We’ve all heard the Aesop’s Fables of TheHare and the Tortoise, TheAnt and the Grasshopper, and TheMouse and the Lion, but have you heard of TheNurse and the Wolf (Photo Credit Milo Winter, 1919)?
“Be quiet now,” said an old Nurse to a child sitting on her lap. “If you make that noise again I will throw you to the Wolf.” Now it chanced that a Wolf was passing close under the window as this was said. So he crouched down by the side of the house and waited. “I am in good luck to-day,” thought he. “It is sure to cry soon, and a daintier morsel I haven’t had for many a long day.” So he waited, and he waited, and he waited, till at last the child began to cry, and the Wolf came forward before the window, and looked up to the Nurse, wagging his tail. But all the Nurse did was to shut down the window and call for help, and the dogs of the house came rushing out.
“Ah,” said the Wolf as he galloped away, “Enemies promises were made to be broken.”
“He [The President] shall have Power [sic], by and with the Advice and Consent of the Senate to make Treaties, provided two-thirds of the Senators present Concur.”
(U.S. Constitution, Article II, § 2, clause 2)
And what, after all, is a treaty anyway?
A trea·ty /ˈtrēdē/ is a noun, meaning a formally concluded and ratified agreement between countries. Synonyms include an agreement, settlement, pact, deal, entente, concordat, accord, protocol, convention, contract, covenant, bargain, pledge.
In Goldwater v. Carter, several Republican members of Congress challenged the constitutionality of then-president Jimmy Carter’s unilateral termination of a defense treaty. The senators were Barry Goldwater (R-AZ), Strom Thurmond (R-SC), Carl Curtis (R-NE), Jake Garn (R-UT), Orrin Hatch (R-UT), Jesse A. Helms (R-NC), Gordon Humphrey (R-NH), Representative Robert Bauman (R-MD), Representative Steve Symms (R-ID), Representative Larry McDonald (R-GA), Representative Robert Daniel Jr. (R-VA), Representative Bob Stump (R-AZ), Representative Eldon Rudd (R-AZ), Representative John Ashbrook (R-OH, and George Hansen (R-ID).
The case went before the U.S. Supreme Court and was never heard; a majority of six Justices ruled that the case should be dismissed without hearing an oral argument, holding that “The issue at hand … was essentially a political question and could not be reviewed by the court, as Congress had not issued a formal opposition.”
Justice William Brennan dissented, “The issue of decision-making authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts”.
As a result, presently, there is no official Supreme Court ruling on whether the President has the power to break a treaty without the approval of Congress.
Complicating the issue even more, in 1987, President Reagan presented to Congress a proposed nuclear cooperation “agreement” with Japan. More than one-third of the Senate voted in opposition to the pact. Nevertheless, this U.S.-Japan Pact was enforced, in violation of the Article II treaty clause which had prevailed since 1787.
The federal courts also declined to interfere when President George W. Bush unilaterally withdrew the United States from the ABM Treaty in 2002, six months after giving the required notice of intent.
George W. Bush also withdrew the United States from the UN Small Weapons Ban and the Kyoto Agreement. And, while Bill Clinton signed the Rome Statute to create the ICC, the Bush Administration withdrew from the Rome Statute as well. One of his advisors? A man named John Bolton.
And now, in the Age of Trump? Paris Accord, Iran Agreement, and this week the INF Treaty.
The Intermediate-Range Nuclear Forces Treaty (or formally Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles) is a 1987 arms control agreement between the United States and the Soviet Union (and later its successor state the Russian Federation). Signed in Washington, D.C. by President Ronald Reagan and General Secretary Mikhail Gorbachev on December 8, 1987, the treaty was ratified by the United States Senate on May 27, 1988, and came into force on 1 June 1, 1988.
The vote? 93-5 (Senators Jesse Helms of North Carolina, Gordon J. Humphrey of New Hampshire, Steve Symms of Idaho, and Malcolm Wallop of Wyoming; Senator Ernest F. Hollings of South Carolina was the lone Democrat to oppose the accord. And Orrin Hatch voted for the treaty, sued the president when Carter withdrew from the Sino-American Mutual Defense Treaty, and now sits silently as Trump withdraws from a treaty that Senator Hatch himself voted in favor of. Just as silently as Hatch sat as President Bush 43 withdrew from treaty after treaty.
Apparently, Senator Hatch only cares about Article II of the Constitution when it’s a Democratic president?
And Trump. The guy whose book is entitled the Art of the Deal seems to be better abridging deals, not making them.
Trade talks with China…
Negotiations with North Korea…
Who would want to make a deal with the current US President? Clearly, this Wolf “believes that Enemies promises,” as well as promises and treaties with friends, “were made to be broken.”
It is selective and hypocritical for so-called originalists to ignore the continued attacks on Article II, Section II of the US Constitution. If 2/3 of Senators present ratify a treaty, why is it not equally logical that 2/3’s of Senators present must withdraw the US government from an international treaty. The same section of the Constitution gives the president the authority to appoint judges to the Supreme Court; if the US President can withdraw from a ratified treaty, then would that not also infer that a US President can withdraw the appointment of a judge to the Supreme Court as well? Is that the chaos that our Founding Father’s envisioned?
Stop appeasing the arbitrary whims of Donald Trump and his National Security Advisor John Bolton, protect the Constitution, protect our treaty obligations. How can America be the shining beacon of the hill, if we have become Aesop’s Nurse, or worse, the Boy Who Cried Wolf.
In Nevada, in perhaps one of the most closely watched Senate races, Democratic Congresswoman Jacky Rosen is now leading Republican incumbent Dean Heller in the polls:
CNN* 9/25 – 9/29 693 LV 4.6 47 43 Rosen +4
Gravis 9/11 – 9/12 700 LV 3.7 47 45 Rosen +2
Suffolk* 9/5 – 9/10 500 LV 4.4 42 41 Rosen +1
[Of course, that makes me wonder why Heller wasn’t invited into the meetings with Collins, Murkowski, and Flake; or why he wasn’t more targeted by the liberal media, activists, and Senators. Heller is hardly the most conservative and ideological member of the GOP Caucus: according to Senate Report Cards, Heller is the 36th most conservative U.S. Senator out of a possible 52/53 (the ranking was conducted before Sen. McCain’s death; McCain was ranked 45th).]
To Democrats, Mitch McConnell’s insistence on a procedural vote on Friday 10/5/18 and his pre-announcement of that vote before the supplemental FBI investigation was even concluded, smacks of political disdain for the investigatory process and a rush to judgment (after all, the final vote was essentially a straight party vote).
To Republicans, Brett Kavanaugh is a victim of slander, liberal conspiracies, and collusion between the female accusers… Each incident seemingly brought to light at the last possible moment in an apparent and orchestrated attempt to slow down the process to get the final floor vote closer and closer to the November midterms. Yet, in terms of optics, the all White-Male Republican members of the U.S. Senate Judiciary Committee voted to send the nomination of a fellow White-Male to the floor for a full vote. It looks like almost everything Republican have accused Democrats of regarding race warfare and identity politics.
Optics for Democrats
The Democrats look bipolar at best:
First and foremost, the Senate Democrats lost. In particular, Diane Feinstein (CA-D) seems to have lost political points with her GOP colleagues. [And soon-to-be Governor Garvin Newsom is waiting in the wings; he needs Feinstein to hang on, just a little bit longer before he runs for her (lifetime) seat.]
I don’t remember the Senate Democrats fighting for Merrick Garland this aggressively? But, of course, most pundits thought the Hillary Clinton would become the 45th U.S. President so that the fight wasn’t necessarily worth the Senate Democrats’ political capital.
Nor do I remember the Senate Democrats attacking Neil Gorsuch this aggressively? Of course, Gorsuch’s nomination didn’t change the net math of the political alignment of the U.S. Supreme Court, and the Gorsuch nomination process occurred 15 months before Kavanaugh’s nomination process began, almost 19 months before the next election.
Which brings me to my next point: There are two ways to interpret the political theater of the past month or so, and the two lenses are not necessarily mutually exclusive.
First, there is the moral line of thinking. As mentioned in the previous commentary on the Kavanaugh nomination, three successful career-driven women accused Kavanaugh of various sexual inappropriateness, from attempted rape to sexual harassment.
Secondly, there is the political line of thinking. Democrats can be political and moral, just as easily as either party can be political and immoral.
To Democrats, this is an example of why Gorsuch was treated differently; no allegations were made against Justice Gorsuch, whereas allegations were made against Kavanaugh. “Where there’s smoke, there’s fire” argument necessitated further hearings and, at the insistence of Republican Jeff Flake of Arizona, a supplementary FBI investigation.
[To Republicans, the Kavanaugh nomination was treated differently because of the calendar. Each incident seemingly brought to light at the last possible moment in an apparent and orchestrated attempt to slow down the process to get the final floor vote closer and closer to the November midterms.]
There is a Difference between Partisanship and Political Ideology
Of course, the partisan division of the Senate is 51-47(2), so within the context of the exercised nuclear option in 2017 and party cohesion, the Democrats were always going to lose. A lot of their political strategy was based upon the new Gang of Six and the tightness of the calendar.
But disturbing to me was the rhetoric from Republican Senators and the President that identifying the allegations, calls for supplementary hearings, and supplemental investigations… Senate Republicans and the Trump Administration blamed it all on “The Democrats.” I don’t remember the same ire being directed at the Republican members of the Gang of Six?
Even more disturbing, was Justice Kavanaugh’s usage of the phrase, “The Democrats.”
As I said in earlier podcast, this nomination was always about the new (temporary) Gang of Six: Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and to a lesser extent, Joe Manchin (WV-D), Heidi Heitkamp (ND-D), Joe Donnelly (IN-D). [And, the Gang of Six, didn’t invite Donnelly or Heitkamp to that secret meeting last week, did they?] Heitkamp is likely going down in the November election, Manchin may save his seat, but leave many wondering, why he is a Democrat again? Essentially Manchin and Murkowski swapped votes; the Kavanaugh confirmation belongs to Susan Collins (ME-R).
And, again, in Nevada, in perhaps one of the most closely watched Senate races, Democratic Congresswoman Jacky Rosen is now leading Republican incumbent Dean Heller in the polls. Why was this not more of an issue in the Kavanaugh proceedings?
The Future of Brett Kavanaugh
Pyrrhic victory? For many Democrats, he is now forever tainted. He is the Clarence Thomas of the 21st century. Does he, Kavanaugh, care? Does he attempt a remake of his image? Or does Kavanaugh, as Bethany Mandel (editor of Ricochet) suggests, become more radicalized himself in terms of cases of due process and the presumption of innocence?
In my Op-Ed in the Providence Journal on 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. But that was before the sexual accusations and the apparent perjury before the U.S. Senate Judiciary Committee, as well as the woefully inappropriate display of temperament, particularly toward Amy Klobuchar (MI-D) and Sheldon Whitehouse (RI-D).
Even more disturbing than the rhetoric from President Trump and many Republican Senators who used the phrase “The Democrats” as a swear and explain-it-all for all the evils in the Universe, however, was Justice Kavanaugh’s usage of the phrase, “The Democrats.” The veil of judicial apolitical independence and nonpartisan neutrality continues to be shredded.
The Future of the US Supreme Court
Sad and partisan… Pathetic. This is the ugliness of the so-called nuclear option which both parties had been threatening for years…
Specifically, the political mess of the Kavanaugh Nomination was created on April 7, 2017, when the Republican-led U.S. Senate exercised the “nuclear option” but its roots lay in the blocking of Merrick Garland’s nomination to the Supreme Court. That’s a fact, not ideological blame. [Neither party is innocent: Majority Leader Mike Mansfield (MT-D) eliminated the ability to halt all proceedings with the introduction of the “two-track system” and, in 1975, Mansfield revised the Senate cloture rule so that three-fifths of sworn senators (60 votes out of 100) could limit debate, except for changing Senate rules which still requires a two-thirds majority of those present and voting to invoke cloture. On January 25, 2013, Harry Reid (NV-D) changed the Senate rules to prohibit a filibuster on a motion to begin consideration of a bill. No, neither party is innocent, but the GOP desperation to hold on to a 5-4 majority in terms of Merrick Garland, and the even more eager, gluttonous desire to move the court to a solid 5-4 regardless of the cost is the most acute reason that we’ve arrived at this point. In the past three decades, there have only been two nominations which were confirmed by a Senate Majority of the opposite party:
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.
Both times Democrats confirmed Republican nominees and, in the case of one of those nominations, it could have been filibustered but was not. This is what fuels Democrat ire and accusations of hypocrisy.
In my podcast on September 15, 2018, I think I made the point, though it is worth reiterating: Eleven justices have been appointed to the U.S. Supreme Court since O’Connor, 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. Confirmations used to be more unanimous with the exception of Clarance Thomas.
It is also 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.
And the 2018 Midterm Elections
Which is the excited political base(s): The party with the momentum is usually hurt the most in the impending election.
Is it the Blue Wave that cometh?
Or is the upcoming wave For the GOP? By Bryan Dean Wright | Fox News
Look at the language: the language from Trump, Kavanaugh, and McConnell was about “Democrats,” Democrats,” and “Democrats.” This was never about “The Democrats,” yet the Right has continuously framed it about the so-called “Democrats” for political expediency.
The Recap in Politics
The vote on Saturday was 50 GOP in favor (with the noted absence of proud father Steve Daines), 1 GOP against, and one Democrat in favor. Straight party blindness on both sides.
This process, ever since the announcement of Anthony Kennedy’s decision to take senior status, was always about the (temporary) new Gang of Six: Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and to a lesser extent, Joe Manchin (WV-D), Heidi Heitkamp (ND-D), Joe Donnelly (IN-D). Really it was about the Gang of Four of Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and Joe Manchin (WV-D). ANd, if you really want to tighten it further, it was always about the two pro-choice Republican women: Susan Collins (ME-R) and Lisa Murkowski (AK-R).
Negative Societal Effects (and hopefully a few positive societal effects as well)
The neotribalism of politics continues… tell me, how many Republicans do you know who believe the accusations against Brett Kavanaugh, or think his apparent perjury regarding alcohol? How many Democrats do you know who believe Brett Kavanaugh is innocent of all the allegations against him and is a victim of partisan games and revenge tactics? Exactly…
Then there is the racial or social status aspect to the debate; if students of all-male Catholic prep schools are just kids and, “boys will be boys” then why do we charge young minority children -or any children- as adults for crimes those children commit?
Then there is the gender aspect of the debate. Honestly, one of the more reassuring details (though to many it seems like a possible hypocritical detail) is that Brett Kavanaugh is the father of two young girls, Liza and Margaret Kavanaugh.
While this is unfair, I really have trouble listening to defenses of Kavanaugh by anyone who doesn’t have daughters, especially men without daughters. As my good friend Dana, oh, let’s call her DKD. DKD, a conservative woman with a daughter and a son said to me recently, “As a mother, it scares the s*** out of me that any girl can come forward and make an accusation like that that makes a boy guilty before proven innocent.”
That’s a real concern. How do we protect the women in our lives from predatory males, how do we educate our boys not be predatory males, how do we encourage women who are assaulted to speak up, while at the same time, protect males from fraudulent allegations? My greatest hope was so eloquently written and spoke by Monica Hesse of the Washington Post.
I don’t have the answer to all those questions, but those are the questions we should all be asking right now, regardless of political ideology. And those questions must be asked collectively, or the questions become a reflection of neotribalistic bias, in this case, gender bias or at least gender preference. [Off the top of my head, the only issue of similar complexity, in my opinion, is the question of male paternity rights in the face of a woman’s right to terminate a pregnancy.]
[DKD also asked rhetorically: “As an employer, do I not hire women because it may be ‘risky’ and expose the business to more liability?” But that’s another discussion for another podcast.]
What are we to believe? Who are we to believe?
We will never know the truth about the sexual allegations against Brett Kavanaugh. And it will take a career on the Supreme Court to completely understand his ideology. As I concluded in the July Op-Ed, “Who is the real Brett Kavanaugh? We’ll just have to wait until he’s been confirmed and begins his tenure. Ultimately, we won’t really know until he’s been on the court for 30 years — like his old boss, Anthony Kennedy.”
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?
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 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.
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.
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 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.
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.
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.
Who’s the anonymous Op-Ed writer? Like FBI Agent Jack Baer looking for Keyser Söze in The Usual Suspects (1995), the first question is, does the anonymous writer exist? If only President Trump had Jack Bauer to figure it all out in 24 hours, instead of Jack Baer looking in all the wrong places with all the usual suspects.
Does the Op-Ed writer exist? Yes, more than likely the writer exists. The New York Times is not going to publish a fake Opinion Editorial. But there are other possibilities as well. First, is the author a singular writer, or an amalgamation of authors? People in the Executive Branch aren’t exactly standing up next to Kirk Douglas shouting, “I am Spartacus!” “No, I am Spartacus!” (By the way, Senator Orrin Hatch’s tweet yesterday was perhaps the funniest tweet by any politician in the social media era, just sayin’.) No, instead, we’re meant to believe that there an Illuminati-like club inside the Trump Administration whose members banally walk the halls of the White House with facades of loyalty while hiding their true intentions like armies of Londoners wearing Guy Fawkes masks in V is for Vendetta (2005).
So, did one person write the Op-Ed, or was one person chosen to write for the group, or did the group of White House officials who are concerned write the Op-Ed together? After all, if there are “many of the senior officials in his [Trump’s] own administration are working diligently from within to frustrate parts of his agenda and his worst inclinations,” then my question is, do these senior officials met together? Do these senior officials coordinate with each other? Because, if there is a ‘Resistance’ in the White House working together, then why would a singular member write an Op-Ed to the New York Times?
Which brings me to the next question, why was the Op-Ed written? What was the point of the Op-Ed? It seems to me that the author could idyllically-speaking be genuinely seeking to force a conversation about the 25th Amendment. Ulteriorly-speaking, however, the author or authors may be simply trying to inoculate themselves from a future fallout. Because, the writer’s career in this Administration is over, and probably any career in public office. When the identity is ultimately revealed, the best financial hope for the writer is a book deal, compensation for TV appearances, and the long-term goal of resurrecting one’s reputation in 20 years like Watergate’s John Dean. In international relations, there is something called Rational Actor Theory, in which we assume that people make decisions rationally in their own best interests and/or the best interests of their country. Presumably, then, the author wrote the Op-Ed for a rational reason, whether we agree with the decision to write or not.
So, why now? First of all, why September 5, 2018? Is it a coincidence that the Op-Ed was published the day after parts of Bob Woodward’s new book Fear was released? The only person that I can think of who is that calculating in the release of information is Bob Mueller. And, for the record, I don’t think Mueller is the writer. I do think it’s a fascinating coincidence. Because the Woodward book was released by CNN, whereas the Op-Ed was published by the New York Times. It is also worth pointing out that, if the Times published on September 5th, the Op-Ed was written several days earlier, before the Woodward scoop by CNN.
To discuss the why now? returns us to the question of why? again as well. I’ve already discussed the personal interests of the author(s), but are their other considerations? Strategically-speaking, who benefits from the publication of the Opinion-Editorial? At face value, the biggest winners from the publication of the Op-Ed are the New York Times, as well as the partisan media from both sides of the political spectrum, Democratic candidates for Congress in 2018, and Trump himself. Yes, Trump benefits from the Op-Ed. The Op-Ed reinforces partisanship of both those who loathe, as well as those who love, President Donald J. Trump.
As far as I can tell, the losers in this situation are the White House senior officials, whether the staffers are the author of the Op-Ed or not. Because, if the author(s) are real, there must be a rational impetus to write the Op-Ed now, because it’s the “senior officials in his [Trump’s] own administration [who] are working diligently from within to frustrate parts of his agenda and his worst inclinations” who now have a harder job.
While Dick Armitage et al. may have outed Valarie Plame to deflect criticism of the Bush Administration, in this situation the covert operatives have outed himself, herself, or themselves. Because of the publication of the Op-Ed, senior officials may now be required to take polygraphs, sign affidavits, live under a cloud of suspicion, work in a more chaotic work environment, all the while helping to run the government of the United States and clandestinely “working diligently from within to frustrate parts of his [Trump’s] agenda and his worst inclinations.” Why would someone(s) risk exposure?
And, after all, what does the word senior mean anyway? There is always the possibility that the author of the Op-Ed has an overly self-indulgent sense of his/her own importance. But, if it was not a recognizable senior official, why would the New York Times not only go to lengths to hide the identity, I’m more interested in how the New York Times would even know the person in the first place? Imagine how many letters-to-the-editor and opinion editorials each and every day; How and why did this Op-Ed get noticed? Because the author is recognizable and/or a verifiably senior official. And that official’s (or officials’) own job(s) just got harder. Inevitably, the senior official(s) who wrote the supposedly anonymous Op-Ed will be identified. The senior official will be fired. Perhaps the author cares not about being fired; the writer is so angry or so concerned, that rational thought has exited the building and the senior official (Kevin Hassett or Kirstjen Nielsen) will ride into martyrdom like the Charge of the Light Brigade. But, rationally-speaking and according to Rational Actor Theory, the senior official would only take that risk if the official was already leaving (Don McGahn and Jeff Sessions), an official with enormous stature who has already retired once (Dan Coats), or one of the only two senior officials in the White House who cannot be fired: President Donald J. Trump and Vice President Michael Richard Pence.
Yes, Trump benefits from the publication of the Times’ Op-Ed, but I’m not sure Trump has the strategic calculation skills to plant an anonymous Op-Ed like a Straw Soldier (the Times certainly would not publish an anonymous Op-Ed that the editorial staff knew to be President Trump). And then there is Mike Pence, who increasingly reminds me of the fictitious Vice President Ted Matthews in the (1996) film My Fellow Americans. The only senior official in the administration who cannot be fired and who also has a penchant for using the word lodestar. Which raises the question, why would an anonymous writer use a word that could so easily be tied back to the senior official? The anonymous author is also a little too happy to use the word resistance for me to believe Sessions is the Op-Ed writer, though he certainly has become a significant roadblock to Trump’s impulsiveness.
I suspect that a lawyer who has no interest in running for political office or being in the public spotlight, who already met with Bob Mueller’s team for 30 hours, and who has already announced his departure from the White House might be well considered one of the usual suspects. After all, it is already well-known that McGahn blurred the truth to prevent Trump from firing Mueller in December 2017. But why would McGahn write an anonymous opinion editorial to the New York Times now, at this juncture in time? Quit now and write it with a byline or wait until the announced departure in December 2018 to write an opinion editorial.
I can, however, envision a scenario in which the Director of National Intelligence is cognizant enough to intentionally use lodestar as a red herring, and use the word resistance too without too much discomfort. There is little question that the former U.S. Senator, who served with John McCain, would always choose country over party and, frankly, maybe be inspired to write an anonymous Op-Ed to the New York Times as he watched two memorial services and watch non-stop praise for McCain’s patriotic independence. I suspect Dan Coats would be aware of “many of the senior officials in his [Trump’s] own administration [who] are working diligently from within to frustrate parts of his agenda and his worst inclinations” whether those officials are cooperating with each other or operating as patriotic lone wolves. Dan Coats, former Representative of IN-4 and former U.S. Senator from Indiana, also knows both Vice President Dan Quayle of Indiana and Vice President Mike Pence of Indiana quite well. He knows Mike Pence, the only senior official who cannot be fired and is the beneficiary of any impeachment proceedings or invocation of the 25th Amendment.