Saturday, June 30, 2018

The Booker Rule - why there must be no confirmation vote until investigations are completed

Sen . Majority Leader Mitch McConnell dodged, ducked, and weaved about the semantic landscape when faced with outrage over his promise to have a quick vote on Trump’s nominee to replace Anthony Kennedy on the Supreme Court. RealClearPolitics.com reports: McConnell: “Will Vote To Confirm Justice Kennedy’s Successor This Fall”. Watch his statement on the Senate floor in this video.

The hypocrisy inherent in McConnell’s promise is apparent to everyone other than McConnell and the rest of the Republican establishment (including Faux News). McConnell changed the rules of the Senate to deny then President Obama his pick for the Supreme Court and then rammed through the Gorsuch nomination after the election. Sen. Chuck Schumer argues that the same “rule” should apply now: Dems to McConnell: Vote on Kennedy replacement after midterms, stop the hypocrisy. Predictably, led by McConnell, the counter argument is that this is not a presidential election year and so the vote on Trump’s pick will proceed anyway.

We cannot count on Sen. Jeff Flake to save us - he already bailed on this one - and I doubt that Senators Collins and Murkowski can resist (empty) promises to preserve Roe v. Wade. So the math, even without wavering Dems, favors an early vote on Trump’s pick and quick confirmation. And that would seal the judicial fate of the nation for our lifetime.

But there is A Better Reason to Delay Kennedy’s Replacement (h/t Sherry Moreau). Paul Schiff Berman, a professor at George Washington University Law School, points to a conflict of interest. Should a sitting president under investigation for possibly criminal acts appoint the person who will sit in judgment of those acts? This is the judicial equivalent of Pandora’s Box.

… there is another reason to withhold confirmation that both Republicans and Democrats should be able to agree on: People under the cloud of investigation do not get to pick the judges who may preside over their cases. By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing.

True, that point is unlikely to stop Mr. McConnell or his colleagues. But it highlights the real risk involved in letting a deeply compromised president shape a court that may one day stand between him and impeachment.

… legal experts are already debating several knotty constitutional questions that involve the president and may one day soon have to be decided by the court. Can the president pardon himself or others specifically to extricate himself from criminal investigation? Can the president be compelled to testify before a grand jury? Can a sitting president be criminally indicted?

Did the appointment of the special counsel somehow violate the Appointments Clause of the Constitution, as some conservatives implausibly insist? Can a president ever obstruct justice? What is the proper legal remedy for Mr. Trump’s repeated violations of the Emoluments Clause? It is no exaggeration to say that never before has the selection of a Supreme Court nominee been so thoroughly compromised by the president’s profound personal interest in appointing a judge he can count on to protect him.

Mr. Trump’s possible crimes are inextricable from his desire for unilateral control of the federal government. … Add to this sweeping institutional power a president who refuses to acknowledge any checks on his power as legitimate, whether those checks come from the courts, the legislature, the media, the government bureaucracy or his political opponents. This is the perfect recipe for autocracy. In such a world, the importance of checks and balances has never been greater.

This would be dangerous regardless of Mr. Trump’s legal shortcomings. But this president has, by his own admission, already taken steps to thwart an investigation into his own potential criminality. Both Democrats and Republicans in the Senate should therefore resist calls for a quick confirmation process.

Otherwise, there will be a stain on the legitimacy of this nomination, on the performance of whomever is confirmed and, even, on the Supreme Court itself. The fact that the president has every motive to ensure that happens — to promote his political agenda and to protect him personally — makes the present moment all the more frightening.

Following this logic Sen. Cory Booker argued persuasively for No Supreme Court vote until resolution of Trump investigation. Steve Benen (MSNBC/MaddowBlog) reports.

With Donald Trump poised to replace Supreme Court Justice Anthony Kennedy, Senate Democrats have limited options. To have any chance of success, the minority party and its allies need a plan.

Calling out Republican hypocrisy has the benefit of accuracy, but its potency is limited. Senate Majority Leader Mitch McConnell (R-Ky.) couldn’t care less about appearing unprincipled; his GOP colleagues are already shrugging their shoulders; and conservative red-state Democrats, most of whom are up for re-election this year, aren’t prepared to gamble their careers on this point.

Democrats hoping to at least slow down the process until after the midterm elections will need a stronger pitch, which could credibly serve as the basis for an effective strategy.

They’ll need something like this.

Some Democratic senators and their allies are starting to make the argument that not only should there be no Supreme Court pick until after the November elections, but that there shouldn’t be one at all while the president remains under criminal investigation. […]

During a judiciary committee hearing Thursday, Sen. Cory Booker (D-N.J.) noted that a challenge to the investigation could very well end up before the Supreme Court at some point – potentially creating a conflict of interest for a president who has asked nonpartisan officials for their loyalty.

“If we’re not going to thoroughly discuss what it means to have a president with this ongoing investigation happening, who is now going to interview Supreme Court justices, and potentially continue with his tradition of doing litmus tests, loyalty tests, for that person, we could be participating in a process that could undermine that criminal investigation,” Booker said yesterday. “I do not believe [the Senate Judiciary Committee] should or can in good conscience consider a nominee put forward by this president until that investigation is concluded.”

The closer one looks at this position, the more sense it makes.

Rachel added on the show last night that as the president prepares to choose a high court nominee, the national discussion of this has not yet “caught up to the possibility that if the president himself is alleged by the special counsel’s investigation to have any significant criminal liability in this Russia scandal, that as a matter of law will almost inevitably end up as a matter before the United States Supreme Court – to which he is about to name a new member.”

There’s no shortage of relevant questions for the justices. Can a sitting president pardon himself? Can he be criminally indicted? What power does a president have to dismiss a special counsel during an investigation? These are lines of inquiry the Supreme Court may soon wrestle with.

And Donald Trump’s political life will depend on how the justices answer those questions – which very likely creates a conflict of interest for Donald Trump.

If the special counsel’s investigation ends, and the president – currently a subject of the ongoing probe – faces no allegations of wrongdoing, senators can proceed with the process of considering his Supreme Court nominee.

But in the interim, it’s difficult to defend the idea that Trump should be responsible for choosing a justice who may soon decide his legal fate. Call it the Booker Rule: presidents under criminal investigation have to wait until the matter has run its course before picking Supreme Court justices.

The HuffPost’s report suggests this argument has growing support among Senate Dems, and Harvard Law School’s Lawrence Tribe, among others, endorsed the tack yesterday.

This isn’t about hypocrisy, it’s about a conflict of interest. These are unusual circumstances – American presidents rarely face federal criminal probe – but until they’re resolved, there’s no reason to allow the subject of an investigation to choose a judge who may soon hear his case.

The problem with all of this is that Trump’s base and his allies in congress have already forgiven Trump an incredible number of lies and actions that heretofore would have triggered articles of impeachment. So why not forgive one more affront to the supposed rule of law by which we are governed? Why not forgive the ultimate act of autocracy and let Trump pick his own judge? After all, he has assured the nation that he is guilty of nothing and, by the way, he asserts that he has the power to pardon himself

Putting my pessimism aside, we need to make every attempt to stop this now. There must be no confirmation vote until investigations are completed. And there must be no Democratic Senator voting for it.

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