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Thursday, June 13, 2019

Stacking the Court and term limits for Congress?



Columnist E.J. Dionne, Jr. brought forth a truly important topic recently. “Permit me a question to every truly fair-minded person in our country,” the piece began. “Imagine that one party packs the Supreme Court with ideologues and the other party does absolutely nothing in response. Isn't this abject surrender to an unscrupulous power grab?”

He’s absolutely right: how can they, and we, just sit by and watch as this terribly un-American process goes forward? How can we allow justices to take the bench and act to impose their own political will on the country?

“This inquiry can no longer be ducked. Even those in the deepest denial can no longer ignore Senate Majority Leader Mitch McConnell's nakedly political aim of cramming the Supreme Court with justices who will undo more than seven decades of precedent,” Dionne continued.

When interpretations of constitutional principles and laws become fluid, we find our national stability afloat in a sea of the unknown. What may be a popular view today may become the opposite in ten or so years. Constitutional interpretations that change with the tides of society are not a reliable foundation. The nation requires stability to endure.

And then Dionne wrote this: “They'll do the bidding of corporate interests, undercut voting rights and empower billionaires to buy elections.”

What he is suggesting is that Republicans want to pack the Court with conservative justices who will do Republicans’ bidding.

However, when applied to judicial matters and judges, the term “conservative” does not carry a political context. It refers to the inclination of judicial conservatives to interpret Constitutional and legal language as it was understood when created. On the other hand, “liberal,” when applied to Constitutional and judicial matters, means that judges’ interpretations of such issues matches the political left’s current preferences, rather than original intent.

Dionne accuses Republicans of doing what Democrats do: trying to stack the Court with ideologues. But the ideology of conservative judges is to stay true to original principles, not to interpret them colored by the changing standards of the times. Stacking the Court with people who hew to the original principles the Founders deemed critical to a successful nation is something to be supported, not criticized.

If the Constitution or laws really need to be changed, there is a process for that, and that process is not stacking the court with justices whose legal judgment will flap in the wind.

To improvement the method of selecting Supreme Court Justices, Dionne endorses the idea advanced by Democrat presidential candidate Pete Buttigieg, and supported by other Democrat candidates.

“It would involve enlarging the court to 15 members, with five justices chosen by each party and the last five picked unanimously by those 10 from the lower courts.”

So, improve a system into which politics sometimes creeps with a system that is largely based on politics that would increase the size of the Court by 67 percent?

* * *

Criticism of Congressional “lifers” is nothing new. Even though their voters select members of the Senate and House of Representatives, the Founders did not envision those positions as life-long careers. Their idea was to seek election to the House, or – before the 17th Amendment to the Constitution was approved in 1913 – be selected by a state legislature for the Senate, spend a few years there and return to your previous vocation.

From 1789 to the mid-1870s the average length of service of members of the House was 2 to 3 years, and for the Senate it was a bit more than 4 years. Then things changed.

When “careerism” peaked in 2007, House members averaged 10 years and Senate members averaged 13 years. While the average in both houses has fallen to seven and 10 years, respectively, there are still many members of Congress who have made it a career.

Data from rollcall.com for 2015 listed 79 members of Congress who had been there for at least 20 years and 16 who had been there for at least 30 years.

House Speaker Nancy Pelosi, D-Cal., has been there since 1987, while House Republican Leader Kevin McCarthy, R-Cal., has been there since 2007.

On the Senate side, Majority Leader Mitch McConnell, R-Ky. was first elected in 1984, and Minority Leader Chuck Schumer, D-N.Y., first elected to Congress in 1981.

Texas Republican Sen. Ted Cruz and Florida Republican Rep. Francis Rooney have proposed an amendment that would impose term limits on members of Congress, as reported by the Independent Journal Review.

“For too long, members of Congress have abused their power and ignored the will of the American people,” Cruz said. “Term limits on members of Congress offer a solution to the brokenness we see in Washington, D.C. It is long past time for Congress to hold itself accountable. I urge my colleagues to submit this constitutional amendment to the states for speedy ratification.”

The amendment would put a limit of two six-year terms on senators and three two-year terms on representatives. In order for the amendment to take affect it must pass both houses of Congress by a two-thirds vote, and then be ratified by 38 states.

Will our elected representatives vote to limit their terms?

Wednesday, June 05, 2019

At long last, this investigative exercise is over. Or is it?


Now that Special Counsel Robert Mueller has concluded his investigation, submitted his report to Attorney General William Barr, and has spoken publicly about the report, that more-than two-year, $35 million investigation is over and done.

Personally, upon Mueller’s appointment as Special Counsel, my reaction was decidedly negative. Not because of Mueller himself, who was widely praised, but of the position of special counsel, itself. The record of special counsels, or independent counsels, or special prosecutors, etc., is spotty, at best, and has at times been a significant blot on the concept of justice for all and the rule of law.

Someone who takes on this challenge is taking a chance, and will be judged on his or her results. They cannot afford to fail. If there aren’t ten, twenty or a hundred relevant indictments or pleas, the individual’s reputation will take a big hit. This potential result must have a significant influence on how the ensuing investigation transpires.

History has shown that special counsel investigations are often a license for misfeasance, mischief, and less-than-honorable conduct of the special counsel’s staff.

On that score, my negative response was the correct one.

A special counsel is supposed to be assigned to investigate a known crime when the independence of the people who usually investigate these crimes in the Department of Justice may be in question.

But there was no known crime for Mueller to investigate; his job was to investigate to see if he could find a crime, which was generally imagined to be collusion between Donald Trump and members of his campaign and the Russian effort to affect the outcome of the 2016 election, which Trump won in the traditional manner that American elections are decided.

There was criticism of the investigative team Mueller assembled. The UK Daily Mail reported: “The 16 lawyers known to be operating the Russia probe have previously been found to have made $62,000 in contributions to Democrats but just $2,750 to Republicans, based on Federal Election Records.” The team’s objectivity was suspect.

The special counsel investigation did result in some indictments and guilty pleas. Those indicted in the Russian affair were Russian nationals who will never be put on trial. Most other indictments and pleas were for process crimes or wrongs committed years ago that were unrelated to the campaign and the election, therefore irrelevant to the matter at hand.

Now that the search for a crime is over, Attorney General Barr stands accused of behaving like “the president’s lawyer.” Consider, however, that the attorney general heads the Department of Justice, an Administrative department. As such, the attorney general works for and reports to the President of the United States, Donald Trump.

According to the Department of Justice Website, “The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested.”

Mueller has filed his final report with Attorney General Barr, as he was supposed to do, has closed his office, and held a news conference to comment on the completion of his work.

After all the hoopla of the investigation, Trump supporters hold the same opinion of the investigation as they did at the beginning, and Trump foes hold the same opinion of the Trump as they did before it. No Trump crimes were charged and little of relevance was accomplished.

Alan Dershowitz is Professor Emeritus at the Harvard Law School, self-identifies as a Democrat who voted for Hillary Clinton, but is one of those who can step beyond political affiliation and look objectively at legal situations. 

In a May 29 op-ed for The Hill, Dershowitz cited former FBI Director James Comey’s improper comments about Hillary Clinton and her team’s mishandling of classified information.

“Mueller, however, did even more,” he wrote. “He went beyond the conclusion of his report and gave a political gift to Democrats in Congress who are seeking to institute impeachment proceedings against President Trump. By implying that President Trump might have committed obstruction of justice, Mueller effectively invited Democrats to institute impeachment proceedings. Obstruction of justice is a ‘high crime and misdemeanor’ which, under the Constitution, authorizes impeachment and removal of the president.”

Dershowitz continued: “Until today, I have defended Mueller against the accusations that he is a partisan. I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached. But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias. He also has distorted the critical role of a prosecutor in our justice system.”

Perhaps this will at last bring about the end of special counsels. Lives are ruined and crimes created in the special counsel’s efforts to avoid failure. As Dershowitz said, witnesses are bullied to “sing or compose” when under oath, creating process crimes that cost thousands to defend against, and ruin the lives of persons involved.

This lies well beneath the ideal of American justice.