Because I am a liberal Democrat, I want to see the House flipped to my party as an important check and balance between the executive and legislative branches. But what I don’t want to see is a Democratic House abuse its authority by conducting vengeful impeachment proceedings against Kavanaugh.
I have no problem with an objective, preferably bipartisan, inquiry into how to improve the confirmation process. There is much that can be done to make it better. But an investigation of thirty-six-year-old charges against a sitting justice would be an abuse of the powers of Congress.
Such an investigation would simply be partisan payback for Kavanaugh’s confirmation. Nor is it likely to produce much new information about what did or did not happen in house in Maryland in about 1982, when Christine Blasey Ford alleges Kavanaugh sexually assaulted her when they were both in high school. Kavanaugh has denied sexually assaulting Ford or anyone else.
As to impeachment, no sitting Supreme Court justice has been impeached and removed. One was impeached by the House more than two hundred years ago on completely partisan grounds, but ultimately not removed from office by the Senate.
It is unlikely that Congress has the power to impeach a sitting justice for alleged offenses he may or may not have committed while a private citizen and a teenager. It would be the first time in American history any impeachment went back that far and focused on such adolescent conduct.
Democrats may try to move it forward by alleging that the grounds for impeachment include perjury committed by nominee Kavanaugh in his testimony at his Senate Judiciary Committee confirmation hearing. Before his Supreme Court confirmation, Kavanaugh was a sitting judge on the US Circuit of Appeals for the District of Columbia subject to the impeachment power of Congress.
But that would be a ploy, somewhat akin to the phony perjury grounds used to impeach President Clinton. Democrats were outraged when Republicans used perjury as a surrogate for sexual improprieties. They should be similarly outraged if their colleagues seek to use perjury as a pretext for relitigating old charges of sexual misconduct against Kavanaugh.
But when it comes to revenge politics, hypocrisy is the coin of the realm. And don’t expect consistency from zealots in either party.
The time has come to move forward and not look backward. Let Justice Kavanaugh assume the bench. If his conduct on our nation’s highest court is a continuation of his conduct as an appeals court judge, we can expect conservative rulings coupled with excellent judicial demeanor.
It would not surprise me—indeed, it would please me greatly—if the experiences that Kavanaugh has gone through in the Supreme Court confirmation process increase his sensitivity with regard to due process, freedom of expression, and other civil liberties.
Judges often reflect their own histories and experiences, both good and bad. A sensitivity to rights often grows out of a recognition of wrongs one has experienced. We have seen that with liberal justices in the past, such as Thurgood Marshall, Ruth Bader Ginsburg, Sonia Sotomayor, and perhaps to some degree with Clarence Thomas. We may well see it with Justice Kavanaugh.
So let’s hope that if the Democrats regain control of the House in the midterm elections Nov. 6, they will act as an appropriate check and balance on the other branches rather than as a revenge-driven Javert, the villain of Les Misérables, obsessed with righting past wrongs rather than preventing future ones.
Finally, if the Democrats spend the next month running against Justice Kavanaugh, they will alienate many centrist voters who are sick and tired of partisan gamesmanship and want to see a return to the day when members of both houses of Congress can work together in the interest of all Americans—even those who vote against them. This may sound unrealistic in our age of hyper-partisanship, but one can hope.
Justice Kavanaugh Should Not Be Impeached or Investigated39
Now that the Democrats are about to gain control of the House of Representatives, some radical elements within the Democratic Party are suggesting that Justice Brett Kavanaugh should be impeached, or at the very least that he should be investigated by a committee controlled by Democrats. A left-wing political action committee has garnered close to two hundred thousand names on a petition to impeach the newly confirmed Justice. Representative Jerrold Nadler, who will head the House Judiciary Committee, promised to investigate Kavanaugh’s alleged misconduct:
If he is on the Supreme Court, and the Senate hasn’t investigated (Kavanaugh), then the House will have to. We would have to investigate any credible allegations of perjury and other things that haven’t been properly looked into before.
These would be a serious mistake, both legally and politically.
A sitting justice cannot be impeached and removed for alleged conduct he committed decades ago when he was seventeen years old. This would seem beyond dispute. But taking a page from the Republican playbook in the Bill Clinton impeachment, some Democrats are saying that Kavanaugh can be impeached for the testimony he gave about those long-past events. That, too, would be constitutionally dubious. First, he was not a sitting justice when he gave that testimony. He was a judge on the United States Court of Appeals. So he would have to be impeached and removed from that office. But he no longer serves in that office. Zealots might argue that he can be impeached and removed as a Justice of the Supreme Court for perjury committed during his confirmation hearing to serve on the High Court. That is somewhat more plausible but it, too, is a stretch.
Moreover, it would be virtually impossible to prove that Justice Kavanaugh committed perjury—that is, willfully lied about a material fact. Even if he was wrong—even if Professor Christine Blasey Ford truthfully testified about what happened years ago—it is highly likely that Kavanaugh did not remember what Ford claims happened. If that were the case, his testimony would not be perjurious. Nor would it be perjury for him to have a different recollection of his drinking habits than the recollection of some of his classmates. Perjury is difficult to prove, especially regarding decades old events.
Let’s recall that modern attempts to impeach Supreme Court Justices have been directed against liberal members of the Court: Chief Justice Earl Warren and Justice William O. Douglas. These efforts never went anywhere because they were transparently political. So, too, would current efforts by the Democrats to manufacture a case for impeachment against a justice who they oppose on ideological grounds. But they would establish a terrible precedent that could come back to haunt liberal justices and Democrats. Remember what happened when foolish Democrats employed the “nuclear option” to eliminate the supermajority rule for confirming judges.
I worked hard on behalf of Democratic candidates to assure that at least one house of Congress is under the control of the opposing party. A divided Congress is an important check and balance against one-party rule. But the Democrats risk weakening their power if they foolishly prioritize impeachment, investigations, and revenge over legislative priorities that could help the American public. We need more bipartisan legislative efforts and fewer hyper-partisan show trials or investigations.
Impeachment is a constitutional remedy of last resort, deliberately made difficult by our Framers. Impeaching and removing a president is, of course, the most extreme step that Congress could take, but impeaching a justice who has been confirmed by the Senate comes close. It would be a flagrant abuse of power for the Democratic majority to act in so unconstitutional, unwise, and shortsighted a manner. But in this age of hyper-partisan politics nothing should surprise us.
Leaders of the Democratic Party seem to understand this, but some soon to be Committee chairs seem ready to deploy their newly found power to gain headlines and appeal to the immediate gratification of their base. The leadership should restrain these impulses and look to the future instead of trying to investigate past sins of those with which they disagree. Justice Kavanaugh has been hearing arguments on the high court. Soon he will deliver his first opinions. Let’s put recriminations behind us and judge him on his actions as a justice, not on allegat
ions of his past behavior.
Don’t Seek Partisan Advantage from Pipe-Bomb Arrest40
The arrest of Cesar Sayoc Jr. for the flurry of pipe bombs directed against liberal and left-wing icons leaves many questions unanswered. It does seem to put to rest the conspiracy theory of a “false flag” operation organized by the hard-left to demonize the hard-right or the Trump administration. But we still don’t know whether the pipe bombs were intended to kill or merely to frighten. The FBI has determined that these bombs were not “hoax devices,” but they have not disclosed whether they were capable of lethally exploding.
Either way, the perpetrator must be condemned in the strongest of terms and tried for serious crimes.
The entire episode brings back painful memories of the Weathermen and other radical left-wing groups who planted bombs in the 1970s. The Weather Underground and other radical groups targeted universities, army bases, police officers, banks, and other establishment places and people. The death toll was considerable and the fear was palpable. At about the same time, the Black Panthers, the Symbionese Liberation Army, and other radical leftist groups terrorized the United States.
So far, no one has tried to glorify the person responsible for the recent pipe bombs. Although President Trump has condemned the perpetrator, it would not be surprising if some right-wing extremists took perverse pleasure and pride in the attacks on the left-wing icons.
This is different from how some on the left glorified the Weather Underground, Black Panthers, and other hard-left terrorists. Left-wing lawyers, who would never defend an accused right-wing terrorist, rushed to represent them; prominent leftists contributed to defense funds and attended fund-raising parties. Films, books, plays, and articles sought to understand the motives of these young murderers.
Years later, Barack Obama befriended Bill Ayers and Bernardine Dohrn, who had been active members of the Weathermen and supporters of violent terrorism. Both Ayers and Dohrn were invited to teach at major American universities, as was Kathy Boudin, who had served a long prison term for participating in a terrorist-inspired robbery that resulted in the deaths of two policemen and one armored-truck guard and seriously injured a second guard. It is difficult to imagine any American university appointing a right-wing terrorist, even one who had served his term and claimed to be rehabilitated. It is fair to say that public attitudes by some on the left were somewhat sympathetic to left-wing terrorists.
Tragically, we have seen violent terrorism in the US on both sides of the political spectrum. In the nineteenth and early twentieth centuries, the Ku Klux Klan was a violent terrorist group with significant support from political figures and ordinary citizens. During the first decades of the 20th century, left-wing anarchists planted bombs and engaged in other forms of violence that killed many innocent people. More recently, hard-left violence was directed at Republican congressmen as they practiced for a charity baseball game, wounding several people, including Rep. Steve Scalise of Louisiana. A threatening letter claiming it contained ricin was sent to Sen. Susan Collins (R-Maine) because she voted to confirm Brett Kavanaugh to the Supreme Court, and other hard-left threats were directed against prominent Republicans.
The extreme right and the extreme left both have a penchant for lawlessness, violence, and terrorism. It is ahistorical to identify such terrorism only with either the hard-right or the hard-left, though partisans always seem to do that when it serves their short-term ideological interests.
The hard-right and the hard-left share in common a disdain for the law, an intolerance toward those with whom they disagree, a distrust of dialogue, and a willingness to use despicable means to achieve what they believe are desirable ends.
All Americans should condemn terrorism, regardless of its source—but conservatives have a special obligation to condemn right-wing terrorism, just as liberals have a special obligation to condemn left-wing terrorism. No one should be given a pass. It is not that conservatives are responsible for right-wing terrorism, or that liberals are responsible for left-wing terrorism. The point is that hard-right terrorists often falsely claim to be acting on behalf of the conservative agenda; similarly, left-wing terrorists sometimes falsely claim to be acting on behalf of the progressive agenda. It is too easy for conservatives to condemn left-wing terrorism and for liberals to condemn right-wing terrorism. Both sides have to disassociate themselves from violence on their side of the political spectrum.
In the days to come, we will learn more about the alleged perpetrator and his motives. For now, it is enough to applaud law enforcement for the arrest it made, and for all decent Americans to avoid the temptation to try to secure partisan advantage from this frightening episode.
Shootings, Bombs Reflect a Deeper Malady41
The cowardly shootings—in a synagogue, in a black church, and on a baseball diamond—along with the mailed pipe bombs, are extreme manifestations of a deeper, more pervasive attack on American values of tolerance, reasoned discussion, and non-violence.
The core constitutional and political values of our nation are currently being challenged in many places and by many people, but most dangerously by students and faculty leaders on university campuses. These values include the free and open exchange of ideas, the right to hold and express views that offend some listeners, and the value of the marketplace of ideas as a means of discerning truth; the very value of truth as an end in itself; the need for diversity of ideas; due process and the presumption of innocence for those accused of misconduct, especially sexual misconduct; individual rather than identity accountability; and other traditional hallmarks of liberal democracy and barriers to tyranny.
In place of these proven protections, many students and faculty are insisting that freedom of speech is part of patriarchal privilege designed to preserve the status quo; that truth is identity-based and variable; that evidence is in the eye of the beholder; that they know their Truth—with a capital T—and need hear no others; that due process is a tactic for requiring the oppressed to prove their victimization; that identity politics must displace individualism; that intersectionality—the academic construct that teaches that all oppressed groups share common oppressors—demands group accountability; and that democracy and liberty are themselves constructs of hegemonic white, male, hetero Western autocracy.
Most frightening is the claim by some academics that violence is an acceptable tactic of change if democratic institutions do not produce the desired results.
This is the current lingua franca of much academic discourse, not only on the campus but in many classrooms, including required courses—and the attack is spreading beyond the campus to extremists on all sides of the political and ideological spectrum. Centrist liberalism and conservatism—which share a strong commitment to the core values under attack—are being marginalized by extremists who used to dwell on the margins of politics, academia, and the media.
The political center is shrinking, as many on the left move away from liberalism toward misnamed “progressivism,” which often espouses many regressive, intolerant elements, and as the right moves toward populism, the alt-right, and outright white supremacy.
This is a worldwide trend, manifested by the rise of both the hard-left and hard right. Jeremy Corbyn in Great Britain represents the hard-left in this trend, as do some recently elected Democratic politicians in our own country. The trend toward the hard right is represented by nationalistic leaders in Hungary, Poland, Greece, Austria, and other European countries, as well as by some extremist Republican politicians.
In the US, we are blessed with a constitutional system of checks and balances that constrains the excesses of either extreme, but the most important check always remains with the people. As the great Judge Learned Hand wisely reminded us many decades ago: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
Our system of checks and balances transcends legal institutions—executive, legislative, and judicial. It includes extra
-legal institutions, such as the academy, the media, business, religion, science, and technology. When President Trump decided to separate families at the border, these institutions coalesced to say, “No, that’s not what Americans do. You went too far.” And President Trump backed off—not enough, but to a considerable degree.
The concerning question is whether the current trends toward extremism and intolerance are wounding liberty in the hearts of our future leaders, and whether we have the capacity to treat these wounds before they fester and become fatal.
Some of the media, too, has prioritized ideology over truth, opinion over reporting, pandering over challenging. One-sided news “analysis” appears on the front page of the New York Times right next to selective reporting (all the news that fits our narrative). Fox, CNN, and MSNBC report the same facts differently. The media has become as adversarial as our legal system, but without judges (who are also becoming more adversarial). The ACLU, which long protected civil liberties in a nonpartisan, neutral manner, has now become part of the problem, prioritizing left-wing partisanship over neutral civil liberties.
History has generally blessed this nation with an absence of powerful, influential extremes. We never had the kind of large fascist and communists parties that plagued Europe in the 1920s and 1930s. To be sure, there were regional extremists such as the Klan, which exercised considerable power in some parts of the country for decades, but they were always peripheral and transient to governance. When Europe responded to the post–World War I depression with Nazism and communism, we responded with the New Deal. To be sure we had right-wing McCarthyism, but a Republican president stood up to that potential tyrant and he flamed out.
The Case Against the Democratic House Impeaching Trump Page 29
