Wednesday, June 27, 2018

It's in whose court?

Harriet Miers, by Mike Keefe, October 2005.
I think Mr. P. is absolutely right on this one. There's nothing dumber or more self-defeating than "Well it was totally wrong and illegitimate when McConnell refused to allow a vote or even a hearing on Merrick Garland so now I want to do the same thing." There's nothing better, or at least nothing better available, than explaining in detail that Trump can't be trusted, and I mean seriously: I mean he will try to get a nominee who will be personally loyal to him, the way he tried to work Comey (and fired him when it didn't work out).

More "civil" presidents than Trump have done this, as Bush with his nominations of Alberto Gonzalez as attorney general and Harriet Miers to the Supreme Court—the latter failing only because it was otherwise such a pointless and terrible nomination—and Trump's made it clear that loyalty is his only criterion: Tillerson, who did all the damage to the State Department Trump asked him to do but called him a fucking moron, had to go while, Pruitt, caught out in corruption after corruption but making it clear he's the president's man, for life, gets to stay. We know how he's treated federal judges who have ruled against him in personal cases (like the fraud suits against the Trump "University" scam) and public ones (like the Muslim ban), by attacking them personally. When Neil Gorsuch indirectly suggested a mild reproach for this behavior, Trump almost withdrew his nomination to SCOTUS.

Since, unlike Bush, he's under investigation in connection with some pretty serious possible crimes, notably a case of obstruction of justice for which the public is in possession of remarkable evidence and the case of the conspiracy that he would have been trying to hide if he really is guilty of obstruction, and since the Supreme Court in our system of separation powers may have important responsibilities in deciding how to handle this unprecedented situation, it's exceptionally dangerous to put the president in the position of naming a justice at this point—it can't but be clouded by the possibility that he's trying to influence the court in his favor. He should really recuse himself from making a nomination. It's impossible to keep us from suspecting him: of inviting the nominee to one of his private suppers and asking if he's going to have his back, because that's what he does.

One hopeful thing to think about is what a pickle the Senate is in at the moment, with the amount of work it already has to do, 278 judicial nominees to vote on and a gigantic omnibus appropriations bill without which the government will shut down on September 30, and Trump terrorizing them, I mean the Republicans, with political threats. McConnell's already canceled most of the August recess to deal with the business, as CNN reports,
"It's totally out of fear of what Trump will do," said one Republican senator, speaking anonymously who warned a spat with Trump could hurt Republicans in the midterm elections.
"The only reason this is being considered, the only reason, is that leadership is fearful that Trump will blast the Senate if they're not in session and therefore hurt Republican chances," the senator said.
If he gives them a nomination sometime in July, they still won't be able to get to processing it, hearings, which Democrats will be able to slow down somewhat, focusing on these questions of how the nominee would handle suspicions of criminal behavior on the president's part, until October, and then the election will be right upon us, so I think it's possible it really won't happen until after the election, in the chaos of bad management between an incompetent president and an incompetent Majority Leader.

Chaos itself is another factor; how likely is it Trump will nominate somebody who hasn't been adequately vetted, with a nasty secret in his past, membership in an all-white golf club or a Ku Klux Klan chapter, or something more ordinary like financial misbehavior? Especially if Trump does try to choose like Lear choosing his favorite daughter, by asking the finalists to compete over how much they love him—that's a good way to settle on somebody as unsuitable as Harriet Miers.

Finally there's the Mueller noise, which may be reaching some kind of important plot point, as emptywheel is suggesting recently, and which could slow the SCOTUS nomination in its own right, making those hearings in the Senate Judiciary Committee (which is of course also running what now seems to be the most significant congressional investigation into the Trump-Russia conspiracy question (with the least slimy Republican committee chairman in charge, though that may not be saying a lot), very fraught indeed. (Because custom dictates that the investigation go relatively quiet, with no indictments, in the months immediately preceding the election, there's reason to think there will be a flurry of indictments, of Roger Stone and Michael Cohen, say, by the end of August or beginning of September, which will inevitably give us a clearer picture of what the whole case is.)

P.S. As we see from the dreadful results in the recent court decisions on Trump's Muslim ban and on Janus, according to which public employees who refuse to join the union won't have to pay it agency fees any more even as they continue to enjoy the benefits the union fought to get them, Kennedy is by now pretty much as bad as whoever is going to replace him. This swing vote hasn't really swung in what feels like a long while, and I don't think we're losing all that much.

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