Tag Archives: impeachment

A Troubling Supreme Court Nomination on the Anniversary of the 14th Amendment

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Friends of Padre Steve’s World,

Today was the 150th anniversary of the adoption of the 14th Amendment, that is something to celebrate because the amendment corrected one of the most glaring omissions from the Constitution that put it at odds with the very principles of the Declaration that “all men are created equal.” The amendment struck down the Dred Scott decision which denied that Blacks could ever be citizens and had no constitutional rights. Section One of the amendment stated:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the amendment which extended the promise of the Declaration first to Blacks and that would later be the basis of subsequent amendments and court decisions which extended those rights and that promise to other racial minorities as well as women and Gays. In that sense it is the amendment helped all Americans have a constitutional basis to have a chance to realize the revolutionary idea of the Declaration that “all men are created equal…” 

Tonight President Trump nominated Federal Appeals Judge  Brett Kavanaugh to the Supreme Court vacancy left by the resignation of Justice Anthony Kennedy. Since Kavanaugh was suggested as a favorite in the President’s nomination process I have taken the time to read a number of short biographical articles from a number of sources on Kavanaugh’s life, read a number of his legal opinions, decisions and an article on the Separation of Powers and Executive powers in a 2009 Article in the Minnesota Law Review. All that being said I don’t know exactly what he would decide from the Supreme Court even though if I look at his previous opinions from the bench and the Minnesota Law Review article give me pause to be concerned both about the protections of the 14th Amendment as well as the Constitutional separation of powers. The later is especially concerning in light of his remarks in the Minnesota Law Review review article that:

“Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.” The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”

He said this despite having served on the staff of Special Prosecutor Kenneth Starr during the investigation and impeachment of President Clinton and that he noted that the same article quoted above regarding the decision of the Supreme Court in Clinton v. Jones “that presidents are not constitutionally entitled to deferral of civil suits.”

I think this is the most important issue in regard to Kavanaugh’s nomination. Yes I know the concerns many have for so many other vital issues but I think this one is the most concerning and it overshadows every other potential decision that he could be the deciding vote on, for all of those issues because this is the only one that could allow the President to establish an authoritarian regime.

It is so because that the President who nominated him is himself embroiled in multiple civil proceedings as well as potential criminal charges. The latter are dependent on what Special Prosecutor Robert Muller uncovers in his investigation of the President and his campaign’s connection to Russian agents during and after the 2016 election. However, the number of guilty please, convictions, and indictments racked up by Muller are greater in a shorter time than any other special prosecutor, and they include some of the highest ranking and closest advisors to the President during and after the campaign. If the President can circumvent that and have his actions upheld by the Court it would be the end of the Republic and the other issues no matter how important would become moot because for the duration of his term the President would be above the law and it would take a two thirds majority of the Senate to convict him of crimes in an impeachment trial. Even if the Democrats gain a majority in the House and the Senate I cannot see 15 or 16 Republican Senators to join 51 or 52 Democrats voting to impeach.

Based on Judge Kavanaugh’s writings one has to wonder what he would do if moment of national crisis coincided with a civil trial, an indictment of the President, or his impeachment. That is a real concern, especially when the President talks about removing First Amendment protects from the press and frequently refers to his political opponents enemies of the people and proclaims that he is above the law. Would not the opinion of a Supreme Court Justice who has written that the President should at enjoy temporary exemption from civil suits or criminal prosecution while he is in office not endanger the Constitution and the Separation of Powers itself. That is certainly something that the Founders never intended, nor the authors of the 14th Amendment who actually ended up impeaching President Andrew Johnson for his dismissal of Secretary of War Edwin Stanton for not disregarding the authority of Congress in the matter of Reconstruction. Johnson’s actions were designed for him to use his power as Commander in Chief to ensure that the military did not comply with the laws of Congress.

The fact that the President has nominated a man who believes that a President should be above the law during his term in office is extremely troubling. If confirmed Kavanaugh may be the man who uses his position to end the Republic as we knew it by elevating the Executive to a level never intended by the Founders by judicial fiat. Senator Edward Kennedy rightly noted:

“The Supreme Court must serve as an independent check on abuses by the executive branch and the protector of our liberties, not a cheerleader for an imperial presidency.”

I am afraid that the elevation of Judge Kavanaugh to the Supreme Court along with Neil Gorsuch, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts could well become that cheerleader for an imperial presidency that knows no restraint and disrespects justice. President Trump advocates on a daily basis for an authoritarian presidency that does not respect the law, the Constitution, or the civil rights of most Americans.

So until tomorrow,

Peace

Padre Steve+

 

 

 

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Resist the Beginning and Consider the End

 

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Friends of Padre Steve’s World,

Those who have followed my writings here know that I have been sounding the alarm about the Trump Presidency since well before he even became the GOP nominee last year. In fact on March 14th of last year I wrote of candidate Trump:

“I am afraid. Over the past few weeks violence has become commonplace at the campaign rallies of Donald Trump. In the past week a reporter from the Breitbart News service, an organization that is solidly behind Trump was assaulted by Trump’s campaign manager, and Breitbart threw her under the bus for him. Protesters have been assaulted, reporters threatened, Trump not only condones the actions, he encourages them, threatening to use the law and courts to ruin people’s lives, and offering to pay the legal bills of his supporters who have been charged with crimes. He labels any opponents as “bad people” who need to be punished. The ultimate cruelty is that though he is the one inciting the violence, he and his supporters blame that violence on the victims, be they Democrats or Republicans, protestors or media, pundits, politicians or preachers. He is creating a frenzy among his most violent supporters that demands victims to satiate their new found bloodlust…

If he succeeds in his takeover bid, it will forever change American politics, especially if he is able to ride the fear, and to the White House. I don’t think the latter will happen, but I would not exclude it from the realm of the possible…”

As President Donald Trump has not strayed a bit from the words, actions, and demeanor of candidate Trump. He still bullies and threatens his opponents and then whines about how “unfairly” he is being treated. He is following through on his promises to demolish the foundations of the American democracy even as he destroys long standing alliances and praises dictatorships just as he promised on the campaign trail.

This has surprised many people, including those who study presidential campaigns and presidencies for a living, who somehow despite his incredibly bad track record, his known propensity to lie, and his all-consuming narcissism, paranoia, and self-pity believed that he would become a different man once in office. That did not and will not happen because he has no capacity for self-reflection and suffers from an incredible absence of empathy and delusions about his greatness.

While I did not expect Trump to become President I always believed that it was possible and that if it happened it would fundamentally change the United States for the worse. Milton Mayer wrote of a German colleague during the 1950s that had lived through the Hitler years as an academic. The man tried to explain how changes were so gradual that people like him who should have known better did not take action, if they did at all until it was too late. The man asked Mayer:

“How is this to be avoided, among ordinary men, even highly educated ordinary men? Frankly, I do not know. I do not see, even now. Many, many times since it all happened I have pondered that pair of great maxims, Principiis obsta and Finem respice—‘Resist the beginnings’ and ‘Consider the end.’ But one must foresee the end in order to resist, or even see, the beginnings. One must foresee the end clearly and certainly and how is this to be done, by ordinary men or even by extraordinary men? Things might have. And everyone counts on that might.”

I have to say as I have said many times that I never wanted to be right about my intuition regarding a Trump Presidency, but with every passing day I see what I feared taking shape before my very eyes. I have tried to see though all the fog and deception and be true to the maxims that the German professor pondered as he examined his own guilt and shame for his inaction when resistance might have made a difference. “Principiis obsta and Finem respice—‘Resist the beginnings’ and ‘Consider the end.’”

In the course of this I have had to balance my learned feelings with reality and at every stage I have attempted to warn people while hoping for the best. I remember discussing the tension with a senior Navy officer who agreed with my concern that Trump is a danger and when it was appropriate for people to sound a warning; as he noted “we cannot yet see the end.”

There are many Trump opponents who are hoping that the vast amount of evidence connecting him and his closest advisers to Russia’s undermining of the 2016 elections will result in his impeachment. Others are hoping that some act of lunacy on his part will be enough to convince Vice President Pence and a majority of the cabinet to remove him from office through the process of the 25th Amendment.

However, I do not count on those happening soon enough to keep him from gaining complete control of the government using the pretext of war or terrorism to curtail civil liberties, political opposition, and Constitutional rights. Believe me I want more than anything to be wrong but I am sensing that this is where we are heading.

The President has called the Constitution “archaic” and suggested that it should be changed to grant the executive more power.  He has repeatedly acted to undermine the judiciary and turning Congress into nothing more than a compliant vassal. The structure would remain the same, but while the change would be striking most people wouldn’t notice until it was too late. Pastor Martin Niemoller wrote about this after World War Two:

First they came for the communists, and I did not speak out—because I was not a communist; Then they came for the socialists, and I did not speak out—because I was not a socialist; Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist; Then they came for the Jews, and I did not speak out—because I was not a Jew; Then they came for me—and there was no one left to speak out for me.

We are in a precarious situation and it would not take much for our nation to slide into a totalitarian dictatorship, and if the circumstance were right, if the crisis large enough, most people would probably surrender their freedom for the supposed security offered by a dictator. As Timothy Snyder wrote:

“The European history of the twentieth century shows us that societies can break, democracies can fall, ethics can collapse, and ordinary men can find themselves standing over death pits with guns in their hands. It would serve us well today to understand why.”

Until tomorrow,

Peace

Padre Steve+

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