency into aggressive support for his criminal behavior.
There was only one obstacle left on the road to Trump's supreme power fantasy. Now, he sees a clear path to the creation of a Court that will be as permissive and supportive as Congress. He is going to make it happen.
I am resigned to that. At this point I'm trying to imagine exactly what the effects of the first American strongman will be on the daily lives of ordinary citizens, who more than likely don't yet fully grasp what is happening. Yes. I am frightened.
11
This article just seems so incredibly out of touch with reality. The thought that our political leaders-particularly those currently in power, would even consider ethical or moral questions seems incredibly quaint. I'm not sure our political leaders ever really did that, but come on, does anyone really think our current political leaders even give a moments thought to doing what's right? I sure don't.
7
Leo--Yeah, nobody thinks of ethics, or morality, when they think of Mitch McConnell, OR the Republicans. ( Doesn't tRump remind you of Benito Mussolini, who also used to stick his nose in the air, and attempt to appear "noble?" And, we all know what happened to him.)
2
"People under the cloud of investigation do not get to pick the judges who may preside over their cases."
Okay, but the essentials of this argument have already been raised regarding Trump's firing of Comey. It has also been raised as Trump muses about firing Rosenstein and/or Mueller. Neither Trump nor the Republican Party care what should or should not happen, ethically speaking.
7
Not sure how it would be different in terms of an issue if a president selected Supreme Court justices when they were not being investigated then later ended up under investigation. This is also forcing an assumption that the investigation will end up in the court. Until there is a charge we cannot be in the position of taking responsibility/authority away from any elected official. Might as well then go the whole way and say if a president or any other government official is accused of something on Twitter or email or by protesters on the street that they can no longer execute their responsibilities until proven innocent.
4
Of course it's different -- the president who selects a justice and later comes under investigation didn't know that he'd have to rely on that selection to save his bacon in the future. Trump knows what he's done and he knows that he's under investigation. If we're lucky, Trump will make enough public statements about his dependence on the new justice to require that person to recuse herself from all of Trump's conspiracy and obstruction-related cases.
2
You can blame Congress, and both parties, for ceding authority from both the Legislative an d Judicial Branches. It did not help with giving the president braid powers under the Patriot Act, and merging a number of government agencies into Homeland Security. The seeds of autocracy were already sewn soon after 9/11.
The biggest worry was what happens if the nation elects a president who does not follow the precedent of other presidents? What happen if a president is elected who does not believe in rule of law? What happens if the president commits acts which could be criminal, suspend the Constitution, hold citizens without trial, etc.? Finally, what happens if a president has the power to make the court system that exempts him from any prosecution?
Well, we are going to find out very soon. As, we now have such a president. One, who has a goal, to be in power for life, even though now that is impossible.And, one who has the ability to appoint a justice who would put the GOP, and president, above rule of law.
Yes, it certainly is a good idea to wait until 2019, and after investigations are complete. But, I suspect, Trump will stop the investigation, after he appoints some one who will rule in his favor. Effectively, giving a president carte blanche on authority. And, his party, is willing to cede such power.
All the opposition can do, is hope they win back Congress. But, until then, take the floor of the House and Senate, not cede it, and ramble on until January.
8
This would be a very good case except for the reality that the court has already been de-legitimized by a certain man named “Mitch McConnell”.
6
We’re turning into a country of two wrong do make a right.
Blame falls squarely on any democrat who could not see the 2016 election as an existential crisis and decided to not vote in the election.
I can’t wait to see 100% voter turn out in November from democrats
4
At least equally to blame are those in the key swing states who couldn't bring themselves to vote for Hillary and instead, threw their votes away on a third party candidate. I suspect 99% of the people who did that assumed Hillary was going to win anyway, but didn't want to be associated with the "stain" of voting for her. But as to that 100% voter turnout...I expect there will again be a split in the vote, because the extreme left wing block of the Democratic party seems to be at war with the moderate wing of the party. By contrast, Republicans are now fully united behind Trump. Call me a pessimist, but I think our best chance to avert the Trump catastrophe is already long gone.
2
Are you suggesting that Democrat voters don't consider the long-term consequences of their actions, or lack of actions ?
I agree with this opinion and think it is a valid argument.
Leading up to this horrible boondoggle (confirmation hearings), I think the Dems should state publicly all across the country, over and over, that it is obvious that Republicans in their rush to confirm a right-wing judge are proving they are supremely:
1. Anti-Choice, therefore, Anti-Women
2. Anti-non whites (Affirmative Action), therefore white supremacist
3. Of course they are anti-gay, but I think repeating that would only help the Republicans. (I'm a lesbian and feel most of the country doesn't consider us valid in our own right or understand us yet.)
7
Gee, thanks for reminding me of the existence of the Mueller investigation. With North Korea, the Putin summit and the trade war, and all the other daily atrocities I almost forgot about it.
1
Gorsuch should take a knee until Mueller is completely done.
He's as illegitimate as the next nominee.
And his votes nullified.
All of them.
6
People are AMAZING at rationalization.
2
None more so than progressives.
Two facts undercut this argument. First, once seated a Supreme Court justice is beholden to no one. He or she does not run for re-election. They can serve as long as they wish. Second, this president, like others, serves a limited number of years as determined by voters.
And, remember, three of the justices who joined the majority to rule against Richard Nixon in the Watergate case had been appointed by him. A fourth recused himself.
6
Was Nixon under investigation when he appointed any of the four Supreme Court justices? I don't believe so. That is a very important difference. They were appointed in 1969, 1970 and 1971. Nixon's trial was in 1974. Rehnquist recused because of conflicts of interest.
2
Nixon at least had some morals, and could be talked into resigning for the good of the county. He also wasn’t dictator wannabe. Trump makes Nixon look like a Boy Scout. We’re in deep trouble here.
1
You don't think a judge would feel any sense of obligation to a President who said "hey, I'm going to get you onto the Court, and I know you're going to be a good justice, a loyal justice." And then got the judge onto the Court?
1
The breaking news about Justice Kennedy's timing in tendering his resignation & its relation to his son's connection with Trump via Deutsche Bank has thrown an even deeper cloud over the selection of the next justice. Make no mistake this is being orchestrated by Trump's handlers, both here & abroad, to insure that the SCOTUS is secure for their purposes prior to the fall elections. The current Senate will green light whomever the Heritage Foundation puts forward for nomination. No doubt. The hearings, however, will be enlightening. The democrats must bring all of this to the forefront. They're not going to stop this travesty from occurring but they sure will have a prime opportunity to shine a light on a lot of stuff that gets relegated to the back pages.
VOTE November 6 2018
11
@Hari Seldon
In TrumpWorld, reality and fantasy have equal presence.
The law is "what they say it is" and don't you ever forget it.
If they want to install a Supreme Court Justice, get ready for the tweet.
Cogent argument. Not relevant.
The key for Progressives is to START WINNING ELECTIONS. Make a case, get the votes, & stop the thoughts and prayers that some Magical Female Republican Senators are going to save us.
3
Surely the author can't be serious. The mere existence of an investigation, rather than proof of actual wrongdoing, is sufficient to keep the President from appointing Supreme Court justices? What else can't a President do while under this hypothetical "cloud?"
Imagine future Democratic presidents wanting to appoint a new Justice. (I say "imagine," because 2 years after Trump's unexpected election, I don't see a single serious or credible Democratic challenger in sight. How scary is that?) All Republicans would need to do to block any future appointments would be to start an "investigation" of the sitting President, on any pretext imaginable. "Can't appoint while you're under investigation- the Trump Rule!" they'd howl.
And they'd be right. We don't take away Constitutionally-granted executive powers because we don't like the incumbent (although Republicans did it and got away with it, because timid and thoughtful Obama wouldn't call their bluff and seat Garland after the Senate refused to exercise its obligation to advise and consent), or because we fantasize that SOME DAY a special prosecutor MIGHT bring charges.
Face it, Democrats: you lost the 2016 election and the ability to shape history with it. Time to roll up your sleeves and see if you can win an election, preferably a lot in 2018 and 2020. If you can't do that, the playbook for total and continual obstruction has been written for you. Read it and start getting busy, before we become a 1-party theocracy.
8
I dunno, Trump is providing plenty of indication these days that he's got something to hide, and he's on the record communicating directly with the Russians regarding emails he believed to have been illegally stolen from an American ("Rusher, if you're listening...")
1
Because Mike Pence will doubtless agree with Trump's choice for nominee, and Pence would become president if Trump was impeached, the author's argument is a non-starter.
1
But the argument is about what happens before impeachment. Pence will doubtless agree with the choice of nominee, but Pence isn't (as far as we know) under investigation and so won't be picking a judge who will oversee all the disputes leading up to the Trump impeachment and removal proceedings.
An extremely cogent argument for denying Trump the power to appoint a new justice. Even if the new justice were to recuse him or herself (just joking, we know it will be a white male) a Mueller related decision could result if a 4-4 split. A real constitutional crisis.
1
We don't know why Justice Kennedy chose to retire at the end of July. But Liptak and Habberman's story yesterday about that contained an irritating detail: that Justice Kennedy's son Justin helped arrange 1$ billion in bank loans to Trump when he headed the global real estate division of Deutsche Bank. Trump was headed for another bankruptcy after 2008 but Deutsche Bank helped him with loans when no U.S. bank would touch him. Trump later defaulted on $640 million of that loan, but was able to 'pay it back' after securing a different loan from Deutsche Bank's 'private wealth' division to repay the loan from the real estate division. A NEWSWEEK story last December by Luke Harding claimed that the day Trump was inaugurated he owed Deutsche Bank more than $300 million. This as Deutsche Bank has been embroiled in scandal about laundering for Russian oligarchs. And according to the NEWSWEEK story, Robert Mueller has subpoenaed Deutsche Bank for materials including data and documents on Trump associates.
10
Even if Trump was deemed unfit to be President, does anyone think that Pence would choose someone substantially different?
2
The argument lacks merit on its face. The President does not appoint justices, he nominates them. It is the Senate that confirms and Republicans have recently won more democratic elections for that position than Democrats have.
Don’t whine about the rules. Get better so you can win.
7
Seventy years of constitutional distortion fed by the “Living Constution” doctrines opposed by conservative judges are exactly what has enabled the vast expansion of federal and therefore presidential power that this writer cited as a reason to deny the president the power to exercise power that he explicitly has. Overturning Wickard, Kelo, Chevron and the other rulings that have enabled unconstitutional federal expansion in direct contradiction of the tenth and ninth amendments and one need not be so concerned.
2
Dream on. Mitch McConnell warned the Democrats in 2013. Many of us commented that Harry Reid and company were making a big mistake. Now all that is left to do is charge the windmills.
7
One thing about progressive rage. It rarely reaches the party directly responsible.
To get through what lies ahead with the Supreme Court Justice replacement process, you will need to believe the nominated candidates hold to the concept of an independent judiciary. You have to hope that all the members of the court can see their roles as jurists in a nation that changes over time.
Slavery, women couldn't vote, blacks only drinking fountains, internment camps and many other examples from our past were all legal and considered normal. They are no longer legal or considered normal. If the Supreme Court were to get locked in time and stay out of touch with a changing nation that is a recipe for regression.
In a nation and a world where the pace of change is so rapid, you have to hope for an agile judiciary. If the Republican establishment wants to pretend you can stop or slow the pace of change with a hard right choice, they are wrong. We live in a world where circle up the wagons doesn't work anymore. RAW
5
“People under the cloud of investigation do not get to pick the judges who may preside over their cases.”
This is perhaps the strongest argument. The question is how to prevent republicans in Congress to continue engaging in senseless synchronized nodding, like toads in a hailstorm.
2
What exactly is the point of this editorial? Mr. Berman acknowledges early that the likelihood of a Republican majority Congress refusing to consider appointing a Supreme Court judge is as close to zero as makes no difference. As far as I can tell, the Democratic Party's strategy is to enable the farthest left leaning of its constituencies to shriek (often incoherently, as in this piece) their unchanged objections to pretty much every policy and proposal put forward by the Trump administration and hope that "the base" will somehow be energized by the yelling. This is just tossing more red tofu to the crowd. Without a change in priorities, and policies that will attract more White and Asian Americans, it seems the mid-term elections will favor Republicans and Trump will regain the White House in 2020. And silly unworkable arguments like this one will have contributed.
5
Here’s the thing.
It is possible to write as many op eds as you want. Put forth as much justification as you want. None of it matters.
What matters is action. Are the Democrats willing to actually stand up and do something? Right now, Donald Trump is the perfect fund raising tool for them. They just have to say his name and money and votes pour in.
From the establishment perspective, why take a risk like starting an impeachment proceeding. Why actually do anything more than the token bit of political theater (like that sit in on the house floor over gun laws) that change nothing, do nothing, but bring in money and make it look like they actually care.
Let’s face it, the Democrats in congress are every bit the impotent sock puppets for moneyed interests that the Republicans in congress are.
But with Kennedy, they are looking at something different. Most of the conservatives on the court are young. They will be there for a long time to come, and dhort of retiring and death, there ain’t no way to get them out.
If ideology actually means something to the Democrats (and I suspect it doesn’t) then now is the time to act. These next few months will pretty much lock the next 20 years of politics.
If elections, on the other hand, are just about which side gets the power and bribes then, well... Democrats carry on as usual.
1
Yes, the power and the bribes. The Supreme Court called those bribes 'free political speech protected by 1st amendment'.
Both parties vie for corporate mega donor money. Commentators ignore the whole issue and its effects. The media makes profits from campaign ads---the highest expense, needing billionaire check writing.
Majorities of voters and many politicians favor changing election financing. There would be huge ripple effects on all issues. Where is our media on this? A blackout.
Or at the very least (because let's face it, the very least is pretty much what we Democrats get these days), he should recuse himself from any cases involving or related to the Mueller investigation.
1
Prof. Berman's column seems more an article from "The Resistance" than a well-reasoned op-ed in the NYT. Using his logic Presidents would only be able to nominate a Justice during the first and third year of their terms since at some point either their own term or some Senators would be expiring! Doubtful this was the scheme the founders came up with.
That said, the words "autocratic lawless rule" stood out for me. Say what you want about Trump but, to the best of my knowledge, he hasn't disobeyed and/or ordered another in the Executive branch to disobey a judicial order. In fact, President Trump has done quite well, as most people thought, on appeal. So I say to my liberal friends, calm down. Apparently only Republican Presidents get to be called Imperial (ala W (Bush)) or autocratic. The NYT rationalized when Obama used the same techniques by referring to "obstructionist" Republicans. Looking back, with the exception of the ACA, Obama fared much worse on judicial review.
7
Since when was "autocratic lawless rule" reduced to nothing more than disobeying a judicial order? It's time to do some reading on a subject called the rule of law.
1
Excellent points. The left hates Trump so they call him fascist, dictator, etc. But here's the problem: This is what they say about every GOP president. It's the same old accusations ever time. What's remarkable is how they convince themselves that each time it's worse and the first time it's ever been that bad. Same excuses every time.
The One Billion Dollar Loan to Trump, handled by Justice Kennedy's son, makes the negotiated arrangement with Kennedy to retire now explicit quid pro quo corruption.
This is literally Unprecedented in American history.
Kenndy's arranged retirement allows Trump to choose a justice for the Supreme Court who will tacitly - even explicitly - agree beforehand to block every indictment of any criminal act or violation of constitutional law by Trump, as well as preventing his possible impeachment.
Any Supreme Court appointment by Trump is an outright overthrow - a negation - of the US Constitution. When the legislature and the courts conspire to dismiss vast tracts of the fundamental laws upon which this nation was founded, the entire constitution is rendered meaningless.
4
A persuasive depiction of the looming problem, but short on practical tactics, perhaps because there aren't any. At long last, I'm done being drawn in by my fellow liberals raising alarms after the horse is out of the barn. If nothing else, it's a waste of energy. Where were Obama and the Dems when Garland was stonewalled and Russia was in the act of meddling? Where were the pink hat knitters and resisters during the '10 and '14 midterms? At some point it's hard to muster sympathy for the disinterested, the timid, and the lazy.
6
Yep. Spot on.
They love "Resist" stickers and Pink Hats after the fact. Ya know, cultural "In Group" signifiers and all. Many of these same people voted for Bernie and are outraged now that things are getting this bad!(?)
It's a liberal- (white) people thing, They like an underdog, root for the little guy, so when the world continuously stacks up against them due to their lack of voting or voting correctly (meaning one that will actually count in the big picture) they can always print off some more bumper stickers or shame people in restaurants. Just don't ask them to vote in the first place - because many say the systems broken, burn it all down, etc.
Public shame away. Voting is the only thing that changes anything
3
Well put, Blair. As I asked below, assuming you are a Democrat, where are the adults in your party? Good luck in 2018 and 2020. Trump was born on a lucky star - he is lucky in his enemies.
2
I think this is all setting a dangerous precedent. Yes, it was outrageous for the Republicans to not even consider Garland's nomination, but I can't agree with the Democrats employing the same tactic (or using the reasoning that the author of this article suggests). This will all just lead to another argument down the road when (God willing) we have a Democratic president in 2021, and in the midterm elections after that, another Supreme Court justice steps down, the president wants to appoint a new justice (as the Constitution directs) and then the Republicans cry bloody murder saying we should wait till after the elections, the Democrats say we should appoint a new justice immediately, and we're back where we started. Don't get me wrong--I despise Trump, but we are a nation of laws, and the way democracy works is that sometimes you win, sometimes you lose. It seems no one in Congress wants to be an adult, and taking the high road is considered simply impossible. Will the sheer hatred between the parties in Congress never end.
2
This is not politics as in the past as we all wish it could be. We were hacked and the person who is being investigated as the ringleader is now gleefully in charge of us. We need some kind of stop gate and the laws need to help us here.
1
Professor Berman, every argument you just articulated to us through your column is logical, rational, and very likely what would have been heeded in another time. However, as we have seen by Trump's blatant abuse of all things civil and very likely legal now and in the past, we are teetering on the brink of not only a theocracy but also an oligarchy. These are far from normal times. In fact, our political reality is both ominous and dangerous. Because of this administration and a complicit and questionably ethical Congress, our democracy is eroding upon and within the ground we walk. We are fast becoming a country which defies the rule of law and arbitrarily creates new laws which are not for the whole but rather for the few, whether they be the fanatical religious right, the bigot or racist, and/or those who lust for power and the almighty dollar.
2
Can some criminal focus be put on Kennedy's retirement right now? Is he being forced to retire? The connection to Trump who is under Federal investigation: Deutsche Bank has loaned Donald Trump over $2.5 billion since 1998. Deutsche Bank was fined $630 million for a $10 billion Russian-Money Laundering scheme in 2017. Retiring Justice Anthony Kennedy’s son was TRUMP’S BANKER at Deutsche Bank. This appointment happening 4 months before an election should be paused and investigated by the FBI.
8
Your desperation is showing! The moment the American left stopped crying over the resounding electoral college defeat of Hillary Clinton, they declared itself "the resistance" and has sought to undermine every move Trump has made as President. Now the left is in a full-out infantile temper tantrum because Trump has the Constitutional power to appoint a Justice to SCOTUS. The tantrum is worse because the left itself blew up the means through which a minority party can stop a nomination.
Arguing with anyone "mid-tantrum" is always a fool's errand, but the plain truth is that all of this is an effort to nullify the election. Given the sharply divided state of our nation, which truly is a battle for the soul of our country, we can count on a string of highly unpopular chief executives, at least until there is a consensus as to whether we be will a politically correct socialist collective or a republic of free individuals. That consensus is far from emerging. I will be every bit as unhappy as you are if someone like Elizabeth Warren or Corey Booker gets elected.
Is the left's dislike of Donald Trump really worth turning our country into a country where people honestly try to invalidate elections when their side loses? I hope not!
It's time for the left to grow up, stop the tantrums and witch hunts, and to pursue your cause by winning an election, including the Constitutionally prescribed electoral college.
8
It's time to get over the fact that most people simply dislike your chosen candidate. Opposition by reasonable people to the actions of a dictator-loving quisling like Trump is not an effort to "nullify" the election.
1
Opposition is one thing, efforts to prevent him from exercising the powers of the office is another matter altogether.
BTW, Trump was not my chosen candidate. It's just that I would have voted for almost any other living being to keep HRC out of the White House and Elizabeth Warren out of the Cabinet. I also cast my ballot with the clear understanding that the future of the federal judiciary was at stake. Indeed, if I had my way, the Senate would cease all unnecessary business and turn itself into a 24/7 judicial confirmation machine.
The chosen judge could recuse themself if the case was being heard. But this sounds like a poor approach to blocking a nomination.
1
But the justice would have no reason to recuse himself. Simply being nominated by a President whose case is being heard is not enough. Trump would have to hint at a quid pro quo (and that's not actually far-fetched!) for the justice to feel the need to recuse himself.
Totally absurd argument.
Not only has President Trump not been charged with any crime, no crime has been proven to have happened.
What has happened to liberals empathy for people being unfairly singled out as criminals?
I guess they make exceptions for political opponents.
6
Why would any crime be "proven" at this stage in the process? The investigation is still ongoing. That's why the author carefully says "possible" crimes. Not that Trump's behavior makes him look innocent in the least...
1
As ill-timed as Mr. Kennedy's departure will be, giving immoral Trump the upper hand may prove disastrous for the rule of law, given the continuous conflicts of interest generated by the current demagogue in-chief. He'll most likely nominate somebody loyal to him rather than competency and an open mind and a social conscience where justice shines not only for the rich; one does not have to be an enemy of the rich while a friend of the poor and the voiceless even though the latter must take preference. Trump's social distance is too large to grasp this; besides, he has no scruples, so may elect somebody close to his heartless gut, a 'crime' really.
2
The court is already compromised. Fake Justice Neil Gorsuch should recuse himself from any cases involving the president. Anyone nominated by Trump must agree before confirmation to recuse himself from cases involving the president.
3
Not too many presidents get to appoint 5 justices, and most legal questions would be answered similarly by most justices. While the president can stock the administration with the corrupt and the inept, he cannot do the same with the Supreme Court.
Hey why don't we let an ultra-liberal law professor unilaterally add new clauses to the Constitution?
What could possibly go wrong?
The fact is that checks and balances remain firmly in place. And elections continue to happen on schedule. There is no risk of "autocratic lawless rule". That is complete hyperbole characteristic of the "unhinged" left.
11
This is just succor. Best not to mistake it for reality.
4
Both Mueller and Rosenstein said Trump was not a target of the investigation.
Did the good professor miss that fact?
This is desperation,pure and simple.
6
He's not a target yet, but he's still a subject of the investigation. That alone is disturbing. After all this time, Mueller has enough evidence to not remove Trump as a subject. A subject can become a target at any time, when charges are ready to be filed.
5
Rosenstein 'reportedly' said that in April. With Mueller leaning on Manafort, Cohen, Stone, a plea from Flynn and subpoenas from Deutsche bank - which reportedly loaned Trump 1$ billion - some of which he still owes now - things can change.
2
Actually it is desperation on the President's part due to the Huge Blue Wave that is appearing to pop up out of seemingly nowhere. He is realizing that he may well lose the House AND The Senate, and if that happens then there are a multitude of crimes he is going to have to answer for.
Crimes such as his continuing lies, defamations and attacks on people's character, breaking the Emoluents Clause of the Constitution and directly making profits from being President. Even to the point of getting major concessions for his Own companies while he makes sure that a banned Chinese company is allowed to do business....surely there is no billion dollar connection, right?
Trump actually has LOTS more of these reasons to fear, and that is why he is so desperate to stack the Court in his favor.
2
Whomever Trump appoints to the SC should recuse themselves (the president's favorite topic) from deciding any case involving criminal wrongdoing, financial corruption, abuse of power, etc by this president. That includes Gorsuch as well. If they don't do it and Roberts doesn't insist, our government will have lost all legitimacy and accountability.
2
The GOP already stole a presidency and a SC seat & didn't bat an eyelash in the face of our collective outrage. You really think McConnell has any intention of being reasonable? Seriously? If Democrats wanted to hang onto the SC, they should've won in 2016.
7
"Collective" would imply everyone and that is not remotely close to the truth. Your statement should read "our collective left outrage".
1
This ship already sailed
Gorsuch is Trump’s man on the bench
Kennedy is his BFF
Thomas and Alito will never go against a conservative president.
Roberts is the wildcard. But unlikely to break with his conservative colleagues if nothing else but to not blow up the court
Between the power of the pardon and the hypocrisy and mendacity of the conservatives Trump is here to stay, including a second term.
Mueller has indicated that Trump is not the subject of the investigation
4
Weeks ago, Mueller indicated that Trump was not a target of the conspiracy investigation at the time. Trump is going to be the main subject of a report on his own criminal obstruction of justice, though, and he still has a chance to make the front page in the conspiracy report when it comes out next year.
1
But he is a "subject" in the investigation which can lead to becoming a target.
1
No, he said Trump's not a target. He is a subject. Subjects can become targets at any time. That is, except maybe presidents, which could be why he hasn't been called a target yet.
1
I've been waiting for this opinion to be expressed and published. It is clear he was afforded a first justice pick opportunity following unjust, undemocratic and I'd add frankly immoral methods courtesy of a racist and un-American senator from KY.
The upcoming pick may be additionally tainted with corruption such that any decent and thoughtful American would want to wait, no matter what their affiliation happens to be. However, decency and thoughtfulness hardly exist in or around the current president, his supporters and his collaborators, so the country will likely be further impaired.
2
Why waste the ink. People like Trump and McConnell don’t give a rip about any of this. Trump will nominate some horrible, troglodytic, right-wing ideologue and the Senate will confirm the nomination about 51-49, unless some Democrat like Joe Manchin decides to jump ship again. Would the people of West Virginia really hold it against Manchin if he voted against Trump’s horrible appointments? Activist right-wing judges are certainly not the friends of coal miners. They’re much more likely to vacation on the French Riviera with the likes of Don Blankenship.
1
Well said, professor. Thank you.
Democrats: keep obsessing about this for the next few months. Forget about formulating any policy positions - as it is you'll be left with "democratic socialism". You will guarantee yourselves a smackdown in 2018 and another in 2020.
Are there no adults in your party?
7
How about supporting the rule of law as a policy position in contradistinction to the policies of the President?
1
What do Republicans stand for? I’m really trying to figure it out, and can’t find a non-hypocritical answer.
1
Thank you for providing a justified rallying cry for the postponement of this Supreme Court nomination. I hope it will prove effective.
3
The dichotomy is that Trump, as president, must be allowed to to do the task that he was elected to do. The rub is that, away from the travails of governance, there is a an investigation of national and international importance in a Damoclean dangle over his head. Clearly, the question is how is one affecting the other?
Republicans are rabidly defending Trump because he is the symbol of an agenda that transcends the national good. This is incontrovertible as a statement because how can any conscionable political party actively disparage a vital investigatory process that will examine the very fabric of America’s democracy and national security? Robert Mueller is the most important man in the United States, more important, infinitely more intrinsic to the future of America, than Trump himself. Mueller could single handedly wash away the stains of this presidency and his complicit party forever. America, however, will be transformed: the conservative agenda, as presumably harmful as it is, shredded, and the liberal agenda left to mature into a functional mantra that restores confidence in the idea of America which currently has many radical interpretations. This is, probably, the best case scenario.
I wish the US well. So much depends on one man, and it’s not Trump.
6
And pray tell Professor, where exactly in the US Constitution does it suggest this? I do believe that the legal theory, innocent until proven guilty, is also in play, or perhaps you've confused US law with the law in France.
Professor Berman is yet another example of a legal scholar who has decided that outcome is more important that the process. He would no doubt ignore legal precedence if it doesn't get him to the legal conclusion he wants. This is why the Federal Courts are is such disarray. Ignoring the history of legal precedence and allowing the specter of politics to enter the legal arena is a sure way to corrupt our judicial system.
8
And not a word in your remarks about the process which gave us Neil Gorsuch. One wonders why. Not.
3
My article was not about guilt or innocence; it was about all the constitutional questions that surround the investigation.
I think it is time for a Constitutional amendment requiring a 60-vote, or perhaps even a 2/3 approval for federal court justices. The current status insures that political philosophy is a large part of why nominees are chosen, often for primarily partisan reasons. This will end with the subservience of the courts to the Executive branch. Requiring a super-majority for confirmations will force nomination of more centrist jurists. When the courts are packed with first one political extreme of philosophy, then another, the stabilizing influence of the courts on the law is eroded. Ultimately, the stability of the country depends on 3 "separate and co-equal branches" of government. Court appointments skewed to reinforce one party's philosophy and insure that party's rule will result in autocracy replacing the rule of law. Requiring a super-majority approval for federal judges would enforce nominating jurists centrist enough to attract support from both (or all) political philosophies.
5
You can thank the Democrats for trashing the 60-vote requirement. 60 was the standard until the Democrats wanted to go without gaining the support of Republicans.
What goes around comes around.
5
Exactly why I think it needs to be changed back, and in such a way that it can't be changed at a whim of whatever party wants to push it's ideologically-pure jurists through.
Good luck with that. The GOP has completely abandoned any pretense of law, ethics, precedent, fairness, honesty and decorum. They are the true enemies of the people (including those that vote for them), not the press.
26
The Haberman/Liptak scandalous investigative expose appearing in the Times today provides a much more compelling reason why any Senate confirmation hearings for a replacement Supreme Court justice must be delayed, pending a thorough investigation of potential wrongdoing in the Trump Administration's secret influence campaign to effect an early retirement date for Justice Kennedy, before the midterm elections. It apparently well succeeded.
This unethical, if not illegal, behavior could further involve White House collusion with the Republican Senate leadership, particularly Grassley and McConnell, and even a possible quid pro quo implicating Kennedy through his banking executive son, whose bank once loaned Trump's business a vast sum of money. Democrats in response to this crucial issue have to be willing to play some serious "hardball", resolutely demanding that in the absence of convening this essential investigation, all measures will be vigorously pursued to halt every Senate legislative activity.
14
Trump should nominate Merrick Garland, a man both sides agreed was a superb, evenhanded jurist when Obama nominated him. That would be one way to ratchet down the partisan divide and invite more sanity and more attention to the legality of the laws the SCOTUS presides over.
But, No. Trump would not. The GOP and the Heritage Institute wouldn't let him. And compromise, olive branches, and cooperation are alien to Trump's nature.
Think about it for a minute as a thought experiment. Were Trump to name Garland, we might all have a breather to consider where all Americans are at this time. It would be a moment of sanity and a time to reset this wild, radical turn to the right and to authoritarianism.
96
And then we woke up and realized this was only a dream. Trump is still president and the only people standing in his way are GOP Senators beholden to the same power brokers. They cowards will toe the GOP line. This will get far uglier before it ends. There will be riots when Trump pardons himself. Protests will become violent. Trump will declare marshal law, suspend elections, habeas corpus (citing Lincoln!) Our only best hope is enough of the electorate acts in the upcoming midterms and takes both houses of the congress away from the malignant GOP. Or history will judge us as harshly as pre-WWII Germans.
The democrats aren't taking control of the House or Senate in November so they might as well go ahead and get on with the confirmation. In fact, if the Republicans pick up a few seats in the senate waiting until after the midterms would be a mistake on the Dems' part.
5
Filling the vacancy before the midterms would probably take a lot of hot air out of democrat's campaigns. This whole campaign for a delay is just another campaign to turn out democrat voters who would otherwise stay home and light up.
The idea proposed assumes that any new USSC justice will not be independent. That is nonsense. In law school, the idea is to come up with an argument, any argument, as a learning technique. Some lawyers forget, or don't understand, that it is a school technique. In the world outside law school, it is more productive to be plausible or else one makes himself irrelevant. This column is not plausible.
7
These are arguments that are valid in a functioning democracy. I don't see how they apply here.
14
Yes, it appears for political expediency that GOP are willing to let the wannabe dictator have his way; sort of reminiscent of Italy (1920s) and Germany (1930s) in that weak political parties become dominated by tyrannical madmen. I didn't think I'd live to see the history I've read about be repeated in this country. But absolute power does that. There goes the beacon of democracy.
6
This is an unbelievably sad piece. Behind the specific message Professor Berman writes is another.
For several decades now the Legislative Branch has allowed the Executive Branch to expand its powers and to create regulations that give it unprecedented opportunities to observe and intervene in the lives of US citizens and to act without checks abroad, ending the lives of foreign citizens in their own countries for "imminent" acts that might go against US interests.
That Trump has appeared on this scene at this point in time is definitely not a positive development, but it underscores the importance of having a functional Legislature that can provide and maintain a legal framework that goes beyond narrow partisan interests.
Democracies are so strong they can only die by committing suicide, but yours is well on its way to doing just that.
88
Yes, this is an opinion and everybody has one. Fortunately, however, the United States operates on the basis of the Constitution which does not allow for such fanciful thinking. So typical of the left to view the world as they want it to be rather than how it is. Trump will appoint irrespective of the hue and cry of the Democrats and with their majority, Republicans will likely approve that selection. To the victor goes the spoils!
12
"To the victor goes the spoils!"
Except you conveniently forget that there is a legitimate question about whether or not said Victor is himself a legitimate victor. Whether or not YOU think it's a legitimate question is beside the point, because to a majority of Americans polled on the matter, statistically, it is.
3
"Fortunately, however, the United States operates on the basis of the Constitution...To the victor goes the spoils!"
How do explain, then, the refusal of Senate Republicans to provide advice and consent to Obama's nominee to the SCOTUS in 2016? Surely Obama could be considered a victor (2X POTUS winner, and, unlike our current President, prevailing BOTH times with a majority).
7
How exactly does “to the victor goes the spoils” mesh with our Constitution?
2
One hardly knows where to begin, given the absurdity of this argument. Perhaps a rhetorical question will be enough:
"Should President Bill Clinton have been allowed to nominate any Supreme Court Justices (Ginsburg and Breyer were picked by him) while Ken Starr was investigating Clinton?"
OK, a follow-up rhetorical question:
"If President Bill Clinton had not been allowed to nominate any Supreme Court Justices while Ken Starr was investigating Clinton, should someone else have picked them (and, if so, who?), or should those vacancies have just been left empty until Ken Starr was finished?"
OK, one more – and forgive me for stating the obvious:
"If the pendency of an investigation is all that's required to prevent a President from picking Supreme Court Justices to fill vacancies (regardless of what the US Constitution says about this), even if no charges have actually been brought, won't a President's critics have an incentive to demand an investigation whether or not one is warranted?"
19
Nice job changing the subject. Did Clinton admit to obstructing Justice? Because Trump did. That difference matters.
2
These are truly rhetorical since President Clinton made his two appointments in 1993 while the Starr investigation started in 1994.
1
I have responded to this previously. The Whitewater investigation hadn't begun when Ginsburg was appointed and had only just started when Breyer was appointed. There was at the time no investigation of criminal wrongdoing by the President, either while in office or during the campaign and none of the same sorts of potential constitutional issues.
1
Interesting, but a non starter. Trump is President with full Constitutinal authority until he isn’t. He gets to nominate and with the advice and consent of the Senate confirm Supreme Court Justices despite any notion of his potential Impeachment and conviction for Constitutional High crimes or misdemeanors. I do wish it were different in this case but there it is.
13
The autocratic government has already happened. The Republican party has stolen the US government. They stole it by gerrymandering, voter repression, stopping the previous presidents appointment and other action. The actions by the republican party has allowed them to take over state governments where they received less than 50% of the votes but still control the state legislators.
The Republican party has essentially stolen the electoral process so they can ignore the majority of people and use their stolen power to stay in power. They are stacking the courts with judges that agree with them so that they will not be ruled against.
This sounds like an autocratic government to me. A political party taking control of the government by subjugating and repressing the votes, being able to stack the courts because they stole the ability to do so, and repressing anyone (voters, press, law enforcement, protestors, minorities, women, scientists) that stands in their way.
137
George W. Bush's entire time in office had a stain upon it. It was called the Supreme Court appointment because they, rather than the Electoral College or the people selected the president.
This presidency's stain is the way it's continuing with no checks from the GOP, what James Comey did in October 2016, and the fact that Trump did not win the popular vote.
But as long as the GOP is in power Trump will get what he wants. The Greatly Overrated Penguins care more about power, money, and winning than they do about truth, justice, liberty, or America. In today's America corruption wins not the needs of the many, not compassion unless it's for the uber rich, and not 99% of us because we are not rich.
36
Mid Terms are not the same as Presidential Elections,there will be no change in who makes the next appointment to the Supreme Court.And there is no basis for believing that Conservative Justices are more prone to support an expansive Executive role since conservatives favor small government,particularly at the Federal level.Also,since the only findings by Mueller which may merit legal action are criminal ones and most likely related to Trump the businessman,it is unlikely to involve these justices and even if it does,is unlikely to mean a more permissive stance by those he appoints to the Bench.
6
Potential jurists on the list for SCOTUS come from a cadre of known right wing ideologues and loyalists, not just to the GOP agenda for the US, but to Trump and his agenda to turn this country into a theocracy and a kleptocracy. They are a known quantity and have agreed, in advance, to hew to the party line. Gorsuch shows every evidence of this and the next candidate will likely be even more doctrinaire in shooting down laws that would ameliorate climate change and environmental change. Betsy DeVos will continue to destroy public education, push prayer in schools, and drop laws which protect disabled children, LGBT children, and enforce more authoritarian kinds of teaching.
That is just two examples, so I find Observer's projections inconsistent from what we've seen so far from the Trump administration and it's alt. right racism, misogyny, and homophobia.
1
Mr Berman
I agree with you that this United States and what's left of our democracy is under attack, but I am also very alarmed by the responses to your opinions , it seems that a good many of these people like living under autocratic rule.
If this is true, the United States as we knew it is lost for
generations..
I will not live to see the continued destruction, I am just very saddened for the world.
67
What a joke, first they won't be doing that since impeachment has nothing to do with the court and if it happened Pence would pardon the president immediately. Now if Mueller had anything he would have used it already, and he has had more than enough time to find anything that was there. Just more stupid progressive logic twisting the constitution.
11
vulcanalex, he has already got guilty pleas from Trump's deputy campaign manager and 1st national security advisor and has indicted 20 people including his campaign manager and several Russians. The investigation has gone on for about 1/5th of the time of the Whitewater investigation and cost far less.
3
Galactic case of wishful thinking. This kind of wishful thinking should contain a warning. Many may not recover from this fantasy of stopping Trump. His appointment is going to hit them very hard, so hard I would suggest some safe spaces.
2
Yet another prime example of the Dunning-Kruger Effect.
1
I agree 100% with this argument, however everybody knows that since the Republicans, and particularly Mitch McConnell, have no shame and care only about partisan politics there will be no delay in replacing Justice Kennedy.
I'm afraid the most we can fight and hope for is a justice whose first concern is truly the law and will judge on charges that may arise against the president or his associates on the facts and the law. I know Trump's nominee will disagree with me on most decisions, but I truly hope that she/he will be impartial when it comes to presidential justice. If that is not the case we are truly lost.
21
Republicans are blinded by their authoritarian impulses. Based on the most recent elections, autocratic decisions are being made in favor of a minority of citizens. This is not peacefully sustainable. If indeed, the majority of the people feel powerless and the ballot box is no longer an option, then civility and thoughtful, rational comments such as these will be tossed aside. I’m more concerned about the uprising and violent backlash to come than what is happening today.
20
The Mueller investigation is one thing. Remember also that the State of New York is alleging that Donald Trump cannot even run a charitable foundation in accordance with the law. He settled a fraud claim against his fraudulent university for $25 million. The audit of his tax returns apparently never ends, and he approved policies that grab children from their parents at the borders (a likely violation of international law) and now says that due process of law does not apply to people arriving at US borders. That's a violation of the oath he took to uphold the Constitution. Such a President is not merely unfit to appoint the judge expected to determine the validity of his own actions. The breadth of Trump's unfitness to make a lifetime appointment is broader than the Mueller investigation, the Access Hollywood tape, Stormy Daniels, his mocking of Gold Star families and the disabled, and on and on, regardless of how many "good people" at white supremacist rallies support him.
182
A Trump appointee simply weakens the moral authority of the SCOTUS. Rulings would become impossible to enforce and the fragile relationship between the People and the Justices would be damaged for a long time to come. Which would further the Trump-Miller-Bannon agenda to destroy the administrative state and diminish the value, power, and reputation of government. Trump's presidency has met that already.
23
Since Justice Kennedy's son was Trump's banker at a bank suspected of using sketchy Russian funds, I wonder if Kennedy is stepping down because Russia has compromising material on his son. It is a way of permanently recusing himself from a position that could require compromising his professional integrity, if not actual treason. It is a recusal that does not require explanation: he's just no longer a Justice.
164
I wondered the same thing. Sounds like more dirty laundry.
Let's say your idea is adopted (unlikely). When there's a Democrat in the WH, what's to stop republicans from starting up an investigation - however spurious - and thereby preventing any appointment of Supreme Court Justices?
5
This a great argument. But, you can be sure it fall on deaf ears for both President Trump and Senate Majority Leader Mitch McConnell. The "if, and only, if" exception is if two or more Republican senators like departing Sens. Bob Corker and Jeff Flake and also John McCain agree with this argument that no person should be appointed to the high court until Mr. Trump is cleared by the Special Counsel. The best the Democrats can hope for is that tow Republicans will agree. If not, they probably should boycott the entire charade as a violation or "obstruction of justice."
5
"Otherwise, there will be a stain on the legitimacy of this nomination, on the performance of whomever is confirmed and, even, on the Supreme Court itself."
By all indications we have "crossed the Rubicon," Trump does what he wants all the time and to date hasn't been admonished in any way. In fact, his approval ticks up as he "stands his ground" against the evil democrats. McConnell is laser-focused on putting a reactionary on the Supreme Court.
Unless the midterms offer a "blue tsunami" the experiment in democracy is over.
19
IF there is a blue tsunami it's democracy and if not it's not democracy ?????
I'm sorry if I wasn't clear. Vote Democrat for democracy and Republican for reactionary.
Trump supporters - from Jeremiah:
"They have eyes, but they see not, ears, but they hear not..."
McConnell was wrong and his idea is still wrong today. The other idea, that Trump should not fulfill his constitutional obligation because such a judge might one day sit in judgement over him makes no sense at least because, in such an event, that judge would just recuse himself/herself. All of these calls upon Trump not to fill Kennedy's vacancy smack so obviously of partisanship it's pretty ridiculous.
6
Really! There is no such law. Trump should kick the democrats hard while they are down.
7
And that is why the GOP is on the way out. Leaders who love this country and truly serve this country don't attack the other party with extreme vengeance. Bullies get their due in the end.
Boy, you sound just lovely. Would you consider for a minute if a Democratic president, under investigation for collusion and obstruction justice, were to appoint a justice how you'd feel? The shoe may eventually be on the other foot.
Trump rushing to put a new justice on the Supreme Court looks like the most corrupt thing he's done so far.
That nasty hearing in the House yesterday where his toadies insulted Ron Rosenstein should put the fear of God in all of us.
There will likely be a House attempt to impeach Rosenstein soon, followed by Trump firing him and replacing him with someone who will fire Robert Mueller.
The result would be a coup against the United States by its own sitting government. Think that's impossible? Just wait.
269
Just who would make this coup? A bunch of unarmed progressives against the military?
5
Since Trump is edging out Gen. Mattis as not being one of "my generals", you must factor in that, if the chaos gets to serious and the attacks on dissenters and citizen activists get out of hand, that the military might take him down.
Military junta, anyone???
No! My argument is that Trump and the GOP are in the midst of staging this coup by refusing to obey the law, the Constitution and attempting to discredit the free press, the intelligence agencies, the State Department and more. Trump and the GOP are transforming this country from a democracy to an autocracy happening right before our eyes. Swapping our democracy for an autocracy is a coup, even though the GOP hold power. I don't remember any voter voting for Trump because he said we needed to switch from a democracy to an autocratic form of government. No one voted for this -- but we're watching it happen!
Well it looks like Trump will be found innocent of all charges. The vacancy in the court will be filled by Trump. The Supreme Court will be conservative for the next generation. The Democrats need to get over it!
10
Professor, you are talking about a man who would appoint Rudy Giuliani or Michael Cohen if he could get away with it. Please, don't waste another keystroke .
8
boy, are you ever right.
14
Trump’s pick now will judge cases reaching the Court about him such as a self-pardon for crimes that Mueller might find especially about Russian collusion and obstruction of justice. *Just let that sink in.* Several Red state Democrats running for re-election will likely cave, just like they did for Gorsuch, so once the nomination hits the Senate, the person will be confirmed. *The only way to stop this train wreck* is for 2 GOP Senators to go “Independent caucusing with the Democrats” to flip control of the Senate to buy time to at least January. Schumer as Majority Leader would be 100% empowered to do what McConnell did in 2016. We need McCain, Flake, Corker, Collins, Murkowski to put country and democracy before a GOP party tied to Trump to save our nation from fascism.
12
We will need to do better than just delay Kennedy's replacement. We need to reverse the installation of Gorsuch. For extra credit, feel free to deport back to Russia any and all involved with this imposter's installation. Kentucky doesn't need a senator, since it puts McConnell in the place where a Senator should be.
6
How would you propose to do that? Another fantasy impeachment for no logical reason other than you want it?
4
Fat chance!
8
Give me a break.
You Demos will dream up any reason possible to deny Trump the pick.
Just silly.
8
"Add to this sweeping institutional power a president who refuses to acknowledge any checks on his power as legitimate, whether those checks come from the courts, the legislature, the media, the government bureaucracy or his political opponents. This is the perfect recipe for autocracy. In such a world, the importance of checks and balances has never been greater."
As you know, Professor Berman, the only legitimate checks are the courts and the legislature, since those are the only ones so appointed in the Constitution.
If you are going misleadingly to add media (they oddly declared Trump illegitimate the morning after the election), government bureaucracy (you mean Strzok?), and political opponents (wow!), you might as well add Trump's wife, his barber and Kim Jong Un.
With all due respect, one of the many instances where your hyper-partisan article makes no sense.
9
Yes and when he disagrees with the courts he obeys them until they are reversed. Sure he Tweets his complaints, but his actions show he complies unlike say Obama.
7
I don't think we should carve out any exceptions for Supreme Court nominations. If you are a lame-duck, lame-goose, or lame-dictator -president just stick to the constitution and nominate justices until you are taken out of office on January 20th. By the same token, the Senate should advise and consent/reject anybody the president nominates at all times.
The real issue is that we have voters who
1. Voted for people like Mitch McConnell, who believe in partisanship and power over rule of law
and
2. Voted for a president they knew would be mired in a major scandal from the start, and don't care
32
Good points, but people like Nancy and Schumer among other Dems that vote the party line without exception.
3
Not going to happen, silly argument.
10
We need a way to save the supreme court from being another tool of partisan politics. The accepted notion that either party tries to stack the bench with "their team" for as long as possible is totally antithetical to what the framers of the constitution had in mind. This is meant to be a court of nine highly esteemed moderate judges who care about the country more than any party or president. You simply cannot love American democracy and support what this has become. What is the solution? Perhaps requiring a super majority in both houses for approval coupled with some penalty for extremist tactics?
Even a staunch GOP supporter who really cares about the constitution would agree with this.
2
I seem to remember a famous Dem who when the supremes did not do his bidding threatened to expand the court to get his way. It was a long time ago and that president is universally considered one of the best.
1
First of all, even assuming that impeachment or litigation over any findings of the Mueller investigation that involve Trump ever makes it to the Supreme Court, the justices appointed by Mr. Trump can (and should) recuse themselves. Second, who is going to decide whether a President is or is not under a "cloud" of investigation so as to preclude him/her from nominating someone to the Supreme Court? Trump would deny that he is a target of the Mueller investigation.
I understand your frustration that there does not appear to be an easy way to prevent Trump from naming the next Supreme Court justice but pinning your hopes on a "cloud of investigation" rule is just pie in the sky.
13
I look forward to seeing who Mike Pence nominates after Trump is impeached and convicted. While you have a reasonable argument, the outcome would likely be a far more conservative nominee who would be even more likely to overturn Roe.
2
The Trump admin and the Republicans in power don't give a whit about the any "stain on the legitimacy of this nomination." Trump does not operate with shame nor with ethics, so we need to stop appealing to any supposed decency in this political climate. It's time for civil disobedience, for protests, for action.
Polite responses are completely useless. Heck when the biggest players countering Trump are TV comedians ya gotta wonder what the heck the Democratic establishment is doing.
8
If this argument gets any traction, I'd be stunned. And frankly, I'd like to apply this to Trump's "right" to select Gorsuch.
1
Professor Berman: Please wake me up when the Constitution gets amended the way you’d like it to read. How about providing us with some example wording for the amendment?
12
Blah blah blah. Give it up. Trump won the Presidency and the Republicans won the Senate. Both were promising to do exactly what they are going to do. If you want to control the outcome you have to win the elections.
10
Amen, but dream on. Republicans make snakes and weasels look benevolent, humane and wise. The gloves are OFF. If we Democrats continue to compromise, play fair and be polite, we are finished. Fight like you mean it, TO WIN. Seriously. NOVEMBER.
19
That's the beauty of Stage 3 of Grief (Bargaining).
After nearly 17 months, progressives are still bantering about hoping they can concoct some way in which their grief ends, and their nightmare is over.
This is known as the Joe Biden Rule, and it was confirmed by Harry Reid.
That's the problem when progressives get in charge. They never think they'll lose again because the Arc of History is on their side...or some such thing.
In case Mr. Berman hasn't been paying attention (you certainly won't find evidence of it on these pages), the only one's who are going to be found guilty of conspiring with the Russians are Hillary Clinton, Susan Rice, Samantha Powers, Andy McCabe, Peter Strozk, Bruce Ohr, Glenn Simpson, Christopher Steele, Brennan, Clapper and Cheryl Mills.
The only innocent boy scout in the group is Jim Comey, who got played like a cheap fiddle. Rosenstein is also innocent and having been duped..is trying to protect the integrity of the FBI by hoping beyond all hope that Republicans lose control of Congress this fall.
He's not sharing what he knows because it'll be 100x worse than Watergate.
When we're done with this, Sandersnista's are going to want the scalp of even Barack Obama.
7
Great idea. This precendent would ensure no one is ever named to the SC again. next argument.
10
Rule of thumb when you ask the question "what will this administration do?" Think of the most immoral/amoral action, and presto!, you have your answer.
101
This column states the obvious, but somebody had to do it. For that matter, Trump should never have been able to appoint Gorsuch.
5
Once again the Leftist, Democracy denying, Constitutional
rights denying New York Times publishes an annointed opinion piece (its not "op") proving that yes, it really is those things.
Dear NYT, and Prof. Berman, the Constitution of the USA gives people the right to be considered innocent until proven guilt. For the President, that means impeached AND CONVICTED.
Did you offer up the same demands for Pres. Clinton while
he was in process of being impeached? Let's see the editorial you wrote saying that!
Otherwise, your words ring even more like the pure partisan attack they are.
7
See my other replies for why this is distinguishable from Clinton. And further this has nothing to do with presumption of innocence. Of course Trump is presumed innocent. The issue is who decides on the constitutional issues surrounding the investigation, issues I list in the article.
1
Rosenstein will not produce enough documents, will be impeached, Rudy Giuliani will become Attorney General, investigation over, problem solved.
You're one year and one justice too late. This is a silly argument. A seriously compromised President needs to have his or her judicial nominee approved by the Senate. That is the check on the President's power. I know you don't want Trump to pick Justices and are simply grasping at straws. The fact that the Democrats are inept politically and didn't foresee that going nuclear on the filibuster would blow up in their face doesn't mean we get to invent new extra-Constitutional benchmarks for Mr. Trump.
8
What do all of you leftists do when bad news breaks, get on a Zoom call and share talking points in a Slideshare? Booker yesterday, Berman today, that nutty bartender who won in New York tomorrow? Yawn. Here's the thing: a Trump nominee is going to be confirmed, and it will happen before the midterms. You know that, I know that. Here's another thing, if the president was a Democrat under investigation (and believe me, Republicans will not forget how Trump has been treated, nor should they), I doubt I would here a peep about waiting to nominate. Nor would Democrats embrace that position. So let's call this essay what it is, hypocrisy dressed up as principle.
10
I am now more scared than ever.
The man is truly a menace, and has already caused incalculable damage to the nation. Neither he nor McConnell are fit to serve, and I have little doubt they will continue to prove that in every despicable way they can, and will be gleeful about it.
7
Tell it to Democrat Bob Menendez. The author's suggestion is politically self-serving and nonsensical. The Democrats are shifting to making imaginary rules up as they go along. Liberal outrage over everything Trump is unbounded, leaving them unhinged. They cling to their professorships, open borders, taxes and abortions. Meanwhile media fear mongering has reached new heights even as the economy chugs along and prosperity reigns. Liberals should really take a step back and take a deep breath.
9
This is ridiculous. We're dealing with crooks here - Trump, his enablers in Congress, and all of his supporters. He could shoot Mueller on 5th Ave. and it wouldn't make a difference. There are no ethical or legal considerations. He'll do what he can get away with.
7
All this is precisely why Trump and the Republicans in Congress want to make sure they have a complaisant replacement for Kennedy on the SC. Then with the presidency, Congress, and the SC all in the bag, the GOP control of the country for the benefit of Trump and other looters and stooges of Putin can continue indefinitely.
13
"By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing."
That would be liberal partisan logic. By your logic the President should be in purgatory doing nothing as our elected president until the opposition investigators can sufficiently complete preparation for their intended coup d'etat. I suppose the liberals, as usual, are eager to dispense with the American notion of "innocent until proven guilty". It is after all, just a notion. It's not really important. Most people who are being investigated, but not charged, supported by actual evidence, are allowed to continue business and their lawful activities. Perhaps the professor should be suspended from his teaching duties while he is being investigated, for whatever.
The professor is a law professor. This is what happens when partisan politics infects a person's thinking.
6
This is not an "opposition" investigation. It is an investigation headed by and authorized by Republicans (Comey, Rosenstein, Sessions, and Mueller himself).
1
I share the author's sentiments, agree with his logic. But I refuse to despair. It is possible, is it not, that the next Justice will come to his/her own conclusions as opposed to being a toady for the executive? I am not naive; it could be that the nominee is chosen for an expectation of sycophancy. But it is also possible that she/he will exercise both professional as well as personal judgement. Again, I refuse to despair; hope lies with the American people.
1
I wholeheartedly agree. I also wish the GOP and the DNC had the good sense to prohibit anyone under an FBI investigation from being nominated for president. Is that too much to ask of someone running for president?
4
We have a Prez who does not respect nor value the judiciary system. Yet no democracy can thrive without a strong, independent judicial system.
Absolutely, the replacement should be postponed for the reasons in this article.
5
If Trump is found to have received aid from a foreign power during his election, all legislation and appointments should be null and void based on suspect motives. Even if it takes a constitutional amendment to do it (and override a rigged SCOTUS).
5
Trump has a record of making decisions that are unorthodox and unprecedented as a prelude to triumphant wins cheered by his fans as victories over conventional political, achieved by someone who knows how to win regardless of the means. What he should be doing and what congressional Republicans should be doing will be interperted by them to mean what they must do in order to push the government and the courts further to the right.
1
Thank you, Mr. Berman for your smart piece addressing what's really at stake: democracy and the rule of law. The recycling of tactics like those used by McConnell and the Republicans to thwart Garland's nominations are not the answer. They help to further cement the acceptance of hypocrisy in politics, deepen public cynicism, and hasten the dismantling of democracy.
1
"I asked the House a week ago to suspend its judgment because the facts were not clear, but I do not feel that any reason now exists why we should not form our own opinions upon this pitiful episode."
Winston Churchill, 1940
2
Brilliant column. Educated people cannot disagree that we have the "perfect recipe for autocracy."
1
"But there is another reason to withhold confirmation that both Republicans and Democrats should be able to agree on: People under the cloud of investigation do not get to pick the judges who may preside over their cases."
I don't recall this moral imperative being demanded in the opinion pages of the NYT when Bill Clinton was president.
7
The Supremes don't get to weigh in on impeachment. The Senate's call is final. There are no appeals. Look at the Nixon case.
3
The Supreme Court may weigh in on other legal questions as are described in the editorial that you did not read. The first example that leaps to mind - will Mueller subpoena Trump, will Trump fight it, and will it ultimately end up in the Supreme Court.
Trump has learned this week that any policy of his, no matter how absurd and on-its-face-racist, will be upheld by the Court. He will now be encouraged to push further against legal accountability for himself and his corrupt administration.
Knowing that his replacement would be widely called upon to recuse him or herself from participating in cases involving Trump, makes it all the more puzzling why Kennedy resigned now, instead of waiting until after the November election.
I don't like the smell of this.
2
The stain Professor Berman identifies already exists in the person of Neil Gorsuch.
If Trump conspired with a foreign power to sway his own election, he is illegitimate, and all his appointments are illegitimate as well. If that comes to pass, all must be removed or our government and the rule of law is forever compromised.
If Republicans have any love for constitutional democracy, they will refuse to even hold a hearing on any further nominations for the federal judiciary.
I'm not going to hold my breath.
3
Good point.
Mcconnell doesn’t care, party over country.
2
A rallying cry for those who still care about our democracy: New justice, no peace.
3
It appears we are already well along an irreversible road to authoritarianism with all three branches shamelessly corrupted for such ends.
SUPREME COURT, two members already compromised in their appointment through anti-democratic means and twist the law to support their ideological prejudice (Thomas and Gorusch),
EXECUTIVE BRANCH, whose corruption (on every level as well as anti-democratic) speaks for itself
LEGISTLATIVE BRANCH, rigged by a party that has already hijacked democracy, is obsessed with keeping control, thwarts popular will, and would throw open its arms to authoritarian rule.
Someone please tell us how to get out from under this.
3
"People under the cloud of investigation do not get to pick the judges who may preside over their cases." Interesting legal theory but shows a naive understanding in the US political system. The Republican party and its evangelical base has stood by this disgraceful administration and its obscene, craven antics for precisely this moment: the appointment of the swing vote justice to the Supreme Court. Absolutely nothing else matters to them and moral/ethical arguments no matter how well based are going to stop this from happening.
2
While I despise Trump and fear for the future of the court, I find this a tough argument to swallow. Trump himself has not been accused of any wrongdoing. And the fact that he lost the popular vote is irrelevant. (That's not the way Constitution works, and all candidates know this when they choose where to campaign.) We should not stoop to bend the law, even if Republicans have done so.
2
At first blush, this seems like a good argument. Unfortunately, professor Berman is incorrect. The U.S. Constitution provides:
U.S.C.A. Const. Art. I § 3, cl. 6
Trial of Impeachments
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
4
My article was not about impeachment proceedings. It was about the various constitutional questions surrounding the criminal investigation.
Trump wants to pick those who will judge him. It’s how guilty people operate.
1
I seriously doubt either Mr. McConnell or Mr. Trump either will read or care about the logic of you put forth.
They are in control andloving every second of it.
4
I don’t understand how Americans have just accepted Mitch McConnell’s already stolen SCOTUS seat. Democrats lost as soon as they decided to let that audacious theft just stand without consequence. That Mitch is still even a senator after pulling something like that is a huge lapse in accountability.
5
Hoping for this to happen is a pipe dream. But Democrats, this needs to be front and center of the campaigns for the midterms. It was a huge miss not to bring up the Garland stalling as a 2016 campaign issue. Rouse the rabble and get the to vote!
4
You have to hand it to the right wing. They have managed to use every legal right we have in America in order to steal the rights of everyone else. Ironically, many of the rights they have used to take away people's rights were put in place by the left to protect people's rights.
9
All valid points, and all of zero interest to Mr. McConnell, Mr. Trump and company. They've got all the ammunition, reminding me of: "When it was suggested to Stalin [the dictator of the Soviet Union from 1922 to 1952] that the Pope might appreciate his ceasing to oppress Catholics in Russia, Stalin scoffed, 'The Pope? How many divisions as he got?' "
3
Mr. Berman, You are absolutely right, thank you!!
1
Is Trump and the Trumpists reforming our democracy into a police state?
The only Supreme who could be involved is the sitting Chief Justice who would preside in any impeachment trial in the Senate.
1
Your argument, professor Berman, holds water in a world where the considerations for the greater good of the nation "trump" the more partisan considerations in play as we speak. Does anyone actually think this administration and the Republican leaders in both houses care one iota about a court appointment other than one designed to write opinions which support their agenda? Intellect?? Judicial gravitas?? Not a chance!
5
Mr Trump's continued march to be judge, jury and executioner.....
We CANNOT allow this on our watch for the sake of our Democracy.
No one person is more important than that, unfortunately our spineless leaders in the Senate and House refuse to do their jobs.
Our only hope is November 2018.
It's up to US.
3
Nice try, but no. You'll have to do a lot better than that to out-McConnell Mitch McConnell.
5
Editor: "Anti-democratic" or "anti-Democrat." (please -- language matters.
Love this one.
Perhaps we need to start by fixing the voting procedure and getting rid of the electoral college.
PS, pretty obvious we are not a country of law as the emoluments clause has not been applied. (I guess it's important to uphold the Constitution only if convenient. Trump doesn't care about America -- only about DJT and his progeny. Agenda?? my foot. Naming rights.
5
To paraphrase Mitch McConnell, no Supreme Court appointments in a presidential impeachment year.
4
I despise Trump, but I fear that this is a terrible precedent to set. It's not enough for a POTUS to be under investigation; there must be some (at least preliminary) indications from the special counsel that there will be some finding of wrongdoing. Otherwise the office of special counsel will just become another means to play obstructionist politics in the future.
If Dems are smart they will say nothing about this until if & when Mueller releases his findings. If we start talking about this too soon, the argument loses its persuasiveness.
6
Logical arguments are useful when dealing with honorable, intelligent people. We are dealing with the far right, and they are as evil and hypocritical as they need to be. Their followers are devoted to the destruction of Roe v. Wade, and other such human rights, and would vote out of office any politician who compromises.
We live in terrible times, led by autocrats in training.
Hugh Massengill, Eugene Oregon
9
I have another idea we can all agree on.
You don't get to conveniently make up the rules as you go along to retroactively fit your ideological preferences.
4
Good morning. That's one big Elephant on the Senate floor. Didn't anybody happen to notice it was there before now?
3
The greater good of the country is a strong argument for those of us who care about it. Unfortunately Republicans care more for power to enrich themselves and their owners, and to protect their white so-called “christian” hegemony.
7
Democrats would be better of if they won elections than relying on too-clever, obviously forced arguments like this one.
5
Important to note here that not only is he picking his own judges, but he is simultaneously giving them an appointment to the Supreme Court- the most powerful and the most coveted position of all for a judge. The quid is baked in.
6
A long standing and fundamental principle of natural justice, "no one should be a judge in his own case," is sometimes associated with Sir Edward Coke (1552-1634). But it's probably older than that. Any Trump nominee should be questioned about to respond to being asked to judge a case that involves the person who nominated him or her. And the nominee should be asked if they had to pledge personal loyalty to the President to secure the nomination. And those responses should be made in public.
5
It is a very scary and unfortunately, likely reality. This current ruler will no doubt do whatever he can to maximize his power for the sole interests of himself.
The question is, what can an ordinary people do? (Besides sighing and wishing and crying out?)
5
For a decision as important as this, and to reduce the effects of now-rampant and blatant partisanship, there is no way the Senate should be able to confirm a SCOTUS nominee with a simple majority. We simply cannot allow a single party wield as much influence over the country as we are seeing now.
35
Disappointing to see a law professor distorting the clear language of The Constitution in order to join the "we was robbed" litany.
Article II, Section 2, states, “[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” and, as such, makes the Senate’s consent a prerequisite to confirmation appointment, but places no duty on the Senate to act much less dictate the manner in which it should proceed.
It thus has the discretion to do nothing or engage in the "full monte," of meetings with the nominee, hearings and formal vote.
Indeed, since Article I, Section 5, gives the Senate the power to “determine the Rules of its Proceedings,” the process is theirs to decide.
7
Disappointing to see a law professor distorting the clear language of Constitution in order to join the "we was robbed" litany.
Article II, Section 2, states, “[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” and, as such, makes the Senate’s consent a prerequisite to confirmation appointment, but places no duty on the Senate to act much less dictate the manner in which it should proceed.
It thus has the discretion to do nothing or engage in the "full monte," of meetings with the nominee, hearings and formal vote.
Indeed, since Article I, Section 5, gives the Senate the power to “determine the Rules of its Proceedings,” the process is theirs to decide.
2
Hmmm. Perhaps, then, we should clarify the Article to read “and by and with the Advice and Consent of the Senate, but only if they happen to feel like it...”
2
Yeah, but... If you make this a standard, then every Democratic president who finds himself under the "cloud" of frivolous investigations by the GOP will have to wait interminably for a nomination. Imagine if Bill Clinton had to wait until Whitewater and then the Lewinsky scandal blew over to nominate a Justice. The window would never have opened.
The answer is not to stymie the process. The answer is to vote them out. To protest. To work at democracy as hard as we can. It's the solution least likely to backfire.
17
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed; and in the next place oblige it to control itself. a dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
James Madison, the Federalist 51, Checks and balances
Paul Schiff Berman is telling us that President Trump is no angel. The question is, do the Republicans are willing to admit it and then of "the necessity of auxiliary precautions" by delaying the replacement of Justice Kennedy?
10
President Clinton nominated Stephen Breyer to the Supreme Court while he was being investigated by a Special Counsel appointed by Janet Reno. Three years later, Breyer joined the unanimous ruling in Clinton v. Jones that denied Clinton immunity while in office against Jones' sex harassment case. Breyer (and previously confirmed Clinton nominee Ginsburg) also considered Clinton's appeal of a Starr investigation subpoena for documents. The Court refused to hear that appeal.
Professor Berman's argument has some appeal in the abstract, but does not seem to be reflected in recent historical practice. And it would be a very difficult norm to instantiate - in Clinton's case, the President would've been prohibited from appointing Justices - to say nothing of lower court judges who of course hear such cases in the first instance - for more than half his term. That is a very unlikely principle.
4
Did Breyer insure a perceived "liberal" majority in the courts in favor of Clinton who demanded his loyalty as would be the case here? No. That is why your argument without context is moot. But it is also moot because it ignores that the decisions made by Breyer and RBG were due to points of LAW as one would expect from SCOTUS, not partisanship. Recent decisions by this Court suggest that it is divided in part by partisanship but also skewed interpretations of law- not on the part of RBG but mostly on the part of the poorly argued, reasoned and written positions by the conservative majority. Now comes the Emperor with No Clothes and disaster.
4
A valid point, but only if the investigations were comparable; in this case, they are not. Sexual Harassment, loathsome as it is, pales in comparison to treason.
4
Justices Breyer and Ginsburg were placed on the Court by Democratic President and is proof of that Democrats believe in putting on the Court those that up hold the Constitution and Rule of Law. Gorsuch claims to be a Constitutional scholar but slithered into his seat by being blind to the actions of McConnell.
2
That is all true and wise, Professor Berman, but the dark reality is that the Republican Party has left the surly bonds of democracy, the will of the American people and the separation of powers principles to touch the face of Mammon, unfettered oligarchy and tyranny of the minority.
Russia (the Kremlin) has also infiltrated the NRA and has attempted to infiltrate 'conservative' organizations that share their tyrannical view of the world.
https://www.npr.org/2018/03/01/590076949/depth-of-russian-politicians-cu...
The Republican Party is now the Russian-Republican party, in addition to Daycare Donnie being a Putin Puppet guilty of treason.
The Republican Party is now the party of treason, sedition and Russian cover-ups.
And Russian-Republicans care not one bit about democracy, representative government, the will of the people or reason.
Grand Old Power is now a treasonous American criminal syndicate.
D for democracy; R for Russian-Republicans.
Nov 6 2018
339
Soc
Why hold back so much.
Tell us what you really think and how much you really hate Trump and the Repubs.
Please.
5
Socrates is right.
Why are so many republicans in awe of a man who is dishonest, a terrible negotiator, someone who destroys the bonds of friendship with our neighbors and allies , makes sure that China will be the most important country in the world, and don't get me started on corruption and on his friendship with crooked Russian oligarchs ?
And I have not even mentioned his terrible character.
Must be because of the Supreme Court and the tax cuts.
Very shortsighted. We'll pay dearly for the damage he has done and will continue to do.
I heard Cory Booker make this strong argument last night, one the Democrats and thinking Republicans should be making to everyone who will listen.
We already know as fact that Trump requires a promise of loyalty from those around him, particularly those in positions of legal authority who might be able to undermine his presidency. That is the last thing any American (or even any Republican) should wish for in selecting a Supreme Court Justice, regardless of their political party.
The argument should not be to wait until after the election when Democrats may have more say in the selection of the nominee as McConnell argued in 2016.
It should be to wait until the investigation of the President concludes, when his pick will have no possible influence, regardless of the investigation's outcome.
201
The lines separating the distinct powers grow ever slimmer. Rosenstein was just skewered by Gowdy and others; there is immense political pressure from Republicans for the Mueller investigation to conclude. Of course, given the gravity of its scope, the inquiry should unfold over as much time is needed, not the timeline that would be convenient for the GOP to campaign for this year's elections and to begin stacking the Supreme Court with their preferred conservative ideologues.
38
I wonder if Mr. Berman shared this thought in 1994, when Bill Clinton nominated Stephen Breyer to the Supreme Court even as he was under investigation by a Special Council, but prior to impeachment. Or does this whole thing just work one way?
15
There is no comparison to 1994, when Clinton was being investigated. Breyer received committee hearings, and was confirmed by a Senate vote, before the GOP (in 2017) decided unilaterally to eliminate the filibuster, and its supermajority requirement, from the nomination process. The GOP, contrary to its constitutional duty, refused to even hold hearings on Merrick Garland. They also stated that, since the election was "only" ten months away, that they should wait to determine the will of the voters. The midterms are a lot closer than ten months away, but true to form, the GOP wants to ignore their own rules.
123
No. "this whole thing does not work just one way." There is a world of difference between 1994 and 2018. President Clinton was not an autocrat intent upon undermining democratic principles and institutions.There was no fear for the future of the Republic. Whitewater was a far cry from violations of the Emoluments Clause. Newt Gringrich was having an affair too. Why not, instead, address the whole range of issues Prof. Berman raises in regard to the legality of so many of Mr. Trump's dealings?
17
Ken, MFW's post is not about delay, and not about Garland but Kennedy, so I have no idea what you are talking about. It is about a president being under investigation, in this case Clinton, a perfect analogy to now. Please read his post.
The "cloud of investigation" should include Broidy's likely surrogate payment (through Michael Cohen) for an abortion.
Now we will have back alley abortions, coathanger abortions, and the rich, as usual, will be able to travel to get help. Victims of incest and rape will become prisoners of their babies, whether they want to or not.
We will have more power and wealth given to the already powerful and wealthy.
Corruption breeds more corruption. These Republicans are not your mother and father's republicans: conservation is conservative.
These exploiters are ready to waste the planet for profit, and sell everything that isn't bolted down in the service of hatred, violence, and kleptocracy.
147
I left out Trump, for whom it is likely Broidy was acting as surrogate in that abortion. It would have been bad news indeed if there was an abortion in the late stages of Trump's campaign.
It's not about substance but optics. Even phony evangelicals who don't care for the Jesus of the Gospels would have had trouble ignoring that one.
5
A new idea herein and one worthy of pushing. It is unfortunate, though hardly surprising, given the unimaginative and bland leadership of the opposition party that this idea
did not come from them. Putting the trumpicans on the defensive whenever and wherever possible is essential given how little (if any) institutional power the opposition party actually has.
Besides, it's very hard to ever put mcconnell on the defensive. He has the power, he knows it, and so do his opponents.
Since Mueller has apparently explicitly stated (or was that something from giulani?) that il duce is not (yet)
under investigation, this might be a position with
less traction than hoped for since it involves some
hypotheticals that may remain as such by the time
there are (the pro forma) confirmation hearings. The emoluments clause is not exactly a hot button item that can be rallied around.
After all, how many voters really really care about corruption in their government? This very low level of concern is a reflection of why the country is in such a bad state politically. Corruption
is just so old news say the far too many cynics...what can really be done about it when there is such toleration of it??
Indeed.
But don't get me started on il duce's refusal to release any tax returns, greeted with large yawns by far too many. That is
the quintessential example of the current passive acceptance of /indifference to corruption by far too many citizens.
24
Absolutely spot on op ed. Can you imagine Trump sitting in court defending himself against crimes against the USA with judges he hand picked for the occasion? It would be a travesty. Until Mueller's investigation concludes, Trump should not be allowed to pick any judicial nominees or appointees.
257
Mr. Berman highlights the absurdity of any party in a legal dispute unilaterally appointing the judge who will decide his case. In the likely event that this president succeeds in naming the next Supreme, there is an obvious fair and reasonable solution: The newly named associate justice must agree a priori to recuse himself from any decision directly affecting the president. The exact same promise should be demanded of Justice Gorsuch. A total of seven justices insures that no deadlock will be possible when POTUS's case finally comes before the court. Edward S., New York City
434
We do know that Trump prefers recusals in advance.
republican promises about future behavior is worthless. Have we not learned that by watching their behavior so far?
Except that would require the GOP and its Justices to have a measure of shame. They don't.
I have a friend from Nicaragua. A few years ago, when Daniel Ortega wanted to protect his autocracy, he forced Supreme Court members to resign or make it constitutional that his term be extended indefinitely. The Supreme Court complied (some resigned, but were replaced by cooperating judges.) Now, there are protests in the streets and the country is falling apart. Is that what we are coming to?
521
Yes, except that our GOP has also wanted to let drivers in some states hit-and-run the protesters, as an added bonus. https://theintercept.com/2017/01/19/republican-lawmakers-in-five-states-...
Winning, winning, winning...
4
Yes, that is what we are most definitely coming to.
FDR had the great idea of adding more supreme court justices, there is no actual limit on how many, when the court kept ruling against him.
His own party stood with the Repubs to loudly tell him that he cannot do that.
1
This is an excellent point. However by picking the judge that may preside over his legal troubles, Trump gets to reaffirm to us jaded cynics that, "all games are rigged". Isn't that the true advantage of power?
51
"People under the cloud of investigation do not get to pick the judges who may preside over their cases."
Further, judges appointed under that cloud, and presumably vetted knowing of that cloud, should be recused from any opinion affecting said investigation. It's a conflict of interest.
241
It will be interesting to see the myriad of ways that the left will dream up to argue against the inevitable appointment of the next Supreme Court Justice by Trump. Better yet, a second Trump term and nominations to replace Ginsburg and Breyer..
8
Whatever they do dream, they cannot possibly reach the McConnell standard.
5
Unfortunately, the founders never dreamed of ways of getting rid of abusers of power, like McConnell and Ryan.
8
You, my friend, by your reaction, are defining ultra-partisanship. Do you want a exclusively white and christian America? If so, keep on doing what you're doing. But, I say, take a moment to honestly reflect on what America is and what being American is,
7
If we were living under the rule of law, if rational argument were respected, if the American people cared more about making the right decisions for all Americans, then this would certainly be a persuasive argument that would sway reasonable Republicans and Democrats alike.
However, if we were in that situation, Merrick Garland would be on the Supreme Court and Donald Trump would not be in the White House.
570
"Otherwise, there will be a stain on the legitimacy of this nomination, on the performance of whomever is confirmed and, even, on the Supreme Court itself."
There's a stain on everything the Republicans have been doing.
597
Remember that in Bush v. Gore, two of the justices had close relatives (family) who worked for the Bush campaign. Trump has repeatedly railed against Sessions for recusing himself from the investigation. Don't you think that Trump gained assurances from Gorsuch and will do so with the new appointee that they will not recuse themselves if a case against him reaches the court?
14
@Brainfelt
“Stain” sounds like Comey’s justification for clarifying the Clinton investigation a week before the Election.
Maybe we should stop trying to manipulate everyone, accept the fact that Trump will select this Justice, and go back to work.
Perhaps to elect Democrats, if everyone is so disposed. So far, one House election behind us, the Democrats are still pining for a Socialist.
Maybe that’s your problem.
1
Thank you for a cogent, rational explanation of other issues involved in choosing a new Supreme Court justice. While I agree with you regarding the "stain on the legitimacy of this nomination, on the performance of whomever is confirmed and, even, on the Supreme Court itself", Republicans and Trump don't care. Their main goals are consolidation of power, and further enriching themselves and their oligarch donors. On the road to autocracy they've played craven dirty, and this mere piffle won't pause them.
151
I argue frequently that we will soon be in civil war: this one will be based on class. The Roberts court, the GOP, Karl Rove, the Koch brothers, etc. keep creating powder kegs ready to be lit. Sooner or later, one will go off and it will be the progressives against Trumpf's facists while establishment politicians and the majority sit in judgement of our sins. (I'll be with the progressive army.)
Who'd have thought that Peter Townsend (The Who) was so right? (Reference: Babe O'Riley)
6
A novel legal theory. In direct conflict with the also novel theory that Presidents cannot be indicted. Neither is likely to find implementation in reality.
6
Trump has used his position to appoint agency heads who have worked from the top to destroy the very agencies they are leading. Now he gets to do the same with the Supreme Court.
501
So, are the frogs starting to feel the heat? It may be too late to jump out of the pot when they finally do.
As a president said "Elections have consequences". He also said when someone complained about his high handiness: "I won".
1
Unfortunately, I don't think Trump or the Republicans care. It's not about the law.
It started with Gingrich a couple of decades ago with his Contract With America, in which he basically declared war on the Democrats (the "other side"), and they have maintained a steady focus on one thing only ---- power. They have it all now, and don't care about anything else other than blithely flexing their newly acquired muscles and letting everyone else know that the new Big Boss is here, and not going anywhere.
252
I remember the mid-term elections in 1994. I went to work the next day and said, I have nothing left to live for. I called it the Contract on America.
4
I briefly misread that as "birtherly flexing", which would fit the pro-(forced-)birth GOP strongmen to a T.
1
This reads as so much wishful thinking. I don't consider it realistic to believe this will be delayed. It only takes 51 votes and several dem senators have to face voters in November in mostly red states. There are likely to be a few defections as there were last time.
6
I think the point was what's at stake and not so much the chances of thwarting it.
34
i have heard this argument before about the democratic candidates in red states needing to pay homage to trump. two things:
1. if they can see the damage trump is doing and they still vote in his favor? they are immoral. to keep them as democrats in name only is not beneficial in solving the problems we are facing. what else will they be too afraid to vote on?
2. i am not so sure i believe that trump has this unshakeable hold on all those who express support. a properly explained vote against the nominee would probably not cost votes and might pick up those that don't like republican light.
This is indeed a compelling argument - but is there anything legal that can be done that does not require a majority vote of Congress?
At this point it seems so unlikely that enough, if any, Republicans would be able to resist putting a second Supreme Court justice in place that if a nominee actually comes to a vote, that the vote will happen...
14
"People under the cloud of investigation do not get to pick the judges who may preside over their cases. "
Were it only true, Mr. Berman. Were it only true. This is clearly a way for Trump to try to "stack" the deck for himself, personally. If there is a way to stop this, it most be done.
273
He and the GOP have been furiously packing lower courts with conservatives for a year and a half now; they see this as no different affair. The only way this can be slowed or halted is if the Democratic Party has a compelling slate of candidates this fall and turns the tide with majorities in at least one, if not both, houses of Congress. A GOP victory will seal the fate of many things we take for granted.
5
I hope there is a way to stop this, but I wouldn't count on any GOP leadership to stop this insanity- least of all Mitch McConnell.
The GOP is profoundly corrupt.
3
Thank you Professor Berman. A brilliant, decisive argument which will be hard to dismiss.
303
Unfortunately, none of this is about winning arguments. It’s about power. Power is defeated by more power, not by compelling arguments. At the moment they have the power. If enough other people get out and vote for enough years, perhaps that may change.
24
But it will be dismissed by the Republicons, who see this as a path to their oligarchy. When the courts don't provide any checks on the actions of the rest of the government, the rest of the government is free to do as it wishes.
1
But trust me, it will be.
1
Excellent points. Does that at least mean Gorsuch and any new appointee must recuse themselves from any case that could affect Trump's legitimacy?
605
That sounds like a question for the Chief Justice to contemplate seriously. There may be two such individuals on the bench.
Gorsuch should make an effort to reflect the legal thinking of Garland. After all, he has taken the seat that rightfully belongs to the moderate Obama nominee.
1
@ Bassman
Unfortunately, Supreme Court Justices cannot be required to recuse themselves. While justices do traditionally recuse themselves in matters in which they personally feel there is a conflict of interest, the standards for recusal are lax and whether they do so is generally up to their personal discretion.
3
Berman has let himself be blinded by his own partisanship. It is perfectly predictable what the result of his proposal would be -- and it would be appalling. The party that loses an election would have every incentive to make trumped up charges in order to paralyze and harass the victor. (That should sound familiar).
If Berman wants every future President to spend his or her term of office under the cloud of multiple investigations, he is going the right way about it.
We shouldn't suspend our democracy pending the result of an investigation. That would nullify the will of the voters, and it would represent a tremendous shift of power away from voters to lawyers who would obtain a veto over election results. Only a law professor could take this proposal seriously.
50
The "will of the people" as expressed by the majority of votes (as in democracy) was for someone else to be the president of the US by three million votes. If Trump gets to pick his own judges, there is no democracy in the United States of America. It is that simple.
4
Your argument might have merit if Mitch McConnell hadn't obstructed President Obama's nomination of Merrick Garland by claiming Obama was "constitutionally" a lame duck and therefore should be deprived of his right to nominate a Supreme Court justice. Republicans set the precedent on this one, and Democrats will be fools not to hammer it in every campaign speech they make this fall.
3
Well, technically the will of the majority of voters was to have Merrick Garland in the supreme court and a President Hillary Clinton. Because of flaws in the way our political system is set up, a minority of voters got to dictate those two things and we're all living with that. I agree we shouldn't put the government on hold for every investigation,but given the severity of the potential crime and what we already know about what people on or tied to his campaign did, it doesnt seem at all unreasonable to hold this one up until we have a clearer picture. They have held up nominees for far less...
1
The discussion about whether or not it was "fair" for Sen. McConnell to stop Pres. Obama from putting a third justice on the SCOTUS or whether it is now "hypocritical" for President Trump and the Republicans in the Senate to put a justice on the court before the November elections is a waste of time. The Supreme Court appointments are the brass ring of the political carousel in Washington.
If a President can get it done with a majority vote in the Senate, go for it. If the President doesn't have a Senate majority, tough luck! It's obvious that if the Democrats get a majority in the Senate this November, the Supreme Court will go two more years with only 8 justices because they will never approve an originalist, and Pres. Trump will never appoint an activist. Welcome to "checks and balances".
78
Checks and balances. I wonder if progressives realize this applies to them. I sense a great deal of entitlement to dictate policy. Do they know they're not a majority?
2
By activist, do you mean Samuel Alito?
Declaring that public employee salary negotiations are inseparable from political work seems a policy pronouncement in search of a desired endpoint, rather than a result of impartial judicial discernment.
Ordering a re-argument of a minor case (Citizens United) to over-rule previous precedents regarding corporate political speech would seem to fit the definition too.
How about "unconstitutional" if you don't the like the words "unfair" and "hypocritical" Mitch McConnell's blocking of President Obama's right to pick a Supreme Court justice was. "Brass ring" implies a child's game. This is no game.
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Wake me when folks in the south and heartland realize they've enabled a government controlled by rich white donor class. The Supreme Court is nothing more than legal back up for the business class. The time for outrage and action was during the Obama years and the election. Barak could have cajoled RBG to retire early to get a liberal pick. And voters who either sat out the election or voted for Stein or Johnson in protest to Hillary forgot about the ramifications of having a conservative court...not to mention a racist AG, anti science EPA Sec, a Republican Senate majority etc etc etc.
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