Tag Archives: “Borked”

Secession… Again?

This decision will have far-reaching ramifications for the future of our constitutional republic. Perhaps law-abiding states should bond together and form a Union of states that will abide by the constitution. — Allen West, chair of the Texas Republican Party on the Supreme Court decision turning down the Texas lawsuit to overturn the election results in four states.

My guy Abraham Lincoln and the Union soldiers already told you no. — Representative Adam Kinzinger, Illinois Republican.

We have seen this movie before: A significant minority of Americans refusing to accept the results of an election. In 1861, it led to Fort Sumter and four years later the ruin of the Confederacy and the end of slavery. Americans for a century-and-a-half since believed the Civil War settled the question of the inviolability of the Union. As President Abraham Lincoln said in his First Inaugural Address in the midst of the secession winter: “No State upon its own mere motion can lawfully get out of the Union…. The Union is perpetual.” 

But, some Americans apparently did not stay for the end of the movie. They still do not believe in the essence of democracy, which is that losers accept the results of the election. The peripatetic Allen West — who represented Florida in Congress but now serves as chair of the Texas Republican Party — seems to be among those Americans. Count Rush Limbaugh — the radio show host and provocateur — also among them. Limbaugh said recently, “I actually think that we’re trending toward secession.”

There are at least two significant differences between the secessionists of 1861 and the nutty folks of 2020. In 1861, the South left the Union not because it did not believe Lincoln was the legitimate president of the United States, but rather because it recognized Lincoln as the legitimate president and the secessionists believed his election represented a threat to slavery. Lincoln and his fellow Republicans (this is when the Republican Party was loyal to the Union) could protest forever that all they intended was to limit slavery in the Western territories and to leave it alone in the Southern states. Southerners, however, understood that restricting slavery was the first step to its abolition, so they left the Union.

The second difference is the sectional nature of secession in 1861. One section of the United States, the South, seceded. The eleven states of the Confederacy were contiguous, and they all sought to protect a socio-economic system — slavery — at odds with the ethos of American democracy and 19th century morality. The rest of the United States believed slavery immoral, and while most Northerners did not seek the immediate abolition of slavery, most  believed the country should embark on a path leading to the eventual end of the institution.

But, look at a map of the 2020 election. While it is true that most of the blue areas are on the Atlantic and Pacific coasts and in the upper Midwest and the interior of the nation is red, there are anomalies. Georgia is surrounded by red states. Will North Carolina and South Carolina of the Trump States of America grant a right of transit from the rest of the United States of America to Georgia and vice versa? And, then there is the question of voting patterns. Even in deeply red Oklahoma, one-third of Sooners voted for Joe Biden and Kamala Harris. Same, only in reverse, in California, where a third of the voters sought to keep Trump and Pence in power. Will Republicans from the United States of America and Democrats in the Trump States of America have a population exchange reminiscent of the bloody Hindu and Muslim exchange during the birth of independent India and Pakistan?

Secession in 1861 led to internecine violence. The chance of secession in 2021 is next to zero, but the threat of violence is real. Election officials merely doing their jobs in reporting Democratic victories in swing states have been targets of right-wing threats. On Saturday, the odious Alex Jones of Infowars told pro-Trump rally goers in Washington, D.C., that President-elect Joe Biden “will be removed one way or another.” It does not take much imagination to understand what “another” means in this context.

This is scary stuff, and it is being tacitly encouraged by Republicans who supinely are following Trump in his fantasy that the election was stolen and that the “steal” can be stopped. Every Republican in Congress and every Republican state attorney general who supported Texas’ absurd law suit will be complicit if the worst occurs. Trump is irredeemable, but really, House Minority Leader Kevin McCarthy, do you believe the election was fraudulent?

The real Civil War likely will be not between Democrats and Republicans but within the Republican Party. Already, there are signs that some Christian evangelicals are rethinking their blind loyalty to the Republican Party. Beth Moore, the founder of Living Proof Ministries and a popular Southern Baptist speaker, voiced on Twitter her frustration: “I’m 63 1/2 years old & I have never seen anything in these United States of America I found more astonishingly seductive & dangerous to the saints of God than Trumpism. This Christian nationalism is not of God. Move back from it.” Another evangelical, Karen Swallow Prior, tweeted: “While I did not ever vote for Trump, I did vote for local and state @GOP candidates. (I am a lifelong conservative, after all.) I am now embarrassed and ashamed that I did so. What a bunch of money-grubbing, power-hungry, partisan cowards who care nothing about conservatism.” As conservative columnist David French notes, “The frenzy and the fury of the post-election period has laid bare the sheer idolatry and fanaticism of Christian Trumpism.” Some, proving the French’s words, are saying: Enough. 

Revulsion over Trump’s antics and Republican sycophancy has not reached significant proportions yet. But, cracks in the overwhelming support evangelicals have given Trump are appearing, and state and local Republicans have declined to do Trump’s bidding in overthrowing a legitimate election. Even some elected Republicans in Congress have shown they are willing to stand against Trump and Trumpism. 

Their courageousness may tear the Republican Party apart. That would be a shame, since the nation needs two vibrant political parties representing different points of view and serving as checks on each other. But, a civil war among Republicans is preferable to a civil war among Americans.

Posted December 15, 2020


Republican Cynicism

“For those of us who are concerned about the direction of the court and wanting at least a more centrist figure… [than] President [Hillary] Clinton might nominate, I think the choice is clear — in a lame duck,” said Senator Jeff Flake, an Arizona Republican who sits on the Judiciary Committee.

Senator Flake passes for a reasonable lawmaker among the current crop of Republican obstructionists, but his suggestion that the GOP should take up President Obama’s nomination of Merrick Garland for a seat on the Supreme Court if Hillary Clinton wins the November election is an extraordinary example of political cynicism.

It is easy to understand Flake’s logic. Judge Garland is a centrist, a non-ideological jurist pledged to rule on the basis of law and precedent. He is the type of jurist Republicans repeatedly claim they want appointed to the federal bench. Garland is also 63, so he is not likely to sit on the Supreme Court for decades. Flake knows that if Clinton is the next president, she may nominate as Antonin Scalia’s replacement a judge who is both younger and to the left of Garland.

Easy to understand, but still a cynical response. To deny Garland a hearing between now and November, as Republicans have pledged, and then to take up his nomination after the election would open the GOP to the charge of politicizing the court. More importantly, such a move would undermine the Republican argument that the next president, decided upon by the people, should nominate Scalia’s replacement. Never mind that is an erroneous argument with no basis in the Constitution. And, never mind that the people decided twice by overwhelming margins when they elected Barack Obama as president. Put simply, how can Mitch McConnell and his minions justify arguing for nearly a year that the next president should be permitted to choose the next justice and then turn around and deny President Clinton the choice? That would be a hard argument to make — even in cynical Washington and for obstructionist Republicans.

Flake’s lame (duck) suggestion — echoed by others, including the well-respected Senator Orrin Hatch of Utah — indicates the problem facing Republicans: Garland is the most moderate nominee Republicans can expect from a Democrat. Even his one drawback, his age, is a plus for Republicans since they might get to choose his replacement before too long. Flake and other Republicans know that the president has made them an offer they cannot afford to refuse, especially as the GOP contemplates an electoral rout with Donald Trump as its candidate for president.

Judge Garland’s nomination places pressure on Republican senators up for re-election, who will find it hard to explain to their constituents their refusal to meet with Garland, much less agree to give him a hearing, especially when polls show an overwhelming majority of Americans want the process to move forward. Garland is so moderate and judicious that Hatch lobbied on his behalf in 2010 for the slot that went to Elena Kagan, saying Garland would be a “consensus nominee” easily confirmed. It is hard not to conclude that Garland’s only drawback is that he was nominated by the current president.

Republicans often blame Democrats for politicizing Supreme Court nominations, citing the defeat of Robert Bork in 1987 for a seat on the court as justification for blocking any Obama appointee. “It started in 1987, when Senate Democrats launched an all-out assault against the nomination of Judge Robert Bork,” said Senator John Barrasso, a Wyoming Republican.

There is no equivalency in the defeat of Bork, President Reagan’s nominee, and GOP refusal to even consider Garland for the vacant seat on the Supreme Court. The Democratic-controlled Senate gave Bork full and fair consideration. Despite what many apparently believe today, Bork’s nomination was not filibustered. The Senate Judiciary Committee held hearings before rejecting the nomination by a nine-to-five vote. Despite the negative vote, the committee sent Bork’s name to the floor for a 58-to-42 vote against the nomination, with six Republicans voting in the majority.

Although his name has become a verb (to be “borked”), there were ample grounds to reject Bork for a seat on the nation’s highest court. Bork was not turned down because of his conservative ideology, as demonstrated by the confirmation of Antonin Scalia by the same Senate. The Senate voted against Bork because he failed to apply consistently any judicial philosophy as an appellate judge. Judge Bork ruled almost always for the government in actions brought by consumer, environmental, and civil rights groups. But in actions brought by business interests against federal agencies, he would abandon judicial restraint and invalidate government action. Senators refused to confirm Bork for the Supreme Court because the only predictor of how he would rule was who was suing whom.

Reagan named Bork to the Supreme Court only fourteen years after Bork’s role in the infamous Saturday Night Massacre. Many in the Senate remembered that Bork as the number three man in the Justice Department agreed to fire Archibald Cox as special prosecutor investigating the Nixon administration for its role in Watergate. Bork, then solicitor general, heeded Nixon’s orders after the refusal of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, both of whom resigned rather than fire Cox. To many, Bork demonstrated either overweening deference to presidential power, at best, of a willingness to obstruct justice, at worst.

In an example of senatorial precedent, the upper chamber confirmed Anthony Kennedy for the vacant seat on the Supreme Court after Bork’s failed nomination (and the withdrawal from consideration by Douglas Ginsburg, who admitted to using marijuana). The confirmation came in February 1988, during Ronald Reagan’s last year in office. Apparently, no one in the Democratic-controlled Senate argued that the voters should be heard and the next president should get to make the nomination.

Posted March 18, 2016