RELATIVITY

 As I’ve touched on many times – I hate memes with a passion. The idea that you can capture meaningful thought through some kind of a picture with a wiseass slogan attached to it drives me crazy. That doesn’t show thought – it shows a LACK of thought trying to masquerade as insight. Consider this – in the two minutes since I started this article I’ve thought of two all purpose memes:

1. [Name of politician] (Can be Nancy Pelosi, Donald Trump, Joe Arpaio, Chuck Schumer – the identity doesn’t matter)

2. GIF of a dog chasing its tail or cat pouncing after a flashlight beam.

3. “It’s only a matter of time until I solve this”.

4. Post on Facebook and say “Like & Share”.

Here’s the other one:

1. I’m Against/For (Choose 2a or 2b) :

2a. Sliding razorblades under my fingernails and Iranians.

2b. Puppies and the American Flag.

3. Like and Share if you are too. (Usually written as “…if you are two”).

There you go. Two memes that are at least the equal of what you see on Facebook every day in less time than it takes to do a soft boiled egg. I hate those damn things (memes, soft boiled eggs are OK) and much prefer writing long, involved missives like this one that almost no one ever reads.

Well, a few people read them, and more have been recently, so I’ll keep going. With this one I’m going to go for the holy grail – I’m gonna try to piss EVERYONE off.

That’s because I’m going to talk about the third rail of current American politics – the hypocrisy involved in the process of nominating and (perhaps) confirming a Supreme Court justice. This is kind of like the M.C. Escher painting of relativity – it never ends and just confuses anyone looking at it.

Here’s why – the Republicans, during the Obama administration, loudly and effectively insisted that when a vacancy occurs in a Presidential election year, even if it is NINE MONTHS before the election, no action should be taken by the Senate until after the election has been held, since the issue might be an important consideration for voters. Democrats insisted that this was pure bullshit, that a Presidential term is 4 years and that to unilaterally halt the operation of government was an abdication of duty and a breach of the oath taken by Senators when they began their own terms of office.

Fast forward to now. Watch this:

The Democrats, during the Trump administration, loudly and (so far) ineffectively insisted that when a vacancy occurs in a Presidential election year, even if it is TWO MONTHS before the election, no action should be taken by the Senate until after the election has been held, since the issue might be an important consideration for voters. Republicans insisted that this was pure bullshit, that a Presidential term is 4 years and that to unilaterally halt the operation of government was an abdication of duty and a breach of the oath taken by Senators when they began their own terms of office.

See that. That’s magic.

No, it’s not – that’s politics. It stinks to high heaven, it makes you question your sanity, it goes against logic and good sense and it reeks of hypocrisy. Still – that’s politics. It would also go against logic to expect either party, particularly in the current atmosphere, to do anything against their own interests – even if that action were in the best interest of the country as a whole. They just don’t do that.

So, it’s left up to us to figure out what is right and wrong here. Now is when this gets fun, and now is when I start to piss everyone off.

The Constitution usually has the grain of a solution contained within it, since that is the supreme law of the land. On this point the Constitution says this:

Nothing.

The Constitution was notoriously silent on the matter of judicial appointments. The subject was dealt with in a sentence fragment contained towards the end of Article II, wedged in between Ambassadors and “inferior officers”. The President nominates, the Senate “advises and consents”. Other than providing the basis for a pretty good Otto Preminger film, there ain’t much more.

I have a number of sources I turn to when examining Constitutional questions. One of my most preferred is “The Great Rehearsal” by Carl Van Doren. It’s a really good book which relates the story of the Constitutional Convention and the machinations that went in to the making of the great document. But that’s not why it’s one of my favorites. I like it because it forms the basis for a great trivia question – “Carl and Mark Van Doren are brothers who both won Pulitzer Prizes – but their nephew/son Charles is even more famous – why?”. (Answer at the end of this article).

That’s a pretty silly way to approach Constitutional scholarship, but I can’t help it – it’s just the way my mind works.

David Goldman

,

Georgia K. Critsley

,

Kimberly Hayslett Falker

,

Chris Pelley Tosone

and anyone I went to school with will understand.

Van Doren’s book doesn’t give much insight into judicial nominations. He relates how the topic was brought up and how Benjamin Franklin suggested that the country’s lawyers should nominate the justices, because they would nominate the top people in their profession “in order to get rid of him and share his practice amongst themselves”.

That Ben Franklin – what a joker.

I’ve read through many other reviews of the Constitutional convention, works like David O. Stewart’s “The Summer of 1787”, but none shed much light on the subject. But look – this lack of detail doesn’t mean the convention didn’t do a good job. They couldn’t anticipate EVERYTHING. In fact, going back through the scholarship about the convention leads one to express inevitable awe at how good a job they did. They really only screwed up three things. One, slavery, we had to fight a civil war over. The other, the electoral college, only bites us in the ass occasionally and never more than every four years. The third, unfortunately, we have to live with every day, and it happens to be the one they tasked with the confirmation of Supreme Court justices.

That would be the Senate. The delegates to the Constitutional Convention weren’t at their best when they created the Senate. Maybe they got a bad batch of oysters the night before the debate.

Don’t get me wrong – the Senate was necessary as part of the “Great Compromise” but the disproportionate representation that was allowed (together with the length of a Senator’s term of office) created huge problems. They knew it – they knew it. James Madison tried to write a more defined set of rules breaking through the problems he saw arising in the body but was shouted down. Instead we are left with an organisation in which Montana has the same weight as California, while having FORTY times less people. We are left with a legislature where the arcane rules are designed to not just allow inaction, but to encourage it.

Yes, I know George Washington likened the Senate to a “saucer” where legislation was sent to cool. But what he meant was to allow the laws to become easier to consume – not to be discarded. Think about the legislative expressions associated with the Senate – they are almost all negative in terms of performing the actual work of the people:

Filibuster – Talking a bill to death.

Sequestration – Killing a bill in committee.

Holds – Killing a bill in secret.

Readings – Amending a bill to death.

Conference – Negotiating a bill to death.

There are other, even more hidden, ways of killing legislation or subverting the process. The Senate is not a saucer, where legislation goes to cool down. It is a garbage heap, where it goes to rot. Every so often, by sheer chance, a flower springs out of the rot, but it is an accident of the wind and not the result of cultivation.

Don’t get me wrong – I have great affection for the institution – but as it is supposed to be, not as it is. I’ve seen the Senate work close up, the way it was intended, with considered debate, some of it absurd, some of it sublime, with drama and pathos, confrontation and alliance, give and take. Ask me about it sometime. I think it might make you pine for what could be.

But the cold facts of history support only the conclusion that this is not the greatest deliberative body in the world, but an unwieldy, obstructionist, backwards institution. Those who have read even a small amount of what I have written will know the regard I hold for Robert Caro and what he has done with his massive work “The Years of Lyndon Johnson”. When Caro was writing one of the volumes of that tome he spent nearly an entire book’s worth of material not mentioning Lyndon Johnson at all, but surveying the history of the Senate that Johnson would eventually master. (Yes, the volume is called “Master of the Senate”). His book is not, by any means, full of praise for Lyndon Johnson – but here’s what he says about the Senate:

“For a century before him the Senate was the dysfunctional mess it is today. He’s Majority Leader for six years, the Senate works, it creates its own bills. He leaves, and the day he leaves it goes back to the way it was. And it’s stayed that way to this day.”

No matter what you feel about the potential of the institution – that is the simple truth. The Senate is a monument to failure and fiasco. It is peopled with examples of members reading from the phone book to prevent someone of another race from voting, Senators like Jesse Helms preventing the consideration of a needed diplomatic appointment because of a petty personal grievance, some fool named Roman Hruska who once urged a vote for a mediocre judge because “mediocre people are entitled to representation”, and countless examples of that same mediocrity. John Kennedy’s book on Senatorial courage is noteworthy because the examples of such courage are so few and far between. It is also the place where the current Majority Leader, Mitch McConnell, has foisted some of worst examples of political malfeasance upon the American people.

Yes, one of those examples would be his treatment of the nomination of Merrick Garland. McConnell did nothing to proceed with a completely valid request for Senate advice and consent. He failed to uphold his oath and do his job. He cheated the American people through a cheap political ploy. I said it was wrong then, and it remains wrong now.

And yes, it is a complete hypocrisy for McConnell to change his position now. That’s because McConnell is a hypocrite and a liar. He is the epitome of Senatorial leadership being everything but a leader, but a manipulator, wheeler-dealer, scam artist. I hope I have managed to piss off all of the Republican sheeple who follow him and his cohort Trump no matter where they go.

Now, here is where I piss off everyone else.

McConnell is a hypocritical trickster and all those things I call him above. But you don’t have to be and I refuse to be. The job of the Senate is to receive the nomination of the President, advise and debate the question of consent, then vote.

Period.

If the President makes a nomination the Senate should do its job. There should be a hearing and vote and it should be done with all deliberate speed. Note that I do not say “Approve” – just a vote, yeah or nay, on whether the nominee is worthy of a seat on the Supreme Court. A “no” vote is perfectly acceptable – but “no vote” is not. The Senate should then, in its next term, establish firm and clear rules and timetables for the consideration of Supreme Court nominees. I suggest no more than 60 days from receipt of the name from the President.

Of course, the Senate will never do this. However, the fact that the Senate will continue to be the national disgrace that it has always been does not absolve the rest of us from supporting the rare event of the institution actually doing that which it is supposed to do. That applies even when the memory of when it did not is so fresh. I hope Donald Trump nominates a wonderfully qualified, fair and representative jurist to the position on the court. Of course, he will not. I hope the Senate then votes any unqualified and unrepresentative nominee down. There is a good chance it will not. That will not make me happy – but it is the way things are SUPPOSED to be done, and in this age of increasing absurdity and disregard for accepted and acceptable norms – that is, in some ways, the greater victory. Even if it sucks.

Oh yeah – Charles Van Doren was the guy who cheated on the game show “Twenty-One”, becoming a national sensation and then disgrace and eventually the subject of a very good movie called “Quiz Show”.