Linda Greenhouse is a distinguished journalist who won a Pulitzer for her writing about the U S Supreme Court for The New York Times. She has refrained from writing about the current election because it is the law rather than politics that has been the center of her professional focus. As it happens she watched the final debate with a group of lawyers, and when Trump made his statement about whether he would honor the results of the election,
everyone snapped to attention. Someone had to break the stunned silence, so as the only one in the room with journalism experience, it fell to me to state the obvious: “That’s the headline.”
That is from her Times column this morning, titled The Corrosive Election and the New Abnormal, which she begins by talking about taking her then 7 year old daughter to the 1993 inaugural, and hearing and then seeing the helicopter taking George H. W. Bush and his wife away — a normal transition of power.
Her focus in this exceedingly well-written column is the notion of the rule of law, to which she turns immediately after the words above. She writes:
What do I mean by that phrase? The rule of law isn’t readily reduced to a definition; we know it when we see it. It is both a process and an end state: the product not of a list of mandates but of ingrained habits, a collective turn of mind, shared expectations about how a civil society organizes its affairs and resolves its conflicts. We know that rules alone don’t suffice to create or maintain a rule of law; some of the world’s more odious governments have looked beneficent on paper.
But this is just an introduction, followed immediately by these words:
The rule of law provides confidence that what is true today will still be true tomorrow. It undergirds the resilience necessary to absorb the inevitable shocks any political system faces. Resilience takes a long time to grow. The European “unity” now fracturing under 21st century strain is a mid-20th century artifact. That’s not very much time. In the United States, we have thought, smugly, that we have all the time in the world. Maybe we don’t.
By now as I read she had my full attention. Why might we not?
She turns to the nomination of Merrick Garland, still in limbo, then follows by reminding us of the to me truly horrifying statement by John McCain that a Republican Senate would refuse to confirm ANY Supreme Court nomination by a President Hillary Clinton. While acknowledging the statement — soon pulled back by someone in McCain’s office — was truly nutty, she notes that nutty statements by politicians are not that unusual. But
What scared me was that for a few minutes after I first heard about it, it actually seemed plausible that it could happen — in other words, that the norms of political behavior have so ruptured that a respected member of the Senate, his party’s former presidential candidate, might actually have the will and maybe even the power to blockade the Supreme Court against an incursion by anyone nominated by a Democratic president.
That is clearly beyond what she considers the rule of law, and I remind you of her writing that it is “shared expectations about how a civil society organizes its affairs and resolves its conflicts”.
She wants to put what has happened to Garland in proper perspective. It is not at all like the rejection of Robert Bork, who had a hearing, a committee vote, and despite being reject by the Judiciary Committee a vote by the full Senate, where a bipartisan group of 58 rejected his nomination. Nor, she argues, did the Bork case set any kind of new standard, since his eventual replacement (after Douglas Ginsberg’s nomination was withdrawn), Anthony Kennedy, was unanimously confirmed. The next two Democratic nominees, by Bill Clinton,
Ruth Bader Ginsburg in 1993 and Stephen G. Breyer the next year, were confirmed by votes of 96 to 3 and 87 to 9.
Greenhouse reminds us that the Republican obstruction of Obama’s nominations extends far beyond Judge Garland:
Republican obstruction of President Obama’s nominations to the lower federal courts is equally ahistoric. Of the president’s 49 pending nominations, 38 have been waiting even longer than Merrick Garland for a vote.
Citing a Brookings study, the Senate since Republicans took control after the 2010 election has confirmed only 29% of the President’s nominations to the District and Circuit courts, while traditionally nominations to the District court are almost always confirmed ( here I note one important exception — Senator Jefferson Beauregard Sessions of Alabama was rejected by the Senate for a District Court position. The Judiciary Committee voted 10-8 against him, then split 9-9 on sending his nomination forward to the complete Senate, which killed the nomination. Citing the Brookings study on nomination from the beginning of the 7th year of a presidency through the summer recess in the 8th year, under Reagan (with Democratic Senate control) the rates was 80% of lower court nominations were confirmed, under Clinton 65%, and under the second Bush 59%. To this I will note going back that even after Jimmy Carter had been defeated for reelection the Senate confirmed Breyer to the First Circuit Court of Appeals.
While so far the lower courts are functioning, in part by the actions of Senior judges (who have retired) being willing to sit on cases,
the federal court system itself has identified 36 courts as suffering from “judicial emergencies,” defined by the ratio between the number of cases reaching a court and the number of judges available to decide them.
In addition, highly qualified lawyers are refusing nominations because they would have to put their own law practices on hold for up to year with no guarantee of confirmation — to lower court positions.
There can be no rule of law without a sufficient number of competent judges.
The Founders chose to try to isolate federal judges at all levels from the political process by not allowing their pay to be cut, and granting them service “during good behavior” so that they could not be fired, did not stand for reelection, and could only be removed by the impeachment process, a process that has been used against judges abouit 1 dozen times in more than 200 years.
Greenhouse closes her column by returning again to the notion of presidential transitions, citing the letter the first President Bush left for Bill Clinton. That ends with the words “Good luck.” And she ends by writing
This Election Day, good luck to us all.
I fear we need more than luck.
As a society we need a serious reexamination of our politics as well as our governance. Both our broken.
We are nearing the end of an election in which the media has provided little focus on policy and far too much, in the Presidential race, on the “gotchas” of politics, be they emails, Wikileaks, ridiculous statements by the Republican nominee, sexual behavior, etc. All of that has some relevance to our decision making, but should not crowd out coverage and discussion of other matters.
Trump’s refusal to commit to accepting the results of an election were beyond the pale. His threats to use the legal process to attempt to jail his opponent are also well beyond the bounds, although certainly not unknown in Republican circles — look at how Karl Rove and the Republican US Attorney in AL went after former Governor Don Siegelman, for example.
Trump’s statements did not occur in a vacuum. Even beyond the judicial crisis created by Republican refusal to act on the nominations of Merritt Garland and others to judicial positions, there is the famous meeting of January20, 2009, where Republican leaders plotted on how to obstruct the new President, there are the words of Mitch McConnell that his highest priority was to ensure that Obama did not get reelected — and although McConnell failed in that, his continued obstruction through use of the filibuster until he became Senate Majority Leader denied the American people the policies for which they had voted in re-electing Obama.
The rule of law is critical. That the Republican nominee is someone who his entire life has abused the legal system on its civil side — think contract law and bankruptcy for example — is only the latest symptom of the problem.
I posted about Greenhouse because I consider her column to be of great importance, and felt that others might not otherwise see it.
I have added my additional thoughts because I do not believe Greenhouse goes far enough.
We need to see restoration of Democratic control of both house of Congress not merely because of my desire to see Democratic policies, but because we truly need to move in the direction of restoration of the rule of law in its deepest sense, lest what we have is a hollow victory, that we find ourselves living in a democracy in name only.