— Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”
Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.
.. — Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”
Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.
.. Kavanaugh is now up for this seat, which Grassley still resents did not go to Bork. The chairman read at length from an op-ed that ran over the weekend in the Wall Street Journal by conservative legal blogger Mark Pulliam. “By confirming Judge Kavanaugh,” Pulliam wrote, “the Senate can go some way toward atoning for its shameful treatment of Justice Robert Bork 31 years ago.”
.. Sen. Mike Lee (R-Utah), whose father was Reagan’s solicitor general, also complained about Bork being blocked during his opening statement. “It remains something of a rock-bottom moment for the Senate and for the Senate Judiciary Committee,” he said.
.. The chorus of reverent Republican paeans to Bork, whose legacy will always be tainted by his role as the hatchet man in the “Saturday Night Massacre,” were particularly striking against the backdrop of Democratic charges that Kavanaugh would give legal air cover to Trump in the plausible scenario that he moves against Bob Mueller, as well as the continuing unwillingness of congressional Republicans to pass legislation that would safeguard the special counsel.
.. In this vein, Sen. Richard Blumenthal (D-Conn.) argued that holding the hearing is “unprecedented … because [Trump] is an unindicted co-conspirator who has nominated a potential justice who will cast the swing vote on issues relating to his possible criminal culpability, including whether he is required to obey a subpoena or to appear before a grand jury, whether he is required to testify in a prosecution of his friends or associates or other officials in his administration and whether in fact he is required to stand trial if he is indicted while he is president.”
.. — Introducing himself to the committee as reasonable and collegial, Kavanaugh described Merrick Garland as a personal “friend” and a “superb” chief judge on the U.S. Court of Appeals for the D.C. Circuit, where they have served together for more than a decade. “I am proud of that body of work and I stand behind it,” Kavanaugh said.
Perhaps this was meant as an olive branch, but Democrats took it as trolling. Garland, after all, was Barack Obama’s nominee to replace Antonin Scalia in 2016, and Senate Republicans refused to give him a hearing or otherwise consider his nomination. As much as anything else, the GOP’s treatment of Garland two years ago destroyed the last vestiges of comity in the judicial nominations process. Three Democrats cited him during the hearing on Tuesday to call for a postponement.
Kavanaugh’s comment about Garland wasn’t the only thing that rubbed salt in open wounds. Tuesday’s hearing featured sometimes naked displays of brute political force by a party that has just a one-seat majority in the Senate.
.. “You had a chance, and you lost,” Sen. Lindsey Graham (R-S.C.) told the Democrats. “If you want to pick judges from your way of thinking, then you better win an election.”
Sen. Ted Cruz (R-Tex.) claimed that the GOP’s refusal to allow a hearing for Garland actually gives Gorsuch and Kavanaugh “super legitimacy” because voters in 2016 knew that the next president would get to pick at least one justice.By releasing a list of the judges he’d pick from, Cruz said, Trump provided “unprecedented transparency.”
“This is an attempt by the Democrats to relitigate the 2016 presidential election,” Cruz continued.
To be sure, when it looked like Hillary Clinton was probably going to win, Cruz argued that Republicans should consider keeping the seat vacant for her entire term.
.. these same GOP members have also been going to the White House complex for several weeks to participate in mock confirmation hearings with Kavanaugh.
They’ve pretended to be Democratic senators in these moot sessions and coached Kavanaugh on how to deflect expected inquiries from the other side.
.. “It’s mostly a sham,” said Whitehouse. “You know the game,” the senator told Kavanaugh, who looked back at him stone-faced. “In the Bush White House, you coached judicial nominees to just tell senators that they have a commitment to follow Supreme Court precedent, that they will adhere to statutory text and that they have no ideological agenda. Fairy tales!”
.. Last year, McConnell went “nuclear” — in the parlance of the Senate — by changing the rules of the body to allow Supreme Court nominees to be confirmed by a simple majority — instead of 60 votes. Harry Reid shortsightedly changed the rules four years earlier to allow lower-court nominees to be confirmed this way, but he said at the time that the Supreme Court process should stay sacrosanct.
.. Going nuclear means that presidents are more likely to pick ideological nominees when their party controls the Senate, whether from the right or the left, because they no longer need any members of the other party to cross over to secure 60 votes. Kavanaugh can be muscled onto the court with only GOP votes, which makes his confirmation a sort of fait accompli. He does not need to make concessions or agree to recuse himself from certain cases.
.. The result of the rule changes is a Senate that’s become more majoritarian. Members of the minority have fewer prerogatives. This is a recipe for institutional decay. No one who watched yesterday’s circus could credibly call the Senate the world’s greatest deliberative body. It certainly isn’t what James Madison had in mind when he designed the upper chamber as a cooling saucer on the passions of the people’s representatives in the House. Republicans will probably come to regret the rule changes when they again, inevitably, find themselves in the minority and Democrats treat them as they’re now being treated. That probably won’t happen next year, but perhaps in 2021 or 2023.
.. But there’s no going back now. Why would Democrats tie their hands and hold their nominees in the future to a higher standard than Republicans have held theirs? Neither party’s base would tolerate unilateral disarmament.
— “Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan,” Dana Milbank explains in today’s paper. “Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly. Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch. ….. ‘a cynical view of Kavanaugh’s actions would be that he bases his legal reasoning on his conservative views — that he supports broad powers for a Republican president and circumscribed powers for a Democratic president.’ What has emerged about Kavanaugh — particularly his vulgar plan to humiliate [Bill] Clinton — reinforces that cynical view. This is why Kavanaugh’s defenders don’t want the documents to come out.”
What If President Donald Trump Tries to Fire Robert Mueller?
Mr. Mueller was appointed not by Mr. Trump, but by Deputy Attorney General Rod Rosenstein after Attorney General Jeff Sessions recused himself from involvement in any investigation related to the 2016 presidential race. That means Mr. Trump couldn’t fire Mr. Mueller himself, but would have to order Mr. Rosenstein to do so.
Mr. Rosenstein has expressed support for Mr. Mueller, and his associates expect him to resign rather than carry out such an order. If that happens, Mr. Trump could turn to the next Justice Department official in line, acting Associate Attorney General Jesse Panuccio, and then to Solicitor General Noel Francisco.
It isn’t known if either would heed an order to fire Mr. Mueller. If they refuse, Mr. Trump would have to go down the hierarchy at the Justice Department until he found an official willing to do so. In such a situation, the president could face a number of DOJ resignations—and the political fallout that would entail.
Something like this happened on Oct. 20, 1973, when President Richard Nixon ordered Justice Department officials to fire Watergate special prosecutor Archibald Cox. Attorney General Elliot Richardson resigned, as did his deputy, William Ruckelshaus. Solicitor General Robert Bork finally did as Mr. Nixon asked. That episode became known as the Saturday Night Massacre.
.. Some legal experts have asked whether Mr. Trump might replace Mr. Sessions or Mr. Rosenstein with another official and order that person to fire Mr. Mueller.
Attorneys general and their deputies must be confirmed by the Senate. Someone who is temporarily “acting” in that position, without Senate confirmation, must come from an existing Justice Department job or a Senate-confirmed post elsewhere in the administration.
.. Mr. Trump could, in theory, install someone like Environmental Protection Agency administrator Scott Pruitt, a former Oklahoma attorney general, as acting attorney general. Then, he could order Mr. Pruitt to fire Mr. Mueller. The political blowback from such a move, however, would likely be considerable.
Would Justice Department officials appoint another special counsel to replace Mr. Mueller?
Harsh public reaction to the Saturday Night Massacre in 1973 forced Mr. Nixon to allow DOJ officials to appoint a replacement. Leon Jaworski took that job and steadily pursued the investigation until the president was forced to resign.
.. There is no reason to think the Trump administration would appoint a new special counsel if Mr. Mueller were dismissed.
.. Prominent lawmakers of both parties, including Senate Judiciary Chairman Chuck Grassley (R., Iowa), have expressed support for Mr. Mueller. Mr. Grassley’s committee holds confirmation hearings for Justice Department officials, so his views are especially important.
The Iowa senator has suggested he wouldn’t move to approve a replacement if Mr. Trump fires Mr. Sessions, and on Tuesday he told Fox Business that “it would be suicide for the president to want to talk about firing Mueller.”
.. In addition, even if Mr. Trump fires Mr. Mueller, he can’t fire the grand jury the special counsel is working with or the judge overseeing it. A judge could appoint another prosecutor to continue working with the grand jury.
The GOP health-care bill shows the need for regular order.
Kennedy was the showy performer in that ugly spectacle, but Senator Biden, as chairman of the Judiciary Committee, was the stage director. Prior to Bork’s nomination, Biden had in fact said that he would support it: Bork was, after all, a distinguished legal scholar with a long history in public service. Bork had many challenges in front of him: For one thing, he was very sharp-elbowed in intellectual disputes, which had not won him very many friends.
.. The Senate majority leader at the time was Democrat Robert Byrd, a man who had rejoiced in the title of Exalted Cyclops of the Ku Klux Klan, and who held a grudge against Bork for his role in the Watergate scandal, during which Bork had fired special investigator Archibald Cox on the orders of President Richard Nixon.
.. The Senate majority leader at the time was Democrat Robert Byrd, a man who had rejoiced in the title of Exalted Cyclops of the Ku Klux Klan, and who held a grudge against Bork for his role in the Watergate scandal, during which Bork had fired special investigator Archibald Cox on the orders of President Richard Nixon.
.. The Democratic primary field was very full: There was Biden
.. Biden could not afford to stand by his earlier assessment of Bork and announced his opposition to the nomination shortly after it was made formal.
.. The 14 hours Senator Byrd had spent filibustering the Civil Rights Act of 1964 did not prevent him from becoming the Democratic leader in the Senate.
.. The Bork nomination, on the other hand, was an ordinary piece of government business elevated by Democrats to the status of national emergency in the service of narrow partisan interests. Biden was running for president, Kennedy was running for conscience of the Democratic party, and Byrd, frustrated by Republicans’ lack of cooperation on a number of his spending priorities, had promised: “They’re going to pay. I’m going to hit them where it hurts.”
.. The hysteria and vitriol directed at Bork were of a sort rarely seen since the early 19th century. But they quickly became commonplace.
.. But the rules of the game are not all there is to the game. What in another context might be called “sportsmanship” is in politics a question of prudence and even of patriotism, forgoing the pursuit of every petty partisan advantage made possible
.. The progress from Robert Bork to Merrick Garland is a fairly obvious story, but there is more to it than that:
- The increasing reliance upon legislative gimmicks such as omnibus spending bills and retrofitting legislation to fit with the budget reconciliation process,
- the substitution of executive orders and open-ended regulatory portfolios (“the secretary shall . . . ”),
- the prominence of emergency “special sessions” in the state legislatures,
- the absence of regular order in the legislative and appropriations process —
all are part of the same destructive tendency. Procedural maximalism in effect turns the legislative system against itself, substituting the exception for the rule and treating every ordinary item of business as a potential emergency item.
.. at the time, their numbers in the Senate were enough to secure their victory without a filibuster. But the course they set in those hearings — one of maximal confrontation, of reaching for whatever procedural cudgel is close at hand — led directly to our current state of governmental dysfunction.
.. at the time, their numbers in the Senate were enough to secure their victory without a filibuster. But the course they set in those hearings — one of maximal confrontation, of reaching for whatever procedural cudgel is close at hand — led directly to our current state of governmental dysfunction.
.. The recently proffered Republican health-care bill instantiates much of what is wrong with our politics:
The bill was constructed through an extraordinary process in which there were
- no hearings,
- no review from the Congressional Budget Office, and
- no final text of the legislation until shortly before the vote.
- The process is erratic and covert rather than regular and transparent.
- It was put together in a purposeful way to avoid substantive debate and meaningful public discourse,
making the most of the majority’s procedural advantages for purely political ends.
.. As Rod Dreher recently put it, Republicans will have to choose whether they love the rule of law more than they hate the Left.
.. Republican populists who argue that the GOP must play by the same rules in the name of “winning” have very little understanding of what already has been lost and of what we as a nation stand to lose.
The United States will not thrive, economically or otherwise, in a state of permanent emergency.
.. What’s truly remarkable about our current constant national state of emergency is that no one can say exactly what the emergency is. But we all seem to be very sure that something has to be done about it right now, that we must rouse ourselves to excitement about it, and that the ordinary rules of lawmaking and governance no longer apply.
There is not much political mileage to be had from arguing for regular order, transparency, and procedural predictability — but that’s part of what makes those things so valuable. Order in the little things is a necessary precondition of order in the big things. Orderly government cannot be built on a foundation of procedural chaos.
Acting Attorney General Orders Justice Dept. Not to Defend Refugee Ban
The decision by the acting attorney general is a remarkable rebuke by a government official to a sitting president that recalls the dramatic “Saturday Night Massacre” in 1973, when President Richard M. Nixon fired his attorney general and deputy attorney general for refusing to dismiss the special prosecutor in the Watergate case.
That case prompted a constitutional crisis that ended when Robert Bork, the solicitor general, acceded to Mr. Nixon’s order and fired Archibald Cox, the special prosecutor.
.. Aides to the president backtracked on Sunday, saying that lawful, permanent residents of the United States would not be barred by the order. But White House officials said the president had no intention of backing down from the order, which continues to shut the borders to refugees and others.