Sunday, February 05, 2017

Eichenwald On Why Democrats Should Block Trump Supreme Court Nominee

 Who's Kurt Eichenwald?

Eichenwald's huge book on Enron, Conspiracy of Fools, was a masterpiece of putting all the pieces of that puzzle together in a page turner of a book that became a best seller.  His book about the FBI, The Informant  was made into a movie.  Here's Wikipedia's description of his most recent book:
"In 2012 he published his fourth book, 500 Days. Also a New York Times bestseller, the book chronicled the events in governments around the world in the 500 days after the 9/11 attacks. It revealed details of the American program of NSA eavesdropping, torture policy, the American government's briefings on the coming attacks before 9/11, and the details of debates within the British government."
This guy is relentless in his investigative reporting and he's an elegant writer.  Again I use  Wikipedia to explain those skills:
"During his first months of college, Eichenwald sustained a concussion, which was soon followed by noticeable epileptic seizures. Diagnosed with epilepsy in November of his freshman year, he continued to attend school despite repeated grand mal seizures.[3]
After having two outdoor seizures on campus, he was dismissed from Swarthmore, in apparent violation of federal law.[3] He contacted the United States Department of Health and Human Services and fought his way back into school,[3][4] an experience that he has credited with giving him the willingness to take on institutions in his muckraking reporting.[citation needed] He graduated with his class in 1983, receiving a degree in political science, with distinction.[3]"

What does it mean to be hypocritical?

From the Cambridge dictionary:
"hypocritical, adjective,  It’s hypocritical for him to criticize her for doing the same things that he does."
One of the things I find most galling is the Republicans' hypocrisy for complaining that the Democrats are doing the very things they began the moment Obama become president.  It would make sense that Republicans think the Democrats are doing this for purely partisan reasons, since this appears to be the Republicans' motive. (Recall McConnell proclaiming the Republicans' top priority in 2009 was to prevent Obama's reelection.)  But they must understand that the Democrats have legitimate grave fears about the future of this nation, because a number of Republicans have already expressed such concerns.

Why Eichenwald believes Democrats must go all out to reject the Gorsuch nomination

I'm offering these excerpts from a Kurt Eichenwald article in Newsweek because he says what I'm thinking, but he does a much better job than I can at tying up all the loose ends.

It's his reasoning why the Democrats should oppose Gorsuch's nomination to the Supreme Court.  He begins that his opposition and this article violate his long held beliefs about how a democratic government should run.  He acknowledges that Gorsuch is well qualified and had he been nominated in the past, he would have supported him.

His objections come from how the Republicans have violated the process of democracy by the way they obstructed Obama's court appointments.
"Gorsuch, unfortunately, must be sacrificed on the altar of obscene partisanship erected by the Republicans in recent years. Temper tantrums designed to undermine the Constitution for naked political purposes cannot be rewarded. Our government cannot survive the short-term games-playing that has replaced fidelity to the intent of the Founding Fathers’ work in forming this once-great nation. 
This goes back to the unconscionable decision of Republicans who refused to consider any nominee put forward by President Barack Obama following the death of Associate Justice Antonin Scalia. Obama nominated Merrick Garland, another eminently qualified candidate, who served as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the nation. But in a decision that will go down as one of the greatest abuses of the Constitution in this nation’s history, the Senate’s Republican majority, under the leadership of their unprincipled majority leader, Mitch McConnell, declared they would not give Garland hearings, would not examine his qualifications and would not take a vote."

He then discusses the rule McConnell made up about not approving a Supreme Court nominee in the last year of the presidency, saying the slot should be reserved for the next president.  Eichenwald blasts this made up rule as pure partisanship and unrelated to any Senate precedents or tradition, citing 24 such last year nominations, 21 of which were approved.

Then he quotes from several letters written by different groups of legal scholars vehemently denouncing the Senate Republicans' refusal to bring Garland to a floor vote.  He shows the mendacity of the Republicans offering philosophical rules about the last year of the presidency by quoting Sen. Grassley in Obama's first term of office refusing to rule on a nominee for the DC circuit court by making up another rule about not breaking the four-four ideological balance in that court.  He proceeds:
"This might explain why Democrats now say the Supreme Court should remain divided in the same way—four justices appointed by Democratic presidents, four by Republicans—for the rest of Trump’s term. “I promise you that we will be united against any Supreme Court nominee that President Trump puts up,” said Democratic Senator Dianne Feinstein of California. 'I promise you.'”
He then cites a liberal think tank, Americans for a Progressive Judiciary, declaration that it would be perfectly honorable and constitutional for Democrats to block every single Trump court appointment. He ends his paragraph on that think tank with this quote:
 “If you truly believe that a particular nominee would wreak havoc on America, why not do everything you can to stop him?” 
I’m sure these words of principle enrage conservatives. I’m sure they believe that the Democrats' allowing the high court to continue in its current hobbled state throughout Trump’s term is un-American and destructive to our country. In fact, these statements have already been roundly condemned on Fox News, with numerous pundits ripping at the Democratic Party (or Democrat Party) for allowing its thirst for partisan advantage to blind it to our constitutional principles. And if you’re a conservative, I hope you seethe at those statements. 
Why? Because it exposes your grotesque hypocrisy. 
You see, I lied. Feinstein never said anything about the Democrats refusing to confirm any Trump nominee for the next four years—that was actually Republican Senator John McCain of Arizona, in statements he made when most of the political world believed former Secretary of State Hillary Clinton was going to be president. As for the comment from the Americans for a Progressive Judiciary? I made up the name; as far as I can tell, no such organization exists. Instead, I was quoting the conservative publication The Federalist, which, once again, was writing at a time when almost no one believed Trump would win, to justify engaging in a blanket refusal to ever confirm any Clinton nominee.
Now if you’re a conservative who was angered by those statements when you thought they came from Democrats—and now that you know they were uttered by your partisan brethren, you’re scrambling to justify them—face facts: You are lying and self-deluded."
His argument against approving Trump nominees?  The Republicans have broken all pretense of respecting the constitutional role of the US Senate to advise and consent on presidential court appointments.  Instead they have simply blocked as many as they could for pure partisan short term gain.  It's a precedent the Democrats cannot let them get away with.  He takes a swipe at Alito as
“'the worst justice in history' ©, as I’ve previously written." 
He argues that Alito's opinions are predictable and he (Eichenwald):
"enjoy[s] trying to predict what assertions of nonexistent fact he will employ in his arrogant effort to reach the outcome he desires."
But this is not a gratuitous swipe at Alito.  It's part of his argument that the Supreme Court is now a partisan body and will be as long as Alito is on it.

Eichenwald's justification for his change of heart is this:
"The Republicans cannot be allowed to reap the rewards of unprincipled obstructionism that sets a precedent that will destroy the last remnant of our country’s constitutional credibility."
He continues:
"So what should the Democrats do? Fight. Recognize the nature of the other party. There is no longer reason; there is no longer fidelity to our history or to the founders’ intents; there is no longer compromise. Republicans cannot be allowed to benefit from their efforts to undermine the intent of the framers of our Constitution. (To give you an idea of how bad this could become if Democrats don’t fight, think of this: That conservative commentator writing for The Federalist who was justifying obstructing every Clinton nominee argued that Republicans, as an option, could constitutionally just let the Supreme Court die if it could be done without paying too high a political price. There is no limit to how far the Republicans may go.)"
He then goes on to explain why, even if the Republicans vote to remove the 2/3 vote for Supreme Court approval, the Democrats should now block Gorsuch.  I'll let you see how he ends his argument over at the Newsweek site itself.  It's not a strategy I would have thought of.

But I do want to put in a plug for understanding the Prisoner's Dilemma problem and the Tit-For-Tat strategy that research suggests is the best way to combat an opponent that refuses to cooperate.  It's a critical lesson that Democrats need to understand and adapt in their strategy.

I've written about the Prisoner's Dilemma before and if you don't know it, or the Tit-for-Tat strategy, I'd strongly recommend you check out the explanations in this earlier post.  It helps explain a lot of what is going on in the world - conflicts that get resolved and those that don't.  Basically it shows that cooperation, in the long run, wins.  Unless your opponent always reneges.  In that case the opponent will always win.  Until you also copy his strategy.  If that leads to mutual cooperation, both will do better.  If both sides continue to renege then both sides go into a downward lose-lose spiral.

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