Let’s Ditch Mitch

The Senate majority leader comes out of his shell.

Mitch, on the other hand, has a longstanding alliance with the National Rifle Association, which has shown its affection to the tune of about $1.3 million in support. Anything the N.R.A. dislikes never gets the chance to come up for a Senate vote. Reauthorization of the Violence Against Women Act is moldering away in a corner because the N.R.A. doesn’t want authorities taking guns away from domestic abusers.

It’s been another terrible year of mass shooting violence. One simple, very popular response would be to improve the background checks for gun purchases. It would at least show our elected officials care about the crisis.

Such a bill passed the House of Representatives and went to the Senate where it’s, um, lying around somewhere. “There’s a whole bunch of Republican support, but he won’t let it move to the floor,” said minority leader Chuck Schumer.

This goes on a lot. McConnell, who has near total control over what comes up for a vote, sits on things he doesn’t like until they smother. Farewell, immigration reform, Paycheck Fairness Act, legislation protecting Americans with pre-existing conditions, lowering prescription drug prices, protecting election security, restoring net neutrality.

Cruz: GOP may block Supreme Court nominees indefinitely

In a vintage return to his confrontational style, Sen. Ted Cruz indicated that Republicans could seek to block a Democratic president from filling the vacant Supreme Court seat indefinitely.

After staking his endorsement of Donald Trump on a list of potential conservative Supreme Court nominees, Cruz said on Wednesday that there is precedent to limiting the Supreme Court to just eight justices. Last week, Cruz’s colleague, Sen. Jeff Flake (R-Ariz.), suggested the GOP should confirm President Barack Obama’s nominee, Merrick Garland, to avoid having to swallow a more liberal nominee under Hillary Clinton.

As is his nature, Cruz took a harder line when asked how Republicans would handle a potential Clinton nominee while campaigning in Colorado for Darryl Glenn, a longshot candidate for the Senate.

“There will be plenty of time for debate on that issue … There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have,” Cruz said, in remarks first reported by The Washington Post.

Cruz was unlikely to vote for any Democratic nominee given his conservative ideology, but his remarks could indicate a broader shift within the GOP to halt Democrats from shifting the court’s balance to the left. Sen. John McCain (R-Ariz.) said earlier this month the GOP would be “united” in blocking a Clinton appointment, remarks he later softened.

An indefinite GOP blockade of a Supreme Court nominee would almost certainly lead to an erosion in the Senate’s supermajority requirement. Senate Minority Leader Harry Reid has already suggested lowering the bar for Supreme Court nominee from 60 votes to a simple majority. Under Reid, Democrats changed the Senate rules to allow all nominees but Supreme Court appointments to be approved by a majority vote.

Merrick Garland Supreme Court nomination

Following the February 2016 death of Associate Justice of the Supreme Court Antonin ScaliaPresident Barack Obama nominated Merrick Garland to fill Scalia’s seat on the Supreme Court on March 16, 2016. At the time of his nomination, Garland was the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Scalia’s death led to an unusual situation in which a Democratic president had the opportunity to appoint a Supreme Court nominee while the Republicans controlled the United States Senate; before Scalia’s death, such a situation last occurred when a Senate Republican majority confirmed Grover Cleveland‘s nomination of Rufus Wheeler Peckham in 1895.[1] Conversely, in February 1988, during an election year, the Democratic-controlled Senate confirmed Anthony Kennedy, who was the Republican President Ronald Reagan‘s nominee for the Supreme Court, though Kennedy had been nominated in November 1987 to replace Lewis Powell who was nominated by Richard Nixon, and the vacancy had occurred in June 1987.[2] On October 9, 1990, the Democratic controlled Senate (55–45) confirmed President George H. W. Bush appointee, David Souter, 90–9. On October 15, 1991, that same Senate confirmed Clarence Thomas, 52–48.

Kavanaugh’s accuser might be better off with a criminal trial. So might Kavanaugh.

Years later, Hill said that testifying during Clarence Thomas’s Supreme Court confirmation hearing was “worse than being put on trial, because in a trial you’ve got legal protections.”

.. But in some ways, a criminal trial might be better than testifying before the Senate Judiciary Committee — at least for Ford.

.. At Thomas’s confirmation hearing 27 years ago, Republicans knew they were essentially going to turn the hearing into something like a trial, recalled Barbara A. Mikulski, the Maryland Democrat who at the time was in her first term as a U.S. senator. “And Professor Hill would be the one on trial,” she recalled recently.

.. Ford might be better off as a complainant in a criminal case than at the mercy of a Senate committee with a partisan chairman unlikely to rein in its members.

.. At a criminal trial, juries are drawn from the general population and winnowed through in an adversarial process. The prosecutor and defense attorney work to eliminate bias and select a group to take on the role of juror effectively.

It’s not unheard for jurists to come in with preconceived notions, though jurors are not supposed to deliberate until all the evidence has been presented. Publicly voicing a prejudgment, however — as several Republican senators have already done — would constitute grounds to dismiss a prospective juror.

And yet those biased senators, with their preconceived notions, will be free to participate in the hearing should Ford come to Capitol Hill to testify.

Sen. Orrin G. Hatch (R-Utah) said that Ford must be “mistaking [Kavanaugh] for someone else,” in a statement to Fox News. (Hatch also questioned Hill in 1991, and famously referred to her as an “allegator.”)

.. Sen. John Cornyn (R-Tex.) said he was concerned by “gaps” in Ford’s version of events.

.. Senate Majority Leader Mitch McConnell chimed in Friday, assuring attendees at a summit in Washington D.C. for social conservatives that the Senate would “plow right through” to confirm Kavanaugh.He previously led a year-long Republican filibuster stonewalling President Obama’s Supreme Court nominee, Merrick Garland, from the same bench.

.. Sen. Doug Jones (D-Ala.), a former U.S. Attorney, responded to McConnell’s statement Saturday, saying on Twitter that if a trial judge or impaneled juror said “their mind was made up before all testimony is in,” it would be grounds for a mistrial.
.. The rules of evidence aren’t enforced at congressional hearings. But they would apply in a criminal case, benefiting both Kavanaugh and Ford, according to Aidala. Those rules preclude questioning on matters deemed inadmissible and those not relevant to deciding key issues.
.. “For Ford, I don’t know how far afield the senators will go about talking about her sexual exploits in high school and college; but they wouldn’t be able to do that in a court of law,”

.. These protections, crafted for sex crime victims, limit admissible evidence about a victim’s past sexual behavior.

.. More importantly, perhaps, the case would be presided over by a neutral judge, who would control all aspects of the trial and maintain courtroom decorum. A judge would also prevent attorneys from badgering testifying individuals; though trials feature drawn-out cross-examinations, lawyers cannot repeatedly rehash the same topic.

.. For Ford and Kavanaugh both, Aidala said, “the protection they have at a trial is that the lawyers aren’t playing to a constituency, or thinking about what video clip an opponent will replay during a reelection campaign.
.. senators have different motivations and are playing to a different audience.

.. Criminal defense attorney Roy Black told The Post that the problem with the Senate is that lawmakers are prejudiced, one way or the other.

“They all make speeches and then say, ‘What do you think about that?’ ” he said. “They don’t want to ask questions, and their minds are already made up. It’s very ineffectual when you have a real witness.”

.. The Judiciary Committee’s role here is not to determine guilt or innocence but to advise the Senate on whether to confirm Kavanaugh. The committee is not bound by the criminal standard of proving guilt beyond a reasonable doubt, either.

.. If Kavanaugh was charged with attempted rape, there must be proof beyond a reasonable doubt that Kavanaugh tried to rape her, “and that the assault, which happened so many decades ago, went far enough across the line to constitute an attempt,” he said.

.. As a criminal defendant, shielded with the presumption of innocence, Kavanaugh would not be required to testify or put forth any evidence in his defense.

Still, Black said that he would probably call Kavanaugh to the stand.

“He makes a good witness. He’s smart, he’s presentable, he’s articulate, and he’ll categorically deny it, so I don’t see any downside,” Black said.

.. whether Judge wished to testify at a criminal trial would be irrelevant.

.. Ford claimed that Judge was in the room, making him the sole known eyewitness and, therefore, a material witness. The prosecutor bears the burden to prove her case beyond a reasonable doubt, and she would necessarily subpoena Judge, even if it required arresting him and hauling him in. Failing to call Judge to the stand would result in a jury instruction against the prosecution’s case.

.. Judge signed off at Georgetown Prep with a Sir Noel Coward quote in the school’s yearbook: “Certain women should be struck regularly, like gongs.”

.. He has described himself as having had a blackout drinking problem, and his 1997 memoir, “Wasted,” references high school “masturbation class,” “lusted after girls” at other Catholic schools and a “Bart O’Kavanaugh,” who passed out drunk and threw up in a car.

.. “I think Ford may well be telling the truth, but when you’re putting forward a proposition — in a criminal court, the Senate or an administrative hearing — there has to be some way of determining the truth,” he said. “You cannot punish someone on the testimony of one person, saying this happened 30 years ago, with no corroboration.”