New York Democrat may not impeach president, but his rigorous oversight will be a thorn in his side
Jerrold Nadler remembers when he began to figure out that you’ve got to fight back when life seems unfair.
It was 1957. Nadler was 10. He was at home in Brooklyn watching Disney’s film production of the 1943 novel “Johnny Tremain,” a young apprentice of silversmith Paul Revere on the eve of the American Revolution.
In the movie’s climatic scene, colonial lawyer James Otis delivers a rallying speech to revolutionaries in a cramped wooden attic in Boston.
Otis was the colonial lawyer whose five-hour speech in 1761 decrying British “writs of assistance” would later become the foundation of the Fourth Amendment protecting Americans from unreasonable search and seizure.
At the end of his winding speech, the fictionalized Otis scans the room and leaves his comrades with a parting message: “We fight and die for a simple thing — only that a man can stand.”
“I still remember watching it,” said Nadler, whom aides and confidants claim has a photographic memory.
.. First elected to Congress in 1992, Nadler is poised to become the next chairman of the House Judiciary Committee in January after the Democrat-controlled 116th Congress is sworn in.
Immigration, voting rights, and Justice Department oversight — read: Mueller investigation — are just three of the politically charged issues under the committee’s jurisdiction.
.. Nadler has likewise skirted around such questions, though he said he is eager to conduct oversight hearings on the Trump administration’s policies of
- separating immigrant families at the U.S.-Mexico border,
- increases in anti-Semitic incidents and hate crimes since the president took office, and
- voter suppression, not to mention
- Russia’s interference in the 2016 election.
.. “The question of impeachment is down the road,” Nadler told Roll Call in a wide-ranging interview in which he cast doubts over whether Democrats would ever reach a point where they would seriously pursue impeaching Trump.
“As far as impeachment is concerned, we have to see what Mueller comes up with,” Nadler said. “I certainly wouldn’t predict it.”
.. Though he hails from one of the most liberal districts in the country, New York’s 10th, Nadler’s political demeanor more closely resembles the calculated coolness of party leaders than the pot-stirring of liberal firebrands such as California Rep. Maxine Waters, the presumed next House Financial Services chairwoman
.. Multiple former aides could not identify a single hobby of his that didn’t include reading or debating public policy with his friends.
.. “Hobbies? He doesn’t have any,” said Brett Heimov, Nadler’s former Washington chief of staff. “Reading books — that’s his hobby.”
.. the only yeshiva-educated member of Congress. He does not drink. The most alcohol Nadler will consume is on Jewish holidays: a sip or two of Manischewitz for the Kiddush ritual.
.. He has retained senior staff in Washington and field directors in his district at an astonishingly high rate. Nadler’s Washington director, John Doty, has been with him since the congressman’s first full term. Same with his scheduler, Janice Siegel.
“Twelve years, 20 years, they’ve stuck with him,” said Manhattan Borough President Gale Brewer, a longtime friend. “He’s always had good staff around him.”
.. Just about the only thing that has changed about Nadler since the 1990s is his weight.
In the early 2000s, the congressman peaked at a gargantuan 338 pounds. The butt of countless bodyweight jokes, even among his peers, during the Clinton impeachment trial, Nadler used to take the elevator up to the second floor of the Capitol for votes because he just couldn’t make it up a lone flight of stairs. He underwent a stomach-reduction surgery during Congress’ August recess in 2002 and eventually cut his weight roughly in half.
.. Since arriving in Washington in 1992 after a 15-year stint in the New York state Assembly in Albany representing liberal Manhattan, Nadler has lived out of a suitcase in a series of hotels whenever he’s in town for work. For the first few years, he stayed at the Howard Johnson’s near the George Washington University campus.
.. From the start, Nadler opposed the sweeping 1994 crime bill that originated in the Judiciary Committee over the “three strikes” statute for previously convicted felons.
After the GOP picked up 54 seats and a majority in the Newt Gingrich-led Republican Revolution in the 1994 midterm elections, Nadler confronted Democratic leadership in a head-on clash to chip away at senior members’ monopoly of power at the committee and subcommittee level.
.. After the midterm trouncing, they agitated for a vote on a party rule that would bar Democratic chairs and ranking members from leading subcommittees, too. When Democratic leader Richard A. Gephardt refused, Nadler collected the requisite 50 petition signatures to force a vote.
The caucus voted to adopt the new rule, infuriating some members, including former Energy and Commerce Chairman John D. Dingell of Michigan, who was forced to give up one of his subcommittee posts.
“There were a number of committee chairmen who wouldn’t talk to me for years after that,” Nadler recalled. The clash over the rule, still the party standard, is largely forgotten these days.
Nadler didn’t make waves on the national scene until four years later, though, in 1998 when he emerged as one of Clinton’s most outspoken defenders during the impeachment proceedings.
Nadler relished being a nettle for Republicans as they pursued allegations that Clinton had perjured himself when he told independent counsel Ken Starr in a deposition that he never had a sexual relationship with White House intern Monica Lewinsky.
The New York congressman was a frequent guest on CNN and other TV networks, on which he argued that Clinton may well have perjured himself — but that alone was not grounds for impeachment.
.. “An impeachable offense is an abuse of presidential power designed to or with the effect of undermining the structure or function of government, or undermining constitutional liberties,” he told the crowd of several hundred.
.. “The fact is, impeachment is not a criminal punishment,” Nadler told Roll Call. “There are crimes that you could commit that are not impeachable offenses and there are impeachable offenses that are not crimes. They’re different tests.”
.. During the Clinton impeachment proceedings, Nadler believed a crucial function of the Judiciary Committee was to educate Americans about that distinction between crimes and impeachable offenses.
He pushed for, and secured, a Judiciary hearing in 1998 to answer what constitutes an impeachable offense, even though Democrats were in the minority.
.. “The purpose of the whole impeachment process is to protect the integrity of liberty and of the rule of law and of government, to protect against a person with aggrandized power or who destroys the separation of powers or something like that,” Nadler said.
.. “If you’re serious about removing a president from office, what you’re really doing is overturning the result of the last election,” Nadler said. “You don’t want to have a situation where you tear this country apart and for the next 30 years half the country’s saying ‘We won the election, you stole it.’”
.. And by bipartisan support for impeachment, Nadler does not mean winning over Republican lawmakers.
“I’m talking about the voters, people who voted for Trump,” he said. “Do you think that the case is so stark, that the offenses are so terrible and the proof so clear, that once you’ve laid it all out you will have convinced an appreciable fraction of the people who voted for Trump, who like him, that you had no choice?
.. He has already promised to investigate the circumstances surrounding Sessions’ firing.
.. Part of that probe will focus on “cooperation” between Russians and Americans, including, potentially, some members of Trump’s inner circle
.. Legislatively, one of his top priorities will be to strike a deal with the Republican president and Senate on immigration, an elusive feat for recent administrations.
Taxes and health care aren’t the only things on the ballot.
It’s a near-certainty that Democrats will receive more votes than Republicans, with polling suggesting a margin in votes cast for the House of Representatives of seven or more percentage points — which would make it the biggest landslide of modern times. However, gerrymandering and other factors have severely tilted the playing field, so that even this might not be enough to bring control of the chamber.
.. In fact, it’s not hyperbole to say that if the G.O.P. holds the line on Tuesday, it may be the last even halfway fair elections we’ll ever have.
.. Look at what’s happening in Georgia, where Brian Kemp — the Republican secretary of state, who oversees elections — is running for governor against Democrat Stacey Abrams. In any other democracy, letting a man supervise his own election would be inconceivable. But that’s how it is in Georgia, and Kemp is abusing his power to the max.
.. In recent years Kemp has purged millions of names from Georgia’s voting rolls, on dubious grounds. Finding himself in a close race despite these efforts, he tried to purge even more based on criteria so spurious that the courts have — for now — blocked his efforts. So over the weekend Kemp’s office issued a warning, with no evidence or specifics, that Democrats may have tried to hack the voter registration site.
A political party with any kind of commitment to democracy and fair play would treat Kemp as a pariah. Instead, he has the full support of the national G.O.P.
.. And Georgia is far from unique. There have been similar if less spectacular attempts to rig the vote in Kansas and North Dakota, where would-be absentee voters were told that they had to use the right color ink— and were given conflicting information about what color was acceptable.
.. The lesson we learn from all these abuses of power is that today’s Republicans are just like their fellow white nationalists in Hungary and Poland, who have maintained a democratic facade but have in reality established one-party authoritarian regimes.
.. Oh, and in case you’re tempted to bothsides this: No, both sides don’t do it. Voting restrictions are almost entirely a Republican thing. As always, Democrats aren’t saints, but they appear to believe in democracy, while their opponents don’t.
.. the media said it anyway), while tending to dismiss talk about Republican abuse of power as hysterical.
Though Democratic presidential candidates have won the popular vote in every single election since 1992, except one, Republicans have managed to secure a far-right majority on the US Supreme Court. As a result, the Court’s claim to be a neutral, non-partisan arbiter for pressing constitutional questions is quickly losing credibility.
.. the nomination of Brett Kavanaugh to a seat on the Supreme Court marks the culmination of a decades-long campaign by the right-wing Federalist Society to reshape the judiciary. For those devout conservatives and their monied backers, faced with the prospect of massive demographic and generational shifts in the country’s body politic, the strategy has long been to find a way to limit severely access to authentic democratic governance in the United States for generations to come. They now seem on the verge of achieving their goal.
.. since 1988, Republican presidential candidates have won the popular vote in presidential elections – the only consistent measure of national voter intent – just once, when George W. Bush was reelected in 2004 after a period of national unification following the September 11, 2001, terrorist attacks. In every other presidential election (1992, 1996, 2000, 2008, 2012, and 2016), the Democratic candidate won more votes than the Republican candidate.
.. considerable evidence has accumulated that Thomas acceded to that seat by committing perjury during his Senate confirmation hearings.
.. Nine years later, Thomas would go on to join the 5-4 majority in Bush v. Gore, in which the Court ruled that Florida’s 2000 election recount must stop. In doing so, he helped hand the presidency to the son of the man who had appointed him, and denied it to Al Gore, who had won the national popular ballot by more than 500,000 votes.
.. So obtuse was the majority’s written opinion in that case that the ruling actually came with a remarkable disclaimer that it should never be cited as precedent in the future.
.. In 2005, he appointed the current chief justice, John Roberts, to replace William Rehnquist; and in 2006 he appointed Samuel Alito to replace Sandra Day O’Connor.
.. Obama bent over backwards to assuage them, nominating Merrick Garland, the moderate Chief Judge of the US Court of Appeals for the District of Columbia Circuit.
.. Mitch McConnell, succeeded in stymieing the president’s constitutional authority to appoint Supreme Court justices with the “advice and consent” of the Senate.
It bears mentioning that, at this time, the 54 Republicans in the Senate had collectively received 20 million fewer votes than their 46 Democratic colleagues. The Republicans owed their majority strictly to the Senate’s anti-democratic composition, whereby each state is represented by two senators
.. This scheme was one of many concessions made to slave states during the drafting of the Constitution, and with the rise of urbanization, it has come to have an increasingly distortionary effect on American politics. For example, Wyoming’s two senators represent 563,767 people (according to the 2010 census), whereas California’s senators represent 37,254,518.
.. Moreover, Clinton achieved her high popular-vote margin despite widespread voter-disenfranchisement campaigns aimed at Democratic-leaning voters in states controlled by Republicans.
.. In Florida, where elections are regularly notoriously close, more than 1.5 million citizens (over 10% of the state’s total number of adults, and one in five African-Americans) are denied the vote owing to nonviolent criminal convictions, even after they have served their time in prison.
.. Despite having no democratic mandate to speak of, Trump and the Senate Republicans wasted no time in confirming Neil Gorsuch to Garland’s rightful seat on theCourt.
.. Kavanaugh was selected by a president who has been implicated in a felony allegedly committed in pursuit of the office he now holds. That alone calls into question Trump’s legitimacy. But he is also the subject of an unprecedented investigation into his campaign’s possible collusion with a hostile foreign power – an investigation that has already resulted in more than 20 guilty pleas or felony convictions.
.. Kavanaugh, a member of the legal team that persuaded the Supreme Court to hand Bush the presidency in 2000 (thereby hastening the whole grim cavalcade of misbegotten) was most likely selected for his conspicuous support of executive authority in the past. His interpretation of the president’s powers seems to brook no limits, and would likely open the door for Trump to ignore a grand-jury subpoena and even shut down the investigation of his campaign.
.. With his party still enjoying a two-vote (minority-elected) majority in the Senate, McConnell has shown no compunction about ramming Kavanaugh’s dubious nomination through that body. That leaves no alternative but to consider the dire implications of a Supreme Court dominated by the Misbegotten Majority: Thomas, Roberts, Alito, Gorsuch, Kavanaugh. What will this judicial coup mean for reproductive, criminal, labor, and civil rights?
.. More to the point, one of the main threats posed by the new Court is what it will do to voting rights and the laws governing elections – that is, the democratic process itself. Decisions that bear on the outcomes of elections could very well upend the functioning of the other two branches of government, thereby blocking all other possible avenues of redress available within theConstitution’s wider system of checks and balances.
.. Of course, this has been the Republicans’ idea all along. For decades, the Federalist Society, which has overseen all of Trump’s judicial nominations, has understood that cultural and demographic trends are poised to strip the power of its wealthy, predominantly white male sponsors. That cohort is in the process of dying out, and the majority of future voters – and, indeed, current voters, judging by recent popular-vote counts – will be younger, more diverse, more tolerant, and considerably further to the left on economic matters.
To forestall this outcome of democracy, conservatives’ first instinct was to limit the franchise itself. The broad demographic and generational changes underway could be nullified by denying key constituencies the right to vote. And when that wasn’t possible, the next best option was to tamper with electoral outcomes by means of untraceable “dark money” and gerrymandering. The result is that Austin, Texas, one of the most liberal cities in America, is represented in the House of Representatives by four Republicans and just one Democrat; and North Carolina, a state that is evenly divided between Republican and Democratic voters, is represented by ten Republicans and just three Democrats.
.. He was also on board for the decimation of the 1965 Voting Rights Act, which for a half-century had prevented blatant racial discrimination in districts with documented histories of disenfranchising African-Americans and members of other minority groups. And he routinely passed the buck on gerrymandering cases.
.. Citing so-called states’ rights, the Court might start by overturning a recent 3-0 federal circuit court decision ordering North Carolina to redraw its egregiously gerrymandered congressional districts. With that precedent in place, other states will be able to step up their own voter-suppression efforts across the board.
.. For example, some states might decide to deny college students the right to cast absentee ballots, or to vote in jurisdictions where they have not established a permanent residency (or both). Others may think to impose property requirements for voter eligibility, or to “save costs” by shutting down polling stations in, say, Latino neighborhoods.
Still others might require non-drivers to show another form of state-issued identification, which can be acquired only at some remotely located administrative office.
.. retaking the House in 2018 won’t do the Democrats much good as far as the Court is concerned. All of the constitutional checks on the judiciary rest with the Senate.
.. when it comes to voting rights, gerrymandering, and other election-related cases, he has been one of the justices leading the charge from the right.
.. Whereas Democratic presidents have based their appointments to the Court on merit, Republicans have made a point of selecting younger jurists who will remain on the bench for decades.
.. All of this will be justified on the grounds of “originalism” – the FederalistSociety/Scalia doctrine of sticking to the strict letter of the Constitution as intended (according to them) by its authors at the time of its promulgation. Never mind that in 1787, only propertied men took part in the Constitutional Convention, and that a sizeable plurality were slaveholders zealously guarding their right to treat people like chattel.1
.. if individual states try to enact progressive policies on their own, they should be prepared for the Misbegotten Majority suddenly to suspend its much-vaunted devotion to “states’ rights” and strike those down, too. After all, that is the job their sponsors put them there todo. They will not soon forget that they are part of a decades-long project of minority rule.
.. After 2020, more avenues for the proper functioning of checks and balances could open up, especially if the Democrats win the White House and the Senate. Frustrated by their democratically legitimate legislation being scuttled by a misbegotten Court, they could see fit to draft articles of impeachment against Thomas.
.. The journalists Jane Mayer and Jill Abramson have marshaled clear evidence that Thomas lied under oath throughout his confirmation hearing on matters pertaining to his past behavior toward female co-workers and subordinates. And Kavanaugh himself may be facing similar jeopardy with regard to possible perjury in his own confirmation processes.
.. Alternatively, Democrats could pick up where former President Franklin D. Roosevelt left off, by trying to expand the size of the Court, which can be achieved through legislation. But, given the squishiness of swing-state Democrats, a court-packing gambit could fail, as it did with Roosevelt; or, even worse, it could backfire by setting a dangerous precedent for Republicans to follow when they return to power.
.. America would hardly be the first democracy in history to succumb to plutocratic autocracy verging on fascism.
While Trump is destroying the honor and reputation of the presidency, Senate Republicans are doing all they can to destroy the legitimacy of the Supreme Court.
.. They want a Supreme Court that will achieve their policy objectives — on regulation, access to the ballot, social issues, the influence of money in politics and the role of corporations in our national life — no matter what citizens might prefer in the future.
.. His confirmation will be the equivalent of handing the court over to the Heritage Foundation and the legal staff of Koch Industries.
.. It is characteristic of hypocrites to be unctuous and judgmental. How else to describe the attitudes of the GOP senators rushing Kavanaugh to the bench, and their defenders in the conservative legal academy who long to undo 75 years of court precedents?
.. when Democrats on the Judiciary Committee howled about rigged hearings and did whatever they could to bring more information to light, Republicans primly accused them of lacking civility.
.. The talk of civility is laughable in light of the Republicans’ refusal to give Garland — a judge whose quality Kavanaugh himself extolled — either a hearing or a vote. That was not just incivility, it was an abuse of power reflecting the political right’s determination to seize control of the court by any means necessary.
.. But by voting to confirm Kavanaugh, they would be ratifying everything in politics they claim to be against. This is not just about their pledges to protect the right to choose on abortion. It’s also a test of whether they mean what they say about wanting politics to be less partisan and more consensual. Caving in to the power brokers and ideologues on this will follow them for the rest of their careers.
.. If the Trump era produces a backlash so strong that a Democratic president and Congress pass breakthrough economic and social policies, conservatives will count on their court majority to block, dismantle or disable progressive initiatives.
.. This is a fight about democracy itself. Right now, democracy is in danger of losing.