A Gaffe That Will Be Hard For Schumer To Live Down

 

During his first days as the Senate Majority Leader, Senator Chuck Schumer (D-NY), preened over his newfound power to set the agenda.  But Schumer's smarmy remarks about the snap Second Impeachment of Donald Trump will be hard to live down.

 

 Smooth move Chuck. Are you vying to replace President Biden as a walking gaffe machine?

Considering the Consequence of the Snap Second Trump Impeachment

 

On January 13th, 2021, the US House of Representatives voted to impeach President Donald J. Trump for a second time in a mostly party line vote 232 to 197 (with ten Republican voting aye).  This second Snap Impeachment in H. Res. 24 (117th Congress)  was on a single charge of “Incitement of Insurrection”, predicated on remarks made at a political rally at the Ellipse on January 6th, 2021 as Congress was set to certify the Electoral College results for the Presidential Election.   

After certification of the November 3rd election results, President Trump’s term ends on January 20th, meaning that the snap Impeachment, which only acts as a judicial equivalent of an indictment, was in the last seven days of President Trump’s term of office.  The Senate was not scheduled be in session until January 19th and current Senate Majority Leader Mitch McConnell (R-KY) was unwilling to convene in emergency session, so the earliest that the Senate could take up an Article of Impeachment (presuming that House Speaker Nancy Pelosi promptly send it over this time) is 1 p.m. on January 20th, one hour after newly inaugurated President Joe Biden takes his oath of office. 

Any astute political observers understand that this Second Impeachment was not meant to evict Mr. Trump out of the Oval Office but to besmirch his place in history and seek him from exercising any political power after January 20th.  Unfortunately, this political stunt has some serious repercussions for the polity, the rule of law and even the Constitution.

Firstly, there was a rush to remove President Trump.  When the Capitol Siege occurred on January 6th, Trump was only going to be in office for less than two weeks.  When the Snap Impeachment was passed, the 45th President would leave office in seven days. But that perspective only looks towards part of the consequences and not the cause.  Facts about the violence on Capitol Hill have been fluid.  Vital questions such as who were the instigators of the insurrection and why a couple hundred agitators were allowed inside the Capitol.  Thus is seems unwise to rush to judgment, but that did not deter Nancy Pelosi’s drive to impeach Trump again.

A day before the Impeachment vote in the House, the House passed a Resolution (on a purely party line vote) which implored Vice President Pence and the Trump Cabinet to invoke the 25th Amendment, which would (temporarily) remove President Trump and make Pence Acting President pending Congressional assent.   The 25th Amendment was intended for instances when the Chief Executive was incapacitated, not for policy disagreements or “High Crimes and Misdemeanors”. 

 The proper Congressional role in the 25th Amendment is to ratify the Acting President, not to instigate his or her installation.  This Resolution abrogates the Separation of Powers, namely having part of the Legislative Branch leveraging the Vice President with a threat of an Impeachment vote unless Mr. Pence invoked the 25th Amendment.  That kind of sounds like Speaker Pelosi was drunk on power for countenancing that Constitutional breach. 

The Snap Impeachment of 2021 was done at super speed in less than seven days from the Capitol Siege to passing the Article of Impeachment.  The charge “Inciting an Insurrection” is a serious charge, verging on treason, thus one might try to justify an accelerated procedure.  But it that were the case, then why didn’t the House stay in session to actuate the Impeachment.  Instead, the House took the weekend off. The Impeachment was delayed by a voice vote on Monday January 11th rejecting the 25th Amendment Resolution and then passage of the unconstitutional 25th Amendment Resolution on January 12th before proceeding to the Snap Impeachment on January 13th.

 In 1974, the House Judiciary Committee labored seven months drafting the first Article of Impeachment against President Richard Nixon (who resigned before any final Congressional vote). The Impeachment process of President Bill Clinton lasted four months.  Even President Trump’s first Impeachment took three months.  Yet, the slim Democrat majority in the House lead by Speaker Nancy Pelosi managed to pass an Article of Impeachment with three HOURS of floor “debate” and no committee work. 

Unlike in the Impeachment of 2020 when some of President Trump’s staff were allowed to offer some positive input, there was no fact finding or committee hearings before the Impeachment Debate. So the Snap Impeachment ignored precedent.

 It can be argued that an impeachment is like an indictment. Some cynically say that a Prosecutor could indict a ham sandwich with a Grand Jury, as the defendant is not entitled to counsel in that forum.  

But at least in a Grand Jury there is fact presentation rather than ramrodding a predetermined outcome. No fact finding and just a three our debate?  So much for Due Process.

Part of the animus against President Trump is for his brusque manner which agitates people.  The Article of Impeachment which passed cited “Inciting an Insurrection” and pointed to Mr. Trump’s rhetoric as part of the charge.  With that in mind, it was curious that the rules for debate on the 25th Amendment and Impeachment resolution lifted decorum prohibitions.  This allowed members like freshman Representative Cori Bush (D-MO 1st) slanderously referred to the gathering on the Ellipse to the White Supremicist-in-chief addressing White Supremicists (sic).  Not surprisingly, this comes from the same Member who proposed expelling any Congressmen who voted against certifying electors (N.B. bill was dropped on January 5th, the day before the ruckus). With actions and language like Rep. Bush, one wonders who is inciting unrest.

One of the things that were done on the first day of the 117th Congress was rules in the House which barred Members from using gender specific language in legislative business.  Yet when Speaker Nancy Pelosi (D-CA 12th) gave a rare floor speech in favor of the snap Impeachment, she proclaimed  “I stand before you as a wife, a mother, a grandmother, a daughter, a daughter...” 

Guess that rules are only intended to be applied for peasants or the opposition, even silly ones.

Even though the Snap Impeachment was done in an expedited fashion, it was not immediately walked over to the Senate.  While Impeachment Managers were named, including Rep. Eric Swalwell (D-CA 15th) who was recently exposed as having involvement with Chinese spy Fang Fang, the Article was not conveyed to the Upper Chamber for trial. It is unclear when Speaker Pelosi will send over the Article of Impeachment.  For the 2020 Impeachment, Pelosi held the Articles of Impeachment for a month before sending them to the Senate.  So much for a supposed clear and present danger.

With these facts in mind, it is reasonable to conclude that essentially this was not a second impeachment of  impeachment of Donald Trump but more of a show trial, Soviet style which gave the illusion of some system of justice but had a predetermined outcome dictated by the ruling House legislative majority.  Aside from exercising its rightful impeachment power, there were attempts at Congressional dominance over the Executive branch and eschewed principles of due process which have influenced America’s common law heritage. 

But that is only considering the ramifications from one chamber of Congress.  The Senate is where the Impeachment Trial occurs.  This will be made complicated due to timing.  Again, it is unclear when the Article of Impeachment will be transmitted.  If the House Majority truly wanted to eject President Trump from office, it would be immediately sent. The snag with that is the Constitution requires that the Senate immediately take up the Impeachment and can conduct no other legislative business.

The Senate is not scheduled to reconvene until January 19th, and won’t be put into emergency session sooner.  Current Senate Majority Leader McConnell is circulating a draft rule which requires unanimous consent to doing business aside from Impeachment. It is improbable that in such a contentious environment that all 100 Senators grant such a deviation from customary procedure.  So when the Impeachment Article is conveyed, it will dominate Senate business. 

It is conceivable that if House Impeachment Managers present themselves with House Res. 24 to the Senate on January 19th, that McConnell could press the Senate to immediately consider a Motion to Dismiss which could pass by simple majority vote.  Looking at it politically, Democrats can crow that Trump was impeached twice and Republicans are forced to indicate if they still support a besmirched President Trump.  But it is unclear if the Republican caucus in the Senate could hold firm to dismiss. If it is a razor thin vote, it might require current Vice President Mike Pence to break the tie.  If the motion fails, then the Senate would immediately be broiled into an Impeachment trial.

When the inauguration occurs on January 20th, Senator Kamala Harris (D-CA) will become Vice President and surrender her seat in the Senate, but constitutionally she will become President of the Senate.  This role will allow her to break tie votes, which will be crucial in a 50–50 split Senate, thereby giving Democrats the majority.  This means that Senator Chuck Schumer (D-NY) becomes Senate Majority Leader and will call the tunes for the Impeachment trial, but changing the operational rules again could be a sticking point.

House Majority Whip James Clyburn (D-SC 6th) has suggested that the Impeachment trial be delayed to give President Biden his 100 day honeymoon.  That won’t be possible if the House rushes the Article of Impeachment, but that is unlikely.  Presuming the Impeachment is held until May, it will hang over the new President’s head and may well force involvement, either to allay the situation or verbally stumble into taking a stance.

There is a significant Constitutional question as to the propriety of the Impeachment of a President after he or she has left office.  Impeachment is a process in which the legislature brings charges against a civil officer of the government.  Well, after Noon on January 20th 2021, Donald Trump becomes a private citizen again.  It is moot as to whether it would be proper for the Senate to try a private citizen.  Prominent contemporary legal scholars like Cass Sunstein, Alan Dershewitz and Jonathan Turley argue against impeachment of an ex President.  But there is a little historical precedence for it. 

In 1876, there is the example of Secretary of War William Belknap who was investigated by the House for corruption.  But minutes before the Impeachment occurred, Belknap submitted his resignation to President Ulysses S. Grant.  However, the House impeached him anyways and the Senate tried him but failed to get the 2/3ds majority. This issue is not clear cut and would probably prompt judicial consideration which will likely be rejected as a political issue. Then again, it might force Chief Justice John Roberts to consider a difficult issue while proceeding over a Senate trial.

 Why would Democrats go through all of the trouble to impeach a President who was essentially a short timer anyways?  Aside from trying to blot out a Trump presidency either with black marks or essentially cancel him, it would seem that they are scared about his future viability.  Post Presidency Impeachment may not be able to remove Trump but would also barr him from ever holding federal office again.  Considering the 74 million plus supporters who seem undeterred by bad press or even a snap impeachment, Democrats do not want strong opposition in 2024 to a weak Biden Administration featuring Kamala Harris.  Some establishment Republicans would feel safer if the Populist America First movement goes away with Donald Trump. Thus they might encourage impeachment to dampen his pull on the party and they can continue unimpeded in their quintessential District of Calamity (sic) cocktail party.

There is a practical political consideration about a Senate Impeachment trial.  Namely, are there the votes?  Unlike procedural issues, the Senate is required by the Constitution to garner a 2/3rds majority to succeed.  While there may be a few Republicans who despise Trump enough to vote for Impeachment, it would be hard to win 17 GOP votes. Even if Senate Democrats abolish the filibuster and push through Puerto Rican and Douglass Commonwealth (a.k.a. DC)  statehood, they would still have to sway 15 Republicans.

Turncoat Republicans had better hope for success, because an enraged and engaged MAGA wing will primary those who vote for a snap impeachment of Donald Trump.

Then there are the procedural problems with Trump’s second impeachment.  There is only one Article, and that cites “Inciting an Insurrection”. Aside from the plain language of Trump’s Ellipse speech which never incited his audience, it can be shown that trouble was occurring 1 ½ miles away on Capitol Hill before the President finished his speech.  Furthermore, facts from the FBI and mainstream media sources reveal that some agitators who have radical BLM and Antifa connections had been planning for trouble prior to the Capitol Siege.  This information will have to be fleshed out in a fair trial.

Moreover, the Resolution’s language points to Trump’s citation of false information about winning the election. Of course, all Americans (even a President) have the Freedom of Speech, even if it is demonstrably wrong. But by citing Trump's prior speeches and claims, that opens the door for Trump’s defense team to further expose and substantiate all of the election irregularities that state courts, Article III courts and the Supreme Court declined to hear on their cases merits.   That may take a long time and could upset the apple cart about the 2020 elections, further throwing doubt into the legitimacy of Biden’s presidency.  

Then there is the matter of Big Tech.  Social Media giants like Twitter and Facebook censored President Trump when questioning the election.  To add injury to insult (sic), these Social Media Cyber Nannies banned President Trump from even making statements to tell his supporters to go home peacefully.  That may open the door to expose collusion amongst internet companies in Election 2020.  

As the Article of Impeachment proof texts Trump’s remarks to find the most inflammatory takes, context might examine social media’s role in the matter.  That avenue of defense open the door to expose collusion amongst internet companies in Election 2020. If incoming Senate Majority Leader Schumer resists allowing the Trump team a vigorous defense, it will become clear that it is a show trial worthy of a Soviet state or a banana republic (not the kind selling safari clothing).

Since the first FDR term, Presidents have been historically measured by their accomplishments during their honeymoon period (i.e. the first 100 days).  If the second Trump impeachment goes to a real Senate trial, it will overshadow everything.  Thus the Biden honeymood will be like looking at a postcard of Niagra Falls and wondering: "If only..."

However, if some wild cards come up during the trial, such as obvious election fraud or collusion, some may prefer visit Niagra Falls over a barrel, with or without Dr. Jill.

Just as the Biden campaign was not about him but all about Donald Trump, the second impeachment trial of Trump may well overshadow the early Biden presidency.  While the will to get Trump might be widely held among Democrats (and some establishment Republicans), actuating this animus may well impede the ambitions of “The Great Reset”.

Mitch McConnell on the Kavanuagh Confirmation

Devin Nunes and the Collapse of the US Senate

A nadir of the Kavanaugh Circus was some Democrat Judiciary Committee members shifting their questioning of Trump Supreme Court nominee Brett Kavanaugh from uncorroborated allegations by Christine Blasey Ford to the 1983 Georgetown Prep's Yearbook. 

Senator Sheldon Whitehouse (D-RI) obsessed about entries in Brett Kavanaugh's senior bio, including inquiries about "Renete Alumnius",  "boofing" and "the devil's triangle".

Brett Kavanaugh on the Confirmation Circus

Joe Biden on the Ginsburg Rule

Considering SCOTUS Selection Strategies

Associate Justice Anthony Kennedy's retirement at the end of the 2017/18 Supreme Court term affords President Trump another opportunity to fill a seat on the Nation's High Court.   After the Borking of President Reagan's first choice in 1987, the confirmation process is no longer a gentile process of Senate vetting whether the President's choice is qualified.  While the vacancy is still up in the air, it is a fun political junkie parlor game to consider the strategies the President Trump may employee to make the nomination. Major factors include: timing; traits; temperament

I.  Timing

Firstly, there is a question of timing.  Democrats have been braying that there should be no confirmations until after the midterm elections.  They point to how President Obama was denied an opportunity to replace the Scalia vacancy with Merritt Garland as Republicans refused to confirm just before an election.  Of course, their objections are ahistorical, as Kagan was confirmed thee months before midterm elections.  But when do fact matter to partisans who talk out of both sides of their mouths to gain advantage?  The difference in 2016 is that Republicans were in the majority and set the agenda.

Some partisans focused on the political horse race postulate that it might make sense to hold the confirmation until after the midterms to have Trump supporters Get Out The Vote (GOTV).  Such a strategy is needless and short sighted.   While our elected officials do not work in a vacuum so they need to be mindful of elections, the decision should not be primarily driven by political advantage. However, the deferral of confirmation in 2016 was a prudential decision by Senate Majority Leader Mitch McConnell (R-KY) to let voters decide. This move respected a 73 year old tradition for about Supreme Court openings in the last year of a Presidential term.

If one looks through a partisan lens, it makes little sense to stall the confirmation until after the midterms. Republicans have a majority in the Senate.  Thanks to ex Democrat Majority Leader Harry Reid (D-NV) blowing up comity in the Senate by exercising the Nuclear Option in 2013 and Democrat Majority Leader Chuck Schumer (D-NY) leading a Supreme Court confirmation filibuster in 2017, cloture votes are obviated and a only a majority vote is required.   While Senate Democrats have a hard midterm election cycle, one never knows what the future holds, so it would be better to try to get it done sooner rather than later.

Summers in the District of Calamity are often the silly season as political news is either trivial or outrageous, but typically few people pay attention as they are on vacation. Democrats are intent on fighting any Supreme Court nominee from President Trump tooth and nail, so the expected vitriol and direct action will not have as much resonance as it would be if it became a campaign issue.

If President Trump did not have a booming economy or positive news from foreign relations, it might make sense to make a SCOTUS nomination a campaign issue.  But George Barna pointed out through polling of evangelicals about the 2016 election, the two issues which that 11% segment of the population cared most about was the Supreme Court and pro-life positions.  Evangelical turned out 98% in 2016 and 96% voted for Trump, so there is little reason to gin up that base over a Supreme Court nomination.

It seems pretty clear that the nomination of Trump's second Supreme Court choice will be sooner rather than later.  During the 2016 Presidential election campaign, Mr. Trump had circulated a list of twenty five jurists who would be considered.  This list was augmented with five names after his inauguration which included now Justice Neil Gorsuch.

The White House indicated that it will announce the President's choice before he flies to Europe on July 10th. In fact, two days after Kennedy announced his retirement, President Trump announced that he had winnowed the frontrunners to five, including two women and set the selection announcement on July 9th.  So we will not play this Between the Beltways parlor game for long.

Moreover Majority Leader McConnell proclaimed that there will be a vote for confirmation by October.  This is in keeping with Senate Judiciary Chair Charles Grassley's (R-IA) timeline that from nomination to confirmation vote, the Senate could do its work in 78 days.

II. Traits

A Supreme Court nomination is one of the marquis decisions during a President's time in the Oval Office. The pick stays on the High Court long after the Chief Executive leaves the White House.  The fact that it is Justice Kennedy's replacement is even more significant.  Even though Kennedy was appointed by President Ronald Reagan in 1987, he has been a swing vote in his 31 years on the Supreme Court.  So Mr. Trump's choice will significantly impact the balance of power on the High Court.

At a campaign rally in Minnesota, President Trump mused that his choice could be on the bench for forty years.   Many of the jurists on the list are in their 40s and 50s so it seems that prospective longevity on the Supreme Court is an important attribute.

Does race or gender matter?  Perhaps.  Other Presidents have tried to make their mark by appointing "the first" identity group (e.g. Johnson with the first black of Thurgood Marshall in 1967, Reagan with the first woman Sandra Day O'Connor in 1982, Obama with the first Hispanic with Sonya Sotomayor in 2009). 

Trump is not likely to bow to political correctness or play identity politics.  Still, with 40% of Trump's short list being comprised with women, selecting a female could put vulnerable Democrats in a difficult position.  Prominent Democrats (and their media allies) have been strident in seeking to savage any pick made by President Trump.  There are already ten Senate Democrat incumbents in states where President Trump won in 2016 who have tough re-election races.  If these vulnerable Democrats are associated with an unjust evisceration of a female Supreme Court nominee, this may play very poorly for them during the midterms with key groups (suburban Moms, traditional Democrats, Independents).

Because of the timing of the selection, President Trump may want to ensure that the background vetting of a prospective nominee is speedy.  That might give an advantage to candidates who have recently been confirmed, as they have fresh FBI full field background investigations. So when speculation draws to a fevered pitch, consider who has been recently appointed to the federal bench.

III. Temperament


Despite contradictory indications during the 2016 primary campaign, President Trump has proven to be a Pro-Life President.  Yet he maintained that he will not ask about abortion when he interviews his short list.  This is hardly surprising because a good Supreme Court candidate will wisely deflect such a probing question, pointing to not answering hypothetical questions or not tipping one's hand on pending matters.  As the left has made abortion rights a keystone issue, much of the pre-nomination hysteria revolves around the potential overruling of Roe v. Wade (1973).  Any prospective candidate for the nation's High Court needs to be prepared for hard questions from the Senate Minority.

This points to a couple of qualities which Supreme Court nominees need to possess at least through confirmation.  A SCOTUS choice must be prepared.  Harriet Miers was a failed choice of President George W. Bush, in part, because she was not impressive in constitutional chit chat with Senate Majority members when making courtesy calls.

To present well in the Senate Judiciary Committee, successful candidates must master "Murder Boards",  that is the harsh mock interviews preparing for the hard questions.  Once they are on the bench, Supreme Court members deliberate in private.  But before confirmation, they must skillfully parry with hostile questions, which generally do not tip the hand of a prospective justice yet sufficiently satisfy the interlocutor. 

For a contentious candidate, mouthing the mantra "I can't comment on a prospective matter" or "Courts adjudicate real cases and I do not comment on hypotheticals" will not suffice.  As Roe v. Wade will mostly likely be touchstone for skeptical questioning, whoever is nominated must be well prepped to answer questions about "the right to privacy" and the primacy precedence (a.k.a. stare decisis).

When John Roberts went through his confirmation hearings, he did not totally deflect about questions of precedence, noting that there are some instances of bad precedence that should be upheld (like "Separate but Equal" Plessey v. Ferguson in 1896 which was overturned in 1954 by Brown v. Board of Education).

Nominees also must be mindful how simple questions can be abused by opponents to their confirmation.  When Judge Bork was asked why he looked forward to being on the High Court, and Bork answered that it would be an intellectual feast.  That answer was twisted to portray Bork as being an elite intellectual who was only in the position for himself.  Combined with vilification of Bork's record by liberal Senators, chiefly Ted Kennedy (D-MA), the nomination was defeated. 



While Supreme Court candidates should be sufficiently deferential to tough questioning, sometimes they can successfully fight back.  The left tried to "Bork" Clarence Thomas in 1991 with allegations about a subordinate employee Anita Hill.  Thomas famously refuted his treatment as a "high tech lynching of an uppity negro."  Despite that contentious quip, Thomas was narrowly confirmed.

As for judicial temperament, President Trump's list of 30 prospective selections, prima facia most would be deemed conservatives.  But their legal logic is not necessarily uniform.  Justice Thomas's jurisprudence rests on "natural law", whereas Justice Gorsuch is a textualist who looks to the letter of the law  which defers to the will of the legislature (even if they pass stupid laws).  Then there is originalism, which sees things through the prism of an understanding of the Constitution when it was originally ratified. 

A judicial trait which seems to be in favor with President Trump is the notion of judicial humility.  

Former Judge Andrew Napolitano characterizes this jurisprudence to interpret the law and apply the Constitution to the laws Congress has written. Judicial humility has not been the prevailing model of Supreme Court activism over the last sixty years, with the High Court legislating from the bench by inventing rights (e.g. "The Right to Privacy") or rewriting law to rule it constitutional (e.g. "Obamacare").

Since the Kennedy retirement has been announced, there has been rampant speculation about Mr. Trump's picks.  Even though the President has interviewed seven prospective SCOTUS picks, it has been generally considered that the list has been narrowed to four candidates.  Some even say that there are just two front runners.  Senator Orrin Hatch stirred up the rumor mill when he stated in an Op/Ed that he will fight for Mr. Trump's pick.  But some wonder if he had insider information, as Hatch's release  opined: 

"But no matter the nominee's background or credentials, progressives will do everything they can to paint her as a closet partisan, if not an outright extremist."

This could well be a MacGuffin to throw off all speculation, a ghostwriter using inclusive language or a retiring Senator tipping the hand. If Hatch was not just being deceptive or politically correct, there is only one female on the short list of choices, Judge  Amy Coney Barrett, who made headlines when Senator Diane Feinstein rebuked her by saying: "The [Catholic] dogma lives loudly within her" during her September 2017 confirmation hearings.   If President Trump is raring for a fight, picking Barrett could paint Democrats as being bigoted towards Catholics, and hint that Roe v. Wade might not stand.  But considering the vitriol which Democrats have been displaying and the importance that they place on abortion rights, this may also be a dangerous donnybrook.

One thing can be said with certainty -- the Simpsons were being satirical rather than sagacious with their rending of a Trumpian Supreme Court pick.

Ivanka will not be sporting a black robe (in public) anytime soon. 

On Applying the Nuclear Option and Comity

Article II Section 2 of the Constitution gives the United States Senate the prerogative to give "Advice and Consent" in confirming Executive Branch nominations, especially the judiciary. For most of the Republic, confirmations of Supreme Court justices were not voted on in a markedly partisan manner. 

The Senate, which liked to consider itself as the world's greatest deliberative body, usually operated in a manner which vetted high court nominees in a conscientiously deferential manner to the President.  For example, Ruth Bader Ginsburg had been chief counsel of the ACLU and a noted feminist attorney, yet she garnered a 93-3 confirmation vote in 1993. 

Admittedly, this was not always the case. President George H.W. Bush's nominee of Clarence Thomas endured a contentious confirmation hearings  in 1991 which he likened to a "high tech lynching for uppity blacks".  

And  of course the vitriolic attacks on Robert Bork, President Ronald Reagan's 1987 pick to fill a Supreme Court opening, resulted in the verb "to Bork" to be added to the Oxford English Dictionary in 2002.  But the adamant opposition from the left stemmed, however peripherally, to nitpicking "flaws" in the nominees.

Much of the comity that the Senate enjoyed was due to Cloture Rule (Senate Rule XXII) which was instituted in 1917.  In order to end debate on a filibuster, three-fifths of Senators (today 60 votes) is required.  Applying that to judicial nominees, Presidents often picked less stridently partisan or controversial candidates, as some Senate Minority votes were needed in order to advance to the confirmation vote.  

Former Democrat Senate Majority Leader Harry Reid (D-NV) found this 3/5ths Cloture requirement to be inconvenient in his effort to aid President Barack Obama in packing the judiciary (particularly changing the balance in the 4th Circuit, a.k.a. "The Rocket Docket").  Thus, in 2013 Reid exercised "The Nuclear Option" which abrogated Senate Rule XXII for judicial confirmations save Supreme Court nominees. 

 Reid was warned on the Senate floor by then Republican Senate Minority Leader Mitch McConnell (R-KY) that you will regret using the nuclear option.   In the 115th Congress, when Senate Democrats became openly obstructionistic about any nominations made by President Donald Trump, Majority Leader McConnell extended the "nuclear option" to include Supreme Court nominees, which resulted in Neil Gorsuch being confirmed by a 54-45 vote.

After Justice Anthony Kennedy's announced retirement from the Nation's High Court, Democrats have campaigned for the Senate to delay confirmation hearings for the SCOTUS opening until after the 2018 midterm elections.  Their facile rationalization is that Republicans ought to follow the same standard used to deny Merritt Garland a confirmation hearing in 2016 because it was an election year.  Of course, this partisan plea ignores that it was a Presidential election year and had over 70 years of precedent.  In addition, Democrats are not in the majority and they set the agenda. Elections do have consequences.  

So does changing and exploiting rules.  Democrats might have some gravitas to their suggestion to stall SCOTUS confirmation hearing until after the midterms if they were not already slow walking nearly all Trump confirmations.   Senate rules allow for 30 hours of debate on each nominee.  Democrats have been routinely requiring the entire 30 hours of debate, which would mean that President Trump's picks could receive senatorial "advise and consent" in nine years. So the threat that Democrats will further slow walk Senate proceedings in retaliation or to forestall a SCOTUS confirmation vote is meaningless. 

The recalcitrant response of Democrats should be a cue to Majority Leader McConnell on how to react to the diminution of comity in the Senate.  If Democrats are going to slow walk everything in retaliation or retribution for the Senate leadership for exercising their "advice and consent" on Supreme Court nominees in a timely manner, then keep them in session.  McConnell already effectively cancelled the traditional long summer recess so they can meet their budgetary duties. So they get to spend the dog days of summer on Capital Hill and enjoy the swampy weather in the District of Calamity (sic).

But the lack of comity and the need for elected officials to do their job might mean spending more time on Capitol Hill.  Since Democrats seem to relish filibusters and slowing the process down, the Majority Leader should change how filibutsters are treated.  Instead of the failure of a cloture vote resulting in the legislation (or the nomination) being pulled, let the debate continue.  If legislators want to invoke "Mr. Smith Goes to Washington" and talk until they are hoarse and drop from exhaustion, that is their prerogative.  But just as the nuclear option changed things in unexpected ways, tinkering with the filibuster might have adverse effects on Senate minority rights in the future.

Moreover, so that the Senate is not simply the place where legislation goes to and dies, remain in session through October instead of taking the election break.  From an objective standpoint, they will be doing their jobs (instead of concentrating on getting re-elected).  Politically, this hurts Senate Democrats (as they have 25 of 33 seats up, including 10 in states where Mr. Trump won).  And it might make obstructionism less appealing and allow incumbents to give comity a chance.

Ted Cruz on Social Media Censorship

Mark Zuckerberg on Hate Speech

About Senator Joe Manchin and a Victory for the Swamp

Senator Joe Manchin (D-WV) has been representing West Virginia in the Senate since the death of Senator Robert Byrd in 2010.  Manchin ran on a pledge protect Second Amendment rights as well as to to take dead aim of Barack Obama's Cap and Trade policy, which severely threatened the coal industry.  

While he may call himself a centrist or perhaps a conservative Democrat, in modern terms he ran as a Republican.  But now Mountain State voters may well wonder if Manchin was just blowing smoke around election season.

As Manchin vies for a second full term, he is considered the most vulnerable Senate incumbent for Election 20118.  Manchin's refusal to drift to the left endangers himself with the progressive drift of Democrats, yet he is chary about crossing the aisle to the Republican side.

So in a bid to save his seat, Senator Manchin took the the Senate floor to promote a pledge of bipartisan cooperation and agreement.  While that sounds noble and constructive, the reality is that Manchin was coercing his colleagues not to campaign against him or raise money against him.

 An incumbent wants to ensure that notable opposition can not criticize him on the hustings because of a supposed pledge of bipartisan cooperation.  How convenient! No wonder pundits and comedians are so critical of anything labeled bipartisan. 

Radio commentator Larry O'Connor surmises that Manchin is trying to obscure the fact that he votes with Democrat Senate Minority Leader Chuck Schumer (D-NY) regarding the tax reform. Manchin also campaigned hard for Hillary Clinton in 2016, which proved quite out of step with his West Virginia constituents.  

The Republican National Committee used Twitter to expose Senator Manchin's Janus faced campaigning, as the supposed maverick conservative Democrat posed with both Planned Parenthood as well as Pro Life activists.  

Manchin laughed off this apparent hypocrisy saying that he'd pose for pictures with anyone.  Larry O'Connor laments that this was one more victory for the swamp co-opting a maverick.  

 It may be better to think of this as  sort of a pyrrhic victory which salts the swamp and causes the District of Calamity to be drained of unviable swamp creatures and Congress critters.

H/T: Washington Times

Martha McSally on Courage

Today Rep. Martha McSally (R-AZ 2nd) announces her candidacy for the U.S. Senate to replace Senator Jeff Flake (R-AZ). 

The Republican field is already populated by Dr. Kelli Ward, a candidate endorsed by Steve Bannon, and Joe Arpaio, the 85 year old long-time ex Maricopa County sheriff renowned for his tough treatment of criminal aliens who was recently pardoned by President Trump.

[L] Dr. Kelli Ward [R] Ex Sheriff Joe Arpaio, Arizona GOP candidates for US Senate

Although Democrats need to defend 25 of 33 Senate seats in the 2018 election cycle, including in 10 states in which President Trump carried in 2016, Republicans are worried about losing their slender control of the Senate.  Senator Jeff Flake's (R-AZ) decision not to stand for re-election puts another "safe" GOP seat up for grabs.

In some respects, the GOP primary might be made up of voters with trollish Trump-eteer tendencies (infamously redubbed by Hillary Clinton as the "Basket of Deplorables") who think that strong immigration stances are the way to win via Arpaio's reputation and rhetoric.  Kelli Ward had positioned herself to be a Bannon disruptor of the GOP Establishment,  but now is backing away from "Sloppy Steve" after his fall from grace in the "Fire and Fury" fiasco.  

Establishment Republicans hoping to avoid a repeat defeat akin to the Alabama special election, seem to favor McSally to keep the seat as she has legislative experience and is not an agitating lightning rod. However, when an ex fighter pilot urged her colleagues to "grow a pair of ovaries and get the job done", such a candidate might not be exactly safe for the go along to get along in the so called Senate country club in the District of Calamity (sic).

Senator Al Franken on Allegations of Inappropriateness

The national attention was drawn to the Senate floor for remarks by Senator Al Franken (D-MN).  After the eight woman accused Franken of inappropriate sexual misconduct, with a damning photo from a 2005 USO tour, much of the Senate Democrat caucus urged him to resign. 

Al Franken on 2005 USO Tour

Yet during Franken's speech, he neither sounded contrite nor did he really resign

Franken's joke resignation was promised to be in a few weeks. Franken then proceeded to cudgel Republican President Donald Trump and Roy Moore over unproven allegations of sexual misconduct as well as as touting his progressive feminist political stances. 

Perhaps Franken's decision depends on whether Alabama Senate candidate Roy Moore (R-AL) wins the December 12th special election and is seated in the Senate.  When the heat is off, Franken may choose not to hurl himself into the fire. 

Franken's resignation was intended to give Democrats the high ground and to echo Fox News' Brit Hume: "Make Roy Moore into a Republican hood ornament".   But will offering a scrappy defense and not immediately resigning accomplish that political objective? 

Franken insisted that he would be vindicated of wrongdoing during his service in the Senate by the Senate Ethics Committee.  That is a good bet because that body never expels members. It is a place to bury allegations of wrongdoing. 

Time will tell if the delayed departure will accomplish the Democrat political objectives or it will cloud their campaigns against their electoral opponents. 

When Swamp Rats Are Dirty Rats

The revelation of sexual misconduct by Hollywood's Harvey Weinstein has transitioned to the District of Calamity.  Accusations of sexual impropriety threatens to swing two Senate seats and effect the balance of power on Capitol Hill.

Much has been made about  allegations of skivvy conduct by Republican Senate candidate Roy Moore (R-AL).  These accusations stem from conduct nearly four decades ago that were unreported to authorities, but came to light in the closing days of a special election to fill the seat vacated by now Trump Administration Attorney General Jeff Sessions.  The alluvia of allegations sound bad, but are past the statute of limitations, based she-said-he-said allegations with little to no corroborating evidence and relies upon the court of public opinion. 

From a political standpoint, Democrats are anxious to make Roy Moore a poster child for Republicans in 2018 and use the hermaneutic that Republicans condone sexual harassment as a cudgel to impeach President Donald Trump if Democrats regain the House of Representatives.  In the near term, the muck about Moore put the White House in a box.  On the other end of Pennsylvania Avenue, establishment Republicans did not like a loose cannon like Judge Moore to be in the Senate chambers, when it endangers the clubby atmosphere of the Upper Chamber and he could help shake up the leadership.  So many GOP party loyalists were quick to condemn Moore for the alleged but unproven misconduct.

There are concerns that Republicans might lose this previously considered "safe" seat, as Moore is polling with a double digit deficit after these allegations have been publicized.  Since candidate Moore refuses to step aside due to this scandal, the DC GOP suggested writing in another Republican. Apparently, this did not test well and was dropped.  After a careful reading of the Alabama state statutes, centrist Republican Hugh Hewitt claims that the problem could go away if   Senator Luke Strange (R-AL) resigned, creating a new vacancy which would cancel the shaky December 12th election, and Governor Kay Ivey (R-AL) could appoint another caretaker Senator until the next general election (in November 2018).  Considering the shaky ground Jeff Sessions is in at the Department of Justice, it is possible that Sessions be appointed back to his own seat.

[L] Senator Jeff Sessions (R-AL) attending [R] Senator Luther Strange (R-AL) swearing in

Recently, after a pleasant Sunday brunch, we chatted about the troubling news about Roy Moore. As the topic expanded to include sexual harassment by elected officials, two ardent feminists insisted that Congress needed to do something about it and make offenders on Capitol Hill as accountable as the rest of us.  I asked who were their bosses.  The obvious answer was the people.  I maintained that voters get to fire their elected officials periodically and they should decide rather than an insider committee.  That viewpoint was not well received.

Well, it seems that when Congress pushed to make the same rules apply to them as their constituents, there were a few quirks.  Regarding charges of sexual harassment with members of staffers, there is 30 day waiting period before pressing charges.  In addition, the victim making the accusation must undergo mandatory counseling.  That sounds munificent, except the counseling comes from the employer whom someone is accusing.  It would seem that it could be made clear to accusers that going public would not be in anyone's best interests.   If I recall correctly, John Batchelor's news-maker interview indicated that this system has paid out $15 million since its advent in the 105th Congress with nary a word making the press.

Congressional Sexual Misconduct payout ledger 

What took party hacks off their sexual harassment game plan was the revelation by a Los Angeles radio personality of Al Franken's inappropriate conduct during a USO mission to the Middle East in 2006, before he was elected as Senator from Minnesota.  The woman reported that she was supposed to do a skit written by Franken that involved a kiss and wanted to rehearse-- she demurred but eventually consented.  During the practice, she alleged that Franken put his tongue halfway down her throat and grabbed her head.  She immediately insisted "Don't do that again!", and she deflected his approach during the skit.

The problem with sexual conduct and Al Franken is about the contemporaneous  photographic evidence. The woman in question wanted to grab some rack time during the 36 hour military flight.  When she was asleep, Franken was seen with a coprophagic grin cupping at her breasts.  No doubt, Franken thought this was funny at the time (and probably a great way to get back at her).  Franken has been known to take outrageous photos for laughs (but the infamous Franken diaper photo was a fake).

Citizen Al Franken takes a picture with a sleeping beauty during a 2016 USO tour.

But this Al Franken moment  was captured on camera. Oops. And the accuser is Leeane Tweeden, a KABC-AM radio personality. Tweeden initially posted #MeToo, but she decided to come forth after hearing Congresswoman Speier's (D-CA 14th)  allegations that members on both side of the aisle have thrust sexual advances while in Congress.

Now this puts a kink into progressive partisans' plans. One of their prominent members stands accused. The public has been primed to always accept the word of victims.  In addition, there is photographic proof. This takes away from the rip the GOP as blanket sexual predator smear.  Rush Limbaugh points out that in this environment, Democrats will have to proverbially throw Senator Franken (D-MN) under the bus to not to seem hypocritical and prospectively use it against their ideological opponents. 

Franken publicly apologized to his victim, claiming that he thought that it was funny.  In addition, Franken submitted himself to scrutiny from his peers.  Maybe this gets it out of the headlines and it gets buried by the press.  If push comes to shove, Minnesota has a Democrat Governor Mark Dayton (D-MN), so Franken would undoubtedly be replaced by another Democrat. 

While justice is a noble pursuit, in this charged environment, the court of public opinion may well condemn non-guilty people just based on innuendo or unproven accusations which are promptly swept under the rug out of convenience.   The reform from the 105th Congress seems to allow members to slide, in a process intended to apply the peoples' law to Congress.  Although there are Ethics Committees to punish members egregious actions, I suspect that the ballot box is still the most efficacious way to punish when swamp rats act like dirty rats.