Kavanaugh v. Ford et al.

(Photo Credit: Getty Images)

So… apparently, there was something going on in Washington today?

Any surprises? No… Did we learn anything new? Not really… a minor thing, we learned that Rachel Mitchell was in contact with the Majority Staff of the U.S. Senate Judiciary Committee last week, and not just a couple of days ago as had been implied… but that’s about it, and that’s relatively minor. So what’s going on? What are we to believe?

Facts:

  • So, many people -good people- are asking what the facts are. Less inquisitive people are conversely more partisan and presume to know the facts already of course. But, no, I don’t think any of us know the facts or will ever know the facts. These are the facts, and they are indisputable:
  • The fact is that Dr. Christine Blasely Ford has accused Brett Kavanaugh of sexual assault.
  • The fact is the allegation is from 36 years ago.
  •  Her details about the party are fuzzy, but her details of the alleged assault are specific.
  • The fact is that Brett Kavanaugh has categorically denied the allegation.
  • The fact is that Brett Kavanaugh’s submission to his high school yearbook implies a conquest of women mentality.
  • The fact is that the other person named as being present, Mark Judge has categorically denied the allegation.
  • The fact is that Mark Judge wrote a book about his cavalier and brazen childhood that seems to corroborate the type of party that Dr. Ford describes.
  • The fact is that Brett Kavanaugh has admitted to underage drinking and partying. This has been dismissed by sympathetic media under the disclaimer of ‘everybody does it.’
  • The fact is that Dr. Ford told a therapist of the alleged assault years ago before Brett Kavanaugh was a Supreme Court nominee.
  • The fact is that the relative location of the party, as described by Dr. Ford, is not near the residences of either Dr. Ford or Judge Kavanaugh.
  • The fact is that Dr. Ford has taken a polygraph, administered by a former member of the FBI.
  • The fact is that Brett Kavanaugh has been screened by the FBI six times in his career.
  • The act is that there are at least 6 Levels of FBI background-checks and that not all background checks are equal.
  • The fact is that Dr. Christine Blasely Ford is a registered Democrat.
  • The fact is that Dr. Christine Blasely Ford has put her reputation, anonymity, and (to a degree) her career on the line.
  • The fact is that Judge Kavanaugh is still a U.S. Circuit Judge on the D.C. Circuit Court, regardless of the outcome of the U.S. Senate vote.
  • The fact is that, as Judge Kavanaugh stated today, no allegations were raised in her earlier and very public career.
  • The fact is that the appointment to the U.S. Supreme Court is unlike any other position with the exception of President of the United States.

Optics:

Factual optics

  • If I’m sympathetic to Dr. Ford, I came out of the hearing finding her believable and a sympathetic heroine.
  • I’m adverse to believing Dr. Ford; I came out of the hearing finding her gaps in recollection -of even things within the past two months, to be troubling.
  • If I’m sympathetic to Judge Kavanaugh, I came out of the hearing finding him believable and tragic hero.
  • I’m adverse to believing Judge Kavanaugh; I came out of the hearing finding his absolute denials to be, well just a bit too absolute considering the multiple circumstantial accusations.

Partisan Optics

  • If I’m sympathetic to Dr. Ford, I found the line of questioning by Rachel Mitchell to be a pathetic avoidance of responsibility by the 11 White Men of the Republican majority in the face of the Democratic minority which includes four women.
  • If I’m sympathetic to Judge Kavanaugh, I found the line of questioning by Rachel Mitchell to be an extension of incredible courtesy to a woman alleging sexual assault by a man.
  • If I’m sympathetic to Dr. Ford, I’m wondering why a prosecutor was brought in to ask questions, and I’m wondering why the same prosecutor didn’t question Judge Kavanaugh.
  • If I’m sympathetic to Judge Kavanaugh, I’m wondering why Senator Feinstein had information about Dr. Ford’s allegation and did not inform the full Judiciary Committee immediately.
  • If I’m sympathetic to Judge Kavanaugh, I thought his anecdote about his daughter’s prayers was moving. If I’m sympathetic to Dr. Ford, I believe that is an example of pathos, not ethos or logos.
  • If I’m sympathetic to Dr. Ford, I believe Kavanaugh’s point-by-point refutation of the allegations to Senator Kennedy at the end of the hearing like ‘lawyerese’ and a guilty man’s argument. If I’m sympathetic to Judge Kavanaugh, I thought his point by point response to Senator Kennedy was total and encompassing, sworn before God and Country.

Concluding facts:

The fact is that the appointment to the U.S. Supreme Court is unlike any other position with the exception of President of the United States.

  • Tom Eagleton was a successful US Senator, MO State Attorney-General, and Lt. Governor of MO, but when considered for to be the nominee for Vice President of the United States, his use of electrotherapy to combat depression became public, and he withdrew his nomination.
  • Zoe Baird was a successful lawyer, worked as Attorney-Advisor at the Office of Legal Counsel at the U.S. Department of Justice from 1979 to 1980 and was Associate Counsel to President of the United States Jimmy Carter from 1980 to 1981. Baird had very high profile positions, just as Kavanaugh had as a lawyer in the Ken Starr investigation and later Staff Secretary in the Bush White House. Yet, after being nominated to be US Attorney-General, it came out that Baird had hired illegal immigrants and failed to pay taxes.
  • President George W. Bush nominated well-known and highly regarded Bernard Kerik to become United States Secretary of Homeland Security, but Kerik withdrew from the nomination, after acknowledging that he had unknowingly hired an undocumented worker as a nanny and housekeeper.
  • No one accused U.S. Senator Tom Daschle of misconduct for his 18 years in the Senate, but after his nomination to be HHS Secretary in the Obama Administration, Daschle’s’ failure to report and pay income taxes accurately became known, and he withdrew his nomination.
  • And the list goes on and on… Kimba Wood, Bobby Ray Inman, Hershel W. Gober, Linda Chavez, Andrew Puzder, Ronny Jackson

The fact is that scandals break no matter how many times a candidate or nominee has already been vetted as the candidate or nominee is elevated higher and higher. The argument that Kavanaugh had already been vetted is not a reasonable argument.

I want to make it clear; in my Op-Ed in the Providence Journal July 26, 2018, I definitively stated that Kavanaugh was qualified to be confirmed as an Associate Justice of the United States Supreme Court. I firmly believe the President of the United States has the right to nominate his person to the Court. Barack Obama had that right, and Donald Trump has that right too.

At this point, however, there is too much of a cloud of suspicion. Kavanaugh ought not be confirmed to the Court at this point. Either a full deep FBI investigation should be authorized, and the vote on confirmation in committee and certainly on the floor of the Senate should be postponed, or the nomination should be withdrawn. I do not recall any accusations against Associate Justice Neil Gorsuch during his nomination process, and that seat would have changed the balance of power in the US Supreme Court. The argument that this is merely a smear campaign or Democrats seeking their pound of flesh is illogical. Is there a political angle to these events, absolutely, just as there was a political angle to the Senate Republicans block of the Merrick Garland nomination. Democratic partisanship does not necessarily mean that Brett Kavanaugh is innocent. The Democrats can be playing partisan games, and Judge Kavanaugh may be guilty of some wrongdoing; the two are not mutually exclusive. The Supreme Court is a privileged, not a right.

The Democratic strategy is not without risks; a different nominee might be another Samuel Alito, not a Harriet Miers. A withdrawal may be an ideological loss for the Republicans as well. A different nominee may be, ironically, another Anthony Kennedy and not a Robert Bork. As I concluded in my Op-Ed, “So, who is the real Brett Kavanaugh?” Well, after the confirmation hearings and today’s extended hearings, I’m not sure any objective person knows. I’m not sure we will ever know. Do we want doubts around another member of the Supreme Court? I’m not comfortable with another Clarence Thomas – Anita Hill situation. I’m not comfortable with 11 men pushing through the confirmation of a man, nominated by a man to fill the seat of a man. The optics and lingering doubts are too much for me, though I do believe that President Trump has the right to nominate a conservative to the Supreme Court of the United States.

 

Phenomenal Females: Heroines of Herstory

We are all Uyghurs

We are all Uyghur too

(Photo credit: https://www.govtrack.us/congress/bills/115/hr565)

Je Suis Charlie? United We Stand, #BostonStrong, even, BlackLivesMatter and #MeToo. We Americans are a sympathetic, but sometimes selectively sympathetic people. To me, the most common limitations to our sympathy are limitations to our identity formation, limited education, and the reality of power dynamics domestically and internationally.

Limitations to Identify Construction

          It’s my opinion that if we look at what I call the Big 5 in Identity Construction -Race, Ethnicity, Nationality, Religion, and Gender- the more closely we identify with the dominant demographic group, the less likely we are to understand or sympathize with the non-dominant groups. Or, to put it another way: Uyghurs (also spelled Uighur, Uigur, and Uygur) are a stateless, Central Asian ethnic group who practice Islam. Since most Americans are not Central Asian, nor Muslim, and have never met a Uighar then it is harder to notice or sympathize with their plight; it is far easier to ignore.

Limited Education

It is harder to notice because, after all, who’s going to tell us? Our education system favors American history -which is understandable up to a point, but I personally studied US History in 5th, 7th, 8th, 11th, and 12th grades. And that doesn’t include state history in 4th grade that certainly overlapped with US History. And when our social studies classes do study other nations and nation-states, it does so with a Western European bias. After all, not only are most Americans of Western European descent, but Western Europe has been the dominant part of the world for centuries prior to American hegemony and has influenced American culture far more than, well, Central Asia for example.

So, if not our education system, what about the news? We have print news, radio news, TV news… surely, we’d hear about a looming genocide in our news, right? No, of course not. The 24-hour news culture is obsessed with the Swamp Soap Opera in Washington, DC, business news and imagined wealth from Wall Street, NY and LA pop culture… more seriously, there are stories of #MeToo, #LivesMatter, #NFLKneelers, crime, school shootings, and stories of local interest that eat up our attention span and clog our access to news outside of America, let alone news about a small stateless group of people in the middle of Central Asian.

Power Dynamics

          Really, its an issue of Power Dynamics. Textbooks, for example, are an expression of political and economic power. How else would you explain pages after pages about the Texas Republic, when Texas was not part of the US, in a US History textbook? Do we have pages after pages on the Hawaiian Kingdom? Pages after pages on the Shay and Whiskey Rebellions in the populous states of MA and PA, but rarely even a mention of Dorr’s Rebellion in the littlest state in the Union, Rhode Island? While most Americans are of Western European descent, Americans are certainly aware of India and China, as there are 1 billion people in each country and the US does considerable business with both countries. Heck, both countries have the nuke too, right? The Uyghurs have no worldly significant population (15 million), no nuke and, heck, don’t even have a nation-state…

You’re Forgiven

          So, if you’re still in school, you can be forgiven; if you’re an average guy like Joe the Plummer or Rosie Riveter, you can be forgiven for not knowing about the Uyghurs detention and incarceration. After all, the corporate media chooses what news to cover, right? But if you’re a teacher, perhaps you can help change the paradigm of neotribalistic news coverage, if you’re involved in your religious community or a church leader, perhaps you can speak up and speak out. If you’re a politician in Washington, perhaps, just perhaps, you could live up to the ideals of this country. This country which proudly remembers ending the Second World War and stopping German Nazism… and has done little to stop every genocide since. On February 19, 2005, I wrote this in the Providence Journal:

“During its commemoration of the 60th anniversary of the liberation of the Nazi death camps, those present chanted, “Never again.” Yet since 1945 the world has ignored, or been extremely slow to deal with, the genocides of Pol Pot’s Cambodia, Milosevic’s Yugoslavia, Rwanda-Burundi, and, today, Darfur.
 
How can someone say, “Never again,” and then fail to stop the slaughter of innocent people being killed simply because of their ethnicity and/or religion?”

And not much has changed since. The Darfur Genocide, the Yazidi Genocide, the Second Assyrian Genocide, the Rohingya Genocide, and now the beginnings of a Uighar Genocide. If you’re a member of Congress who sits on the Senate Foreign Relations or House Foreign Affairs Committee, how dare you deposit your paycheck, how dare you run for re-election?

Because Uyghurs look differently than you, pray differently than you, it’s not an issue to bring to the attention of American people?

We have a subcommittee that is literally called the Subcommittee on Near East, South Asia, Central Asia, and Terrorism led by Republican Jim Risch of Idaho and Democrat Tim Kaine of VA. Where are our Senators on the Uyghurs internment camps? The House Foreign Affairs Committee is led by Republican Ed Royce (CA-39) and Elliot Engle (NY—16). The Committee has a subcommittee named Asia and the Pacific led by Republican Ted Yoho (FL-3) and Brad Sherman (CA-30)… And where are they on this crisis; where are our Representatives on the Uyghurs internment camps?

Even more specifically: If you’re Congressman Dana Rohrabacher who introduced the Save Christians from Genocide Act, or Congressmen Chris Smith (R-NJ) and Anna Eshoo (D-CA) who introduced the Iraq and Syria Genocide Relief Accountability Act for the Christian Genocide… then you are hypocrites and grandstanders, not leaders. And what Americans need are leaders in Congress, leaders in the State Department, leaders in the White House who stand up for the stateless people of the world, stand up for human rights, and stand up for the Uyghurs people.

Uighars, Uyghurs or Uygurs

The Uyghurs are a Turkic ethnic group in Central Asia. Ironically, most Uyghurs live in a section of China called the Xinjiang Uyghur Autonomous Region of the People’s Republic of China. Like many populations of Central Eurasia, they are genetically related to both Caucasoid and East Asian populations. There are about 15 million Uyghurs in China, 80% of whom live in the Tarim Basin of Xinjiang. In fact, the Uyghurs city of Ürümqi is the largest city in western China as well as all of Central Asia, 3.5 million people.

Outside of China, according to the World Uyghur Congress, the Uyghur population is believed to number 1.0–1.6 million; which may be part of the reason that the world is ignoring the Uighars. The main diasporic community of Uyghurs are in Kazakhstan (200,000), with much, much smaller communities in Kyrgyzstan, and Uzbekistan, and in Turkey. The largest Uyghurs population in the West is believed to be in Australia and number about 10,000. Canada has about 2000 Uighars. Uyghurs are a small stateless ethnic group, with few allies on the World Stage. Uyghurs are also predominantly Muslim, eliciting little sympathy from the Western Christian world. Look at the Darfur Muslims and Rohingya Muslims. In fact, the only Muslim genocide that the West (albeit belatedly) stopped was the Bosnia Genocide, perhaps because they were European Caucasians? Apparently “Never Again” meant, never again if you’re Jewish or European?

According to a 2018 report by The Economist, Uyghurs in Xinjiang suffer under a “fully-fledged police state” with extensive controls and restrictions upon their religious, cultural and social life. Chinese officials refer to Uyghurs as terrorists, justify their repression as anti-terrorism surveillance. And, to be fair, there have been Uighar successionist movements, and acts of violence against the Chinese government apparatus in Xinjiang. Laying aside the “One man’s terrorist is another man’s freedom fighter” argument; do the actions of some members of a population justify the repression of an entire people? Are all Italians in the Mafia, all Germans are Nazis, all Irishmen are in the IRA, and -of course- all Mexicans are “drug-dealers, murderers, and rapists.” When, oh when, are we as Americans and as human beings going to break out of this tribal mentality? When are we going to protect the rights of those who don’t look like us, as much as we defend and demand rights for those who do look like us?

Because, what? The Uyghurs terrorists? Uyghurs extremism? Well, in the Xinjiang Autonomous Uyghur Province of the People’s Republic of China, “Religious extremism” is defined as owning books about Uyghurs or quitting smoking or drinking. Government cameras have been installed in the homes of private citizens. Between 120,000 and one million Uyghurs are detained in mass detention camps, termed “re-education camps,” aimed at changing the political thinking of detainees, their identities, and their religious beliefs. Some of these facilities keep prisoners detained around the clock, while others release their inmates at night to return home. The New York Times has reported inmates are required to “sing hymns praising the Chinese Communist Party and write ‘self-criticism’ essays,” and that prisoners are also subjected to physical and verbal abuse by prison guards. The families of inmates are monitored, and women have been detained due to actions by their sons or husbands…

A student of mine asked me this week, I just finished listening to your podcast about the [first] Uyghurs, but I still don’t think I know who they are… I’ll tell you, they are just like you and me. They are parents and children, they are husbands and wives, they are farmers and businessmen, they pray and they go to school.

First, the PROC came for Chang Ki-Shek and the Nationalists,
And the US did nothing because it was busy in Europe and Korea;

Then the PROC came for the Tibetans,
And the US did nothing because there are few Buddhists and fewer Tibetan-Americans;

Then the PROC came for the Uyghurs,
And the US does nothing because there are few Muslims and fewer Uyghurs-Americans;

And then the PROC may drive your company out of business through corporate technology theft, low labor costs, and currency manipulation….

And you think we should care about you and your job?

Native Americans who were here already and the descendants of enslaved West Africans know a lot about persecution. But so do those who chose to immigrate to the United States. We are a nation of castoffs, of people persecuted and looking for a better world. If we can say Never Again about the Holocaust, we can say no to Uyghur concentration camps too. If, in the face of Sovietization, our president said Eich bin ein Berliner, then today in the face of Hanification, our leaders can say “We are all Uighars too!”

Je Suis Urumqi!

Uighars and other Stateless Peoples

(Photo Credit: Public Domain file shared by QuartierLatin1968.)

A Return to Civility, Part II

In our last podcast, I spoke about the history of recent Supreme Court confirmation proceedings. But why? With so much animosity in the news, why just point out the problems in the nomination, confirmation, and SCOTUS decision-making processes?

To think, there are so many other issues facing our Federal government. Debt-ceiling gamesmanship, deficit-spending, questionable tax policy, exploding entitlement budgets, delusionally bloated Pentagon-spending, ACA, insurance premium-gouging, prescription price-gouging, questions about social media censorship and regulation, environmental regulation and climate change, election interference from overseas, immigration policy,  NAFTA, NATO, ICC, WTO, TransPacific Partnership, human rights… and on, and on…

So why obsess about the deterioration of the Supreme Court confirmation process? Well, because its symptomatic of what I see as the reductionist, myopic, and selfishness that has, while it has always been there, has now completely overtaken the American corporate and political landscape. Identity politics has replaced political debate; Political disagreement is now seen as evidence of a moral or patriotic flaw in those with which we disagree. The neo-tribalistic perceptions of political ideology have become the norm, and compromise is a now bad word. There are fewer and fewer true leaders left in elected government. Common purpose and Noblesse oblige have been subsumed by personal and partisan Machiavellianism. Relativism is now the dominant moral philosophy of Congress and the White House.

But, maybe that’s just me. It seems, to me, that the lack of political courage domestically and internationally has brought us closer to the edge – the point of no return in terms of climate change, the edge of losing the stability of international NGO regimes that were developed in the ashes of the Second World War, instead of recognizing our collective human destiny, the national and international actors seem to desire a return to the competition for international resources and hegemony that brought us colonization, jingoism, racism, two world wars, and near use of nuclear weapons during the Cold War.

To use psychological terminology, both internationally and domestically, we are regressing, not maturing. We’re playing Hungry Hungry Hippo and zero-sum games, as opposed to incorporating game theory and win-win into our mindsets and guiding principles. We need a long game, not a putting game; as the Iroquois often said in deliberations, we need to think about the Seventh Generation, not our personal checkbooks and neotribalistic aspirations.

Because, what the world needs, if American leadership. Yes, for decades, there has been a robust debate between those who support unilateral American leadership and those who believe in multilateral world leadership with a strong, active, and an engaged American presence in the world stage. What the world has now, is an international power vacuum.

Today, as we speak, there is a genocide against the Rohingya in Burma… and the Burmese say, what happened to the Native Americans, don’t you still keep them on reservations even today?

Saudi and other US allies bomb Yemenese civilians with US-made bombs, and whisper that it’s their Vietnam, their Nicaragua after all, right?

Russia commits assassinations and attempted assassinations of dissidents in the UK, and says, hey, the US did it too in 1953 Iran, 1954 Guatemala, 1963 South Vietnam, and 1973 Chile.

Russia annexes Crimea, Eastern Ukraine, and intimidates its neighbors… and sends social media bots to exacerbate divisions between Americans; all the while, the President of the United States says he respects Putin and believes the Head of State of a foreign power, over his own government’s non-partisan intelligence community.

Of course, it is not just Putin that Mr. Trump admires, he has also expressed his admiration for Duarte of the Philippines, Kim of North Korea, and Xi of China.

Yes, China, where the decades-long Hannification of Tibet is essentially complete, during which the US let China into the WTO and facilitated the transfer of technology through not just corporate espionage but nation-state espionage against US corporations… then the US became dependent on borrowing money from the very people who have stolen US technology, and even imprisoned the Panchen Lama. Would the US react so banally if the Vatican Secretary of State were kidnapped, or the heir to the Chief Rabbi of Israel?

Which brings us to this week. This week news broke that there are nearly a million Uighurs interred in concentration camps in the People’s Republic of China. Once again, the US hems and haws. Officials toss the word ‘sanctions’ out again like a panacea, whereas it is more like a placebo.

After all, China has weathered the steel sanctions well enough, while American soybean farmers suffer and Harley-Davidson has announced it is moving some production to Europe. Not overseas where its cheaper as the jingoistic narrative goes, but to the land of socialism, free university, and free healthcare… Europe.

So, how does the US tell China to stop the internment of Uighurs. The US still imprisons foreigners in GITMO without Due Process and separates asylum-seeking families at the US border. And just this week, as news of the Uigher re-education camps broke, leader of the United States has denied the death of thousands of Puerto Ricans…

And our response, as Americans and human beings, our response has been to double-down into neotribalism and identity politics. The problems facing the world are not the fault of one man, but it has been exasperated by him.

Trumpism needs to be rejected and filed away in history with fascism, Stalinism, McCarthyism, South American Caudillos, and rulers from across the globe including the Middle East and Africa who use cult-of-personality strongman tactics. I hear conservative voices cry out against the increasingly violent Left, the so-called AntiFa; but many of the same voices have been silent about the violent Right… from the the continuous presence of the KKK in America, the institutional racism of Southern law enforcement that attacked Civil Rights protesters, right up to the militia movement, the Sovereign Citizen movement, Ammon and Randy Bundy, etc.

Violent rhetoric and political violence from all sides of the political spectrum must be stopped. Instead of complaining about political violence and violence rhetoric from our ideological opposites, we all need to remove the log from our own eyes and ideologies before pointing out the splinter in others’ eyes and ideologies.

Democratic politicians who play the same games of manipulative populism and fearmongering need to be voted out; we used to talk about who we are, not who we’re not. We used to promote vision, not vitriol. Yes, its hard to be the minority party, but it doesn’t mean you have to lower your standards to the lowest forms of politics. It is also hard to be the party in power, to govern not gripe. The traditional Republicans need to regain their moral standards. Since 2010, traditional Republicans have thought they could use the Tea Party movement, only to become controlled by them… don’t believe me? Just as Speaker John Boehner. Ask Jeb Bush. The Republican leaders who have tolerated Trump in exchange for tax cuts and Supreme Court seats need to go. We need new leadership in both parties. We need national unity, not national dysfunction. The New Jerusalem is shrinking from its promise as the beacon on the hill for the world to look up to, no, America has become dystopian, not Utopian.

It’s possible. Rhode Island, long one of the most nepotistic judiciaries, implemented reforms that have ushered in candidates of qualification, not political affiliation. A return to a supermajority for Supreme Court nominations. An end to the gerrymandered districting in the House of Representatives. Bi-partisan co-sponsorship for legislation. Guaranteed up/down votes on bills offered by the minority party. Depoliticalization of the debt ceiling. Ending dark money. Rebuilding partnership with historic allies, and maybe taking a break from questionable new allies. A commitment by politicians, especially presidents, that recognizes treaties are -according to Article VI of the US Constitution- the supreme law of the land and cannot be withdrawn from, but need to be renegotiated or unratified legislatively at the 2/3 threshold in the Constitution.

We can meaningfully address the myriad of issues facing our Federal government. Debt-ceiling gamesmanship, deficit-spending, questionable tax policy, exploding entitlement budgets, delusionally bloated Pentagon-spending, ACA, insurance premium-gouging, prescription price-gouging, questions about social media censorship and regulation, environmental regulation and climate change, election interference from overseas, immigration policy,  NAFTA, NATO, ICC, WTO, TransPacific Partnership, human rights… and on, and on… We can do it if we collaborate and compromise with a win-win mentality, not the reductionist neotribal mindset that has become the norm in recent years.

It’s possible. And, even if it wasn’t, are we willing to live in the tit-for-tat Banana Republic as we’ve become, or do we want the new America to be like the old America: imperfect, but searching to be a more perfect union.

PHOTO CREDIT (Public Domain):  https://www.archives.gov/exhibit_hall/american_originals_iv/images/jfk_inaugural_address/inauguration.html
Photographer/Painter: Record Group 111, Records of the Office of the Chief Signal Officer (111-SC-578830)

A Return to Civility in SCOTUS Nominations is Long Overdue

(Photo: Public Domain, Library of Congress)

On this day, September 15, 1981, The Republican-led Senate Judiciary Committee unanimously approved Republican-nominated Sandra Day O’Connor to become the first female justice of the Supreme Court of the United States. A few days later, on September 21st, O’Connor was confirmed by the U.S. Senate with a vote of 99–0. (According to Rebecca Loew, Senator Max Baucus of Montana was absent from the vote, and sent O’Connor a copy of A River Runs Through It as an apology. O’Connor became the 102nd Associate Justice of the U.S. Supreme Court.)

Since then, eleven justices have been appointed to the U.S. Supreme Court, with a twelfth confirmation and appointment imminent: Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, RBG, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch.

103. The Republican-led Senate Judiciary Committee reported Republican-nominated Scalia unanimously out of committee. The full Senate debated Scalia’s nomination only briefly, confirming him 98–0 on September 17, 1986.

104. The Republican-led U.S. Senate confirmed Republican-nominated Kennedy on February 3, 1988, by a vote of 97 to 0. Absent from the vote were three Democrats: Paul Simon and Al Gore who were campaigning for the Democratic nomination for US President and Joe Biden who was sick.

105. In 1990, the Democrat-led Senate Judiciary Committee reported Republican-nominated Souter out the committee by a vote of 14–3, the Senate confirmed the nomination by a vote of 90–9.

106. In the 1991 Thomas’ confirmation process, the Democrat-led Judiciary Committee split 7–7 on September 27, sending the nomination to the full Senate without a recommendation. Republican-nominated Thomas was confirmed by a 52–48 vote by the Democrat-controlled US Senate on October 15, 1991, the narrowest margin for approval in more than a century. The final floor vote was: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination.

107. The Democrat-led United States Senate confirmed Democrat-nominated RBG by a 96 to 3 vote on August 3, 1993.

108. Democrat-nominated Breyer was confirmed by the Democrat-controlled US Senate on July 29, 1994, by an 87 to 9 vote.

109. On September 22, 2005, the Republican-controlled Senate Judiciary Committee approved Republican-nominated John Roberts’s nomination by a vote of 13–5, with Senators Ted Kennedy, Richard Durbin, Charles Schumer, Joe Biden and Dianne Feinstein casting the dissenting votes. Roberts was confirmed by the full Senate on September 29 by a margin of 78–22. All Republicans and the one Independent voted for Roberts; the Democrats split evenly, 22–22. Roberts was confirmed by what was, historically, a narrow margin for a Supreme Court justice. However, all subsequent confirmation votes have been even narrower.

110. In 2005, Republican-nominated Samuel Alito was reported out of the Republican-led Senate Judiciary Committee on a 10–8 party-line vote. After a failed filibuster attempt by MA Senator John Kerry, on January 31, the Senate confirmed Alito to the Supreme Court by a vote of 58–42, with four Democratic senators voting for confirmation and one Republican and an Independent voting against.

111. On July 28, 2009, the Democrat-led Senate Judiciary Committee approved Democrat-nominated Sotomayor; the 13–6 vote was almost entirely along party lines, with no Democrats opposing her and only one Republican supporting her. On August 6, 2009, Sotomayor was confirmed by the full Senate by a vote of 68–31. The vote was largely along party lines, with no Democrats opposing her and nine Republicans supporting her.

112. On July 20, 2010, the Democrat-led Senate Judiciary Committee voted 13–6 to recommend Kagan’s confirmation to the Democrat-led US Senate. On August 5th the full Senate confirmed her nomination by a vote of 63–37. The voting was largely on party lines, with five Republicans (Richard Lugar, Judd Gregg, Lindsey Graham, Susan Collins, and Olympia Snowe) supporting her and one Democrat (Ben Nelson) opposing.

113. On April 3, 2017, the Senate Judiciary Committee approved the Republican-nominated Gorsuch nomination out of committee along a party-line vote of 11–9. On April 6, 2017, Senate Democrats filibustered the confirmation vote of Gorsuch, after which the Republicans invoked the so-called “nuclear option”, allowing a filibuster of a Supreme Court nominee to be broken by a simple majority vote. On April 7, 2017, the Republican-led US Senate confirmed Gorsuch’s nomination to the Supreme Court by a 54–45 vote, with three Democrats joining all the Republicans in attendance.

It is worth noting, that only from 2009–2011 in the 111th Congress did either party have a super-majority. In most other years, the U.S. Senate was split roughly 50-50, plus or minus two to 5 seats.

What has happened? We have increasingly politicized the Court, we have nominated more and more ideological candidates to the U.S. Supreme Court instead of nominating people, we’re nominating party. A return to civility in SCOTUS nominations is long overdue.

 

Podcast: Who Cares About NYT Op-Ed?