Impeachment – The Political Question

March 27, 2018

Last week I commented that the issue of impeachment refocuses the flood of presidential moves. The possibility of impeaching the president raises another critical political question – would impeachment so annoy the public that Democrats would be defeated for trying to impeach Trump? Or will the focus in the impeachment process on Trump’s misbehavior leave the public sufficiently disgusted that the next election would go to his opponents? There have been attempts to remove presidents by impeachment. They resulted in two trials in the Senate and one resignation to avoid impeachment. That’s too few cases to draw firm conclusions but they deserve a look.

President Andrew Johnson was impeached by the House and tried by the Senate in a dispute over how to implement the Union victory in the Civil War and to require the South to live under rules providing for equality without regard to race. It came to a head when Johnson attempted to fire abolitionists he’d inherited from Lincoln’s cabinet. By a single vote, the U.S. Senate decided not to remove Johnson from office. But General Grant won the election that followed and reversed Johnson’s policies. The Republicans who had fought to remove Johnson from office had the next eight years under Grant to consolidate their victory in the Civil War. Eight years later, the contested election of 1876 was settled in favor of Rutherford Hayes when the Republicans agreed to withdraw federal troops from the South and end Reconstruction.

President Richard Nixon resigned in 1974 before the House of Representatives could vote to impeach him over the cover up of the Watergate burglary by people working for the Committee to Reelect the President, or CREEP. The underlying burglary threatened to distort the electoral process. The cover-up threatened to prevent prosecutors and courts from enforcing the law. When Nixon resigned, he was succeeded by Vice President Gerald Ford. Two years later, Republican Gerald Ford was defeated by Democrat Jimmy Carter.

In 1998, the House impeached Democrat Bill Clinton on charges related to sexual encounters and Clinton’s denial under oath that he had sex with a woman not his wife. This was certainly an extension of the idea of impeachable offenses to the private morality of the president rather than his discharge of public duties. But Clinton’s misbehavior has been trumped by the present president whose pornographic language, boasts, actions and affairs have gone much further than anything that Clinton was charged with.

In 1999 a Senate majority acquitted Clinton on one of the charges and the Senate split 50-50 on the other. Since the Constitution requires a two/thirds vote to convict, the result wasn’t close. In the following year, Democratic candidate Al Gore, despite trying desperately to avoid any connection to Clinton during the campaign, was defeated by Republican candidate George W. Bush for President. Gore won the popular vote but not the electoral college.

Thus, in the twentieth century, the party impeaching the challenged president won the next election – the Democrats after Nixon resigned and the Republicans after the impeachment of Clinton. In the nineteenth century, the next election went to General Grant, who was very much opposed to the behavior of the impeached president Andrew Johnson.

We have no experience with a president who lost the trial in the Senate. The risk to the president’s objectives has been from impeachment itself. The public’s reaction so far has been to condemn presidential misbehavior and change parties. That history is illustrative but certainly not conclusive of what the public would do now. On the other hand, there are so many serious issues that it’s fair to paraphrase the current president: Dirty Donald; lock him up.

— This commentary was broadcast on WAMC Northeast Report, March 27, 2018.

 

 

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What should we expect of law, judges and judicial nominees

April 8, 2017

People often ask me whether something is constitutional. I often respond by asking what they mean. Our Constitution is only as good as the people handling it. Beyond that it’s a piece of paper, that bends, folds and tears. The Founding Fathers often referred to constitutional language as parchment barriers.

All law is about prediction. What will the Court, or a judgment do and will the president or the governors enforce what they decree? The 13th, 14th and 15th Amendments became meaningless for decades after President Hayes removed the troops from the former Confederate states. Brown really meant something when Eisenhower sent the troops to Little Rock.

Sure, I think the Constitution should mean more; it should protects us. But I have only the power of argument. When I argue in the courts, I don’t just tell them what I think is right – I argue in ways I think will influence the court I am addressing. I learned that lesson years ago after writing a brief on behalf of several political scientists to explain an aspect of the 1st Amendment. We were only appearing as friends of the court, but our views carried the day on the Court of Appeals. One of the judges wrote that his reasons were well stated in our brief. Of course I thought that judge was a genius. But though we won on the Supreme Court, the grounds of victory had nothing to do with our brief. Plaintiff’s attorney crafted his argument to fit the specific concerns of the justices who would support our position. We eked out a 5-4 victory but when those justices left the Court, it was quietly overruled. It all depends.

Republicans pronounce that sympathy is no part of law, but then where is justice? They claim bound to follow only ancient dictionaries to tell us how two-century old language should be read now, assuming the ancients wouldn’t lift a finger about our problems. Or they claim to rely on precedent. But precedent isn’t self-justifying. We distinguish the authority of Brown v. Board of Education from the  horror of Dred Scott or Plessy v. Ferguson because Brown accurately stated enduring values and the others did not. That’s a judgment about decency and has nothing to do with balls and strikes. This is not a baseball game; language interpreted without decency and humanity slanders the people who wrote and adopted it. Nominees hiding behind precedent hide their heartlessness behind smokescreens and deny the obvious, that their values, or lack of them, will determine how they see and shape the law.

Gorsuch could not tell you that because his sense of good and evil are far from what most Americans would accept. So he and his supporters rely on empty jargon about precedent. But judges exercise judgment about precedent just as they do about language. That’s why we need judges with good judgment, not judges claiming to be logicians with computers who derive answers automatically, unthinkingly and without reference to consequences. That refusal to care is the bastardization of law. When Justice Blackmun protested a decision that left no one  responsible for the helplessness of a small boy, he wrote “Poor Joshua” with understated eloquence. Poor Joshua indeed. Law, like the Tin Man in the Wizard of Oz, needs a heart.

— This commentary was broadcast on WAMC Northeast Report, April 4, 2017.


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