The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  So please, Laura Ingraham, be more tolerant of differences—even lack of “merit,” as some would define it—that immigrants bring to this country. You are I are both the product of these differences.

  Kavanaugh, the Presumption of Innocence, the Court of Public Opinion, and the Integrity of Our Institutions

  The process of nomination to the Supreme Court has become increasingly partisan in recent years, but came to a head when the Republicans refused to move forward with President Barack Obama’s nomination of brilliant centrist judge Merrick Garland. The partisanship reached its nadir then and in the subsequent hearings regarding Judge Brett Kavanaugh, during which both sides offered arguments that failed the shoe on the other foot test—that is, their arguments would surely have been different had the nominee been of a different political orientation.

  The politicization of the Supreme Court, intended to be the necessary nonpartisan institution to provide integral checks and balances in our democracy, is yet another manifestation of the underlying problems in our culture and government. As I’ll show in these pieces, hasty convictions in the court of public opinion now take precedent over the presumption of innocence, and our democratic institutions are suffering gravely for it.

  A Self-Inflicted Wound to Judicial Independence21

  Many on the left claim they are worried that the Trump administration will destroy the independence of the judiciary by appointing judges who will support the right-wing agenda. They have a point, but if they are indeed concerned with judicial independence—as distinguished from furthering their own partisan agendas—they should be equally concerned about a recent recall of a judge in California.

  Judge Aaron Persky was recalled because he showed leniency in sentencing a Stanford student who was convicted of raping “Emily Doe.” Both the convicted man, Brock Turner, and the victim had been drinking at a fraternity party, and he had sex with her while she was apparently unconscious. Because he was a first offender and himself inebriated, the probation department recommended that the Stanford freshman receive a non-prison sentence. Judge Persky sentenced Turner to six months in jail and three years of probation.

  This sentence caused outrage among many feminists and a demand for the judge’s recall. Reasonable people can certainly disagree about whether the sentence was too lenient, but reasonable people often disagree about particular sentences, with liberals often criticizing sentences as being too harsh.

  Yet, demanding a recall of a judge because of disagreement with a particular sentence has institutional implications that transcend a single case. The campaign to recall Judge Persky was led by a feminist law professor from Stanford named Michele Dauber, who argued that Judge Persky was too lenient in his sentence and that she wanted to send a message to other elected judges.

  Opponents of the recall included prosecutors and judges, who argued, “It certainly appears the goal is to teach judges, all judges, some lessons: If you want to keep your job as a judge, keep an eye on media reports of public sentiment when you are exercising your sworn duty to sentence a defendant in light of the law and the facts.”

  Professor Dauber succeeded in recalling Judge Persky but, in doing so, she and those who voted for the recall inflicted a deep wound on judicial independence. Today, they recalled a judge who made a ruling against their agenda. Tomorrow, this recall will energize extremists from the right to recall judges who make rulings supporting the left-wing agenda.

  California has already experienced a successful right-wing effort to remove liberal judges. Back in 1986, Chief Justice Rose Bird and Associate Justice Cruz Reynoso were voted out of office because of their opposition to the death penalty and their support of other liberal agenda issues. We are likely to see more recalls and contested judicial elections now, organized by extremists on both sides.

  The sad reality is that the last thing extremists want is judicial independence. What they want is judges who will do their bidding, who will support their agenda, and who will vote their side. In an age when nearly everybody picks a side and supports it without regard to neutral principles of justice or civil liberties, the danger to judicial independence comes equally from the left and the right.

  The difference is that the left needs judicial independence more than does the right. This is because independent judges are supposed to defend the rights of the disenfranchised, the weak, the discriminated against, and those who cannot prevail in our majoritarian political system. No judge has ever been removed from office for being too tough on crime, for imposing excessive sentences, or for siding with prosecutors. The recall is a right-wing tool that now has been sharpened by the hard-left.

  So the decision to recall Judge Persky may benefit the extreme left in the short run, but it hurts liberals and progressives in the long run. But extremists always demand immediate gratification and rarely look to the long-term implications of the damage they are doing. The ultimate losers will be African Americans, Hispanic Americans, Native Americans, and other minorities who too often are treated unfairly by our legal system.

  Allow Fordham law professor John Pfaff to have the last word:

  The recall will make judges more aggressive, and in ways that will never be neatly confined to the issues in the Turner and Persky cases. More people will be sent to prison, and that increase won’t make us safer. Since a majority of people in prison are black or Hispanic, the impact of this toughness will fall disproportionately on minorities. For those hoping to see the United States become a less punitive place, the recall’s success is disappointing.

  It All Depends on What Kind of Conservative Trump Chooses22

  President Trump will clearly replace Supreme Court Justice Anthony Kennedy with a conservative who appeals to the president’s base. The real question is what kind of conservative justice he nominates.

  The two key words in assessing the president’s nominee to replace Justice Anthony Kennedy are stare decisis. This ancient Latin phrase, which means let the decision stand, represents a conservative approach to judging: that precedent imposes constraints on judicial innovation. Put another way, that judicial innovation should be balanced against the need to maintain stability in our legal system. The Supreme Court, unlike the lower courts, is not technically bound by stare decisis. As the late Justice Antonin Scalia frequently pointed out, his oath of office required him to apply the Constitution, not the decisions of his predecessors on the bench if those past decisions were wrong.

  But all judicial nominees, whether liberal or conservative, will always throw a bone to stare decisis. They will claim, quite correctly, their legal system depends on stability, certainty, and predictability. But they will also point out that the law must sometimes change to suit the times. So the questioning of these potential nominees must be more probing and substantive. They should be asked about the criteria they apply in determining whether to be bound by past decisions.

  There are two basic types of conservative justices. The first defers to stare decisis. Such a justice might say, “I would have decided Roe v. Wade differently if I had been a justice back in 1973, but since that decision has been on the books for forty-five years, I will not overturn it.” Such a justice might say something similar about more recent decisions concerning gay rights and gay marriage. That is one kind of conservative justice the president might pick.

  But there is another kind of conservative justice in the vein of Scalia. This freewheeling kind of justice, with less respect for stare decisis, might well vote to overrule Roe v. Wade and other landmark cases, regardless of how long they have been on the books.

  If the president were to nominate a conservative who rejects stare decisis, the court would then have these three factions. The conservatives would be divided into two camps, one that followed precedent and the other that did not. (Obviously these would be matters of degree, since no one always follows precedent and no one always ignores it.) These conservatives might vote very differently on particular cases.

  The third faction
would be comprised of the court’s current liberals who likely would vote along with those conservatives who supported stare decisis, to ensure that old precedents are not easily overruled.

  These positions on stare decisis may influence President Trump’s decision on whom to nominate, especially the candidates’ views on Roe v. Wade. Today, liberals want to use stare decisis to preserve Roe v. Wade, gay marriage, and other iconic liberal decisions of the past. Many conservatives would like to see these decisions overruled. The new nominee, as guided by his or her respect for precedent, will be forced to take a position on these issues. Roe v. Wade will be at the forefront.

  The conservative view can fall into several categories: The first is that Roe v. Wade was wrong when decided, it is wrong now, and it should be overruled. President Trump has suggested that he expects his nominee to take that position, but any such nominee may have difficulty being confirmed because at least two Republican senators opposed reversing Roe v. Wade.

  The second position is that Roe v. Wade was wrong when decided but it has been the law for forty-five years, and the nation has come to rely on it as governing law. Accordingly, it should not be overruled, but nor should it be expanded. This is the most likely position that a successful nominee might take.

  Then there is the extreme position, hinted at by Justice Clarence Thomas: Not only is there no right for a woman to have an abortion, but it is unconstitutional for the state to allow abortion, since abortion violates the right to life of the fetus. Such a radical view would dramatically change both constitutional law and politics in America, but the Supreme Court’s decision interpreting the second amendment granting the personal right to own guns also reversed long-standing precedents and changed the nature of law and politics in our country. It is unlikely that any nominee with such an extreme view concerning abortion could be confirmed, if he or she acknowledged that they would vote to prevent states from keeping abortion legal.

  President Trump would be well advised to select a justice who believes in precedent and who would not overrule Roe v. Wade and gay rights cases. Overruling Roe v. Wade would end up hurting conservatives in national elections.

  The majority of Americans strongly support a woman’s right to choose, perhaps with some limitations. Because of Roe v. Wade, elections are not referenda on this important right. For that reason, many moderately conservative women feel comfortable voting for a Republican president and senators. But if these moderate conservatives came to believe that a vote for Republicans is a vote against the right of their daughter, sister, or niece to obtain a necessary abortion, they might well change their vote.

  This may not be as true for centrist Republicans who support gay rights and gay marriage. But many such Republicans do support these rights, and the fear of losing them might turn them against the Republican Party. President Trump also will be better off with a united conservative group on the high court, one that is not divided by their views on precedent.

  Finally, true conservatives should place considerable importance on precedent, because conservatism espouses stability, respect for the past, deference, and judicial restraint. Freewheeling judges who disregard precedent can quickly become judicial activists who substitute their own views for those of the executive, legislature, and the Constitution.

  This is an important time for the Supreme Court. It is quickly becoming a politicized institution, and many of its votes can be predicted by looking at party affiliation. That was certainly true of Bush v. Gore, in which the justices voted their politics rather than the constitutional views they had previously espoused. Partisan decisions diminish the power of the court.

  As The Federalist Papers observed, the Supreme Court is the “least dangerous branch” of our government because it has neither the purse nor the sword with which to enforce its decrees. It depends entirely on its credibility and the trust placed in it by American citizens.

  The appointment of a Supreme Court justice is one of the most important functions a president can perform. The Senate behaved abysmally and, in my view unconstitutionally, when it refused to consider President Obama’s nomination of Merrick Garland, a brilliant centrist judge.

  Senate Republican leaders said they would refuse to consider and process any nomination regardless of its merits that President Obama submitted near the end of his term. The Democrats may well try to play the same game, but they don’t have the votes to carry it out. They should still rigorously question any Supreme Court nominee in order to determine his or her views on the importance of precedent.

  President Trump will get his nomination through the Senate if he picks from the list provided to him by the Federalist Society. The judges on this list are all conservatives with high levels of qualification. But he can act as a statesman, rather than a politician, if he selects a nominee who strongly believes in following precedent, especially in cases where American citizens have come to rely on prior decisions in regulating their lives.

  So the next several months may be a civics lesson for all Americans as we observe the president making his decision about whom to nominate, and we watch senators make their decision as to whether they confirm the nominee. We need such a lesson because the vacancy that occurred when Justice Scalia died provided an object lesson in politics trumping decency and constitutionality, as Senate Republicans violated their duty to advise and consent by refusing even to consider any nominee put forward by President Obama in his last year. Let us hope that the process of replacing Justice Anthony Kennedy will provide a more ennobling lesson for all Americans.

  Let the president and the Senate perform their constitutional duties, and let the public evaluate them on how well they perform these duties. This is the ultimate check and balance that our Constitution demands.

  The SCOTUS Confirmation Process Has Gotten Out of Hand23

  The Framers of our Constitution would be turning over in their graves if they could see what happened to their words “with the advice and consent of the senate.”

  Now senators neither advise nor consent to Supreme Court nominations. They politicize, delay, demonize, obscure, fabricate, and discredit what should be a nonpartisan process of assuring that the most qualified lawyers serve on our highest court. Instead we have come to expect votes that are cast largely along party lines.

  It was not always what it has now become. Even in the recent past, highly qualified but controversial nominees—such as Antonin Scalia and Ruth Bader Ginsberg—were confirmed with hardly any dissents. No more.

  There is enough blame to go around. Republicans point to the Bork rejection (which resulted in the Kennedy nomination) and the Clarence Thomas “high-tech lynching.” Democrats point to the Republican refusal even to consider former President Barack Obama’s nomination of the highly qualified and centrist Merrick Garland. They also point to the fact that President Trump has “outsourced the selection process to the Federalist Society.”

  Whoever is to blame, the real victims are the American people who have been denied the constitutional protection of a legitimate confirmation process.

  Focusing on the current confirmation battle over Brett Kavanaugh, some Democrats showed their disdain for the process by carrying signs opposing President Trump’s nominee even before the nomination was made. They left the name blank and filled it in only after the president nominated Judge Kavanaugh. Others have taken the view that they would never confirm any nominee whose name was on the list provided by the Federalist Society.

  A story from the past is worth recalling. When the great Justice Oliver Wendell Holmes retired, President Herbert Hoover asked his attorney general to supply him a list of ten names to fill the seat of this great justice. The list contained nine Republican names, but at the bottom was the name of one Democrat—a great New York judge named Benjamin Cardozo. When Hoover saw the list, he reportedly said to his attorney general, “It’s a great list but you have it upside down. Cardozo’s name should be on the top because he is the most distinguished sitting judge in
the US.” The attorney general reportedly responded that Cardozo was a Democrat, a Jew (there was already one Jew on the Supreme Court, Louis Brandeis), and a New Yorker, and his appointment would not serve the political interest of the president or his party. But Hoover nominated Cardozo, who served with distinction on the high court.

  Today such a nomination would be unthinkable. Generally, presidents still look for high-quality nominees, but among the many who are so qualified they demand a nominee who will toe their ideological line, be acceptable to their base, and generally promote the interests of their party. That is not what the Framers contemplated.

  The Supreme Court is supposed to be above politics. It is supposed to serve as a check and balance against the two political branches of government. It is supposed to be nonpartisan. The votes of justices are not supposed to be based on ideological or partisan considerations. The Framers would be livid at the 5-4 party line vote in Bush v. Gore. They would have been equally livid if there were a 5-4 partisan vote in favor of a Democratic president. Partisan votes are supposed to take place in Congress, not in the chambers of our highest court.

  It may be too late to restore the integrity of the confirmation process. We are in the age of tit-for-tat political reprisals. The Democrats say that the Republicans stole the Merrick Garland nomination, so the Democrats want to try to steal the Kavanaugh nomination. They will almost certainly fail, but not before they have further tarnished the confirmation process.

  It will take a statesman rather than a politician in the Oval Office to change this dynamic. A great president will someday nominate the most distinguished lawyer in the country, without regard to party ideology or other political considerations. All presidents claim that they are doing this. Former President George H. W. Bush told the American public that Clarence Thomas was the most qualified person in American to serve on the high court. No one, probably not even Clarence Thomas, believed that. But he, too, was confirmed, largely along party line votes.