End the Filibuster: A Letter to My Senators

 

The U.S. Senate chamber. 

I sent the following email to my two U.S. Senators today, Senator Bennet and Senator Hickenlooper: 

Dear Senator: 

There's been a good deal of commentary about the Senate’s use of the filibuster. I have followed this commentary, and I’ve attempted to consider both sides of the argument, pro and con. I have some sympathy for the argument that legislation that can garner 60 votes may in fact be “better.” But it's an argument that’s only plausible and by no means certain. And an argument is made that legislation that requires 60 votes is more likely to remain in effect even after majority control of the Senate shifts. But this argument, too, is not persuasive. Some legislation should be repealed or modified at the earliest possible date.

In fact, what seems clear to me is that in the current political climate,  the Senate will not be able to enact vital legislation in the face of the continued intransigence of the Republican Party, which has been re-made into the Trumpist party. I see no signs of moderation in the Republican Party and no indication that they could provide a  good faith bargaining counterpart. Even those considered “moderate” or “reasonable” appear to live in fear of the dominant Trumpist majority. When the current Senate could only garner 57 votes in favor of convicting the former president of his most recent offenses, we all could see the character (or lack thereof) in the current Republican Party. You cannot bargain or hope for compromise with a party (with all too few exceptions) that now seeks to fundamentally undermine the democratic process and the rule of law. 

There are too many issues that demand action: protecting voting rights, climate change, reasonable restraints on guns, immigration, and others such that we the American people afford to suffer continued congressional inaction. Therefore, I urge you to end the Senate’s use of the filibuster. This extra-constitutional procedure has led to many more abuses than gains. It also perpetuates the already gross imbalance in representation that we find in the Senate, which in effect allows itself to be ruled by senators who represent a distinct minority of voters. We can’t continue to acquiesce to this situation. Continue to work with Republicans for the common good, by all means, but don’t pretend that you can work with a party that doesn’t have the best interests of the people, the nation, and democracy at the center of its agenda. Be done with this albatross. 

Thank you for your attention to this plea. I look forward to your response. 

Sincerely yours, 

Stephen N. Greenleaf

Colorado Springs, CO

A Teachable Moment: A Lesson in Rhetoric, Proof, & Jurisprudence Arising from the Impeachment of Trump, by an Old Lawyer

The Senate trial of Donald John Trump for two articles of impeachment brought by the House of Representatives

Let's use all of the hullabaloos for a "teachable moment." I've taken a quote from a Facebook comment that relates to the current impeachment trial. Let's dissect it and see what we can learn. Here's what the person says:

"[W]ere there a truly constitutionally established impeachable offense committed by a POTUS, the timing should be immaterial. The problem here is that this impeachment is purely politically motivated and at best based on a difference of opinion or views which should be handled in the traditional manner of an election."

I believe that this paragraph is representative of what Trump supporters have been saying for some time now, although it's a bit behind the curve, as I'll discuss later below.

1. "This impeachment is purely politically motivated." First, let's take away the modifier ["purely"] and consider whether his impeachment is "politically motivated." This statement is undoubtedly true. While the law and a Constitution consist of political questions that have been answered at least for the time being and gain the force of law. The force of law means that someone who acts contrary to this decision may be subject to penalties imposed by the state through the judicial process; that is, the scope of any issue is narrowed when we make a political decision that results in a law. But the law can be changed, and if done legitimately, it's done through the political process. This applies to the Constitution as well as zoning or traffic laws. And like ordinary statutes, the Constitution has been subject to changes by courts and the legislative branch (via the amendment process) throughout its history. And how we interpret the Constitution, as we can see around us even today, remains the subject of intense political discussion. The impeachment of Donald Trump involves the power of the presidency, along with many other issues. Some of these issues must be resolved by the courts, but the legislative branch, as an equal branch of the government under the Constitution, also has the responsibility to interpret and apply the Constitution. Under the circumstances of the current impeachment, we see Democrats directing their appeals to the text of the Constitution, legislative precedents about impeachment, and the writings of the Founders--especially Madison and Hamilton--to establish their case for impeachment. Trump supporters (apparently all Republicans) have shown much less concern with precedents and legal procedures. (So much for "conservatism.")

2. Now let's put back in the "purely." To say that the House impeachment is "purely politically motivated" is intended to mean, I assume, that it's been undertaken only to gain partisan advantage in the next election. In other words, the impeachment mimics Trump's desire to coerce Ukraine to investigate the Bidens. The impeachment has no legitimate purpose other than to gain an advantage in the next election. I will stipulate for purposes of argument to the implicit assertion that all of the information gained in the impeachment may (and should) give Democrats an advantage against Trump in the next election. But to agree that impeachment will certainly give Democrats an advantage in the next election isn't (or at least wasn't) a foregone conclusion. Remember that the Republican impeachment of Bill Clinton backfired and cost them dearly in the 1998 election, and it cost Newt Gingerich his speakership. Also, John Bolton might have come forward and offered to exonerate Trump instead of confirming Trump's intention to coerce an investigation of the Bidens. And remember that the Mueller's Report that documented a prima facie (on its face) case of obstruction of justice against Trump went nowhere, contrary to the hopes of most Democrats. So if it was "purely political," it was a hell of a gamble. It could have ended up as a big-nothing sandwich, as did the Benghazi investigations of Hillary Clinton (acknowledging, as one must, that while of no substance, it helped damage her in the eyes of the general public. If evidence, truth, and justification of no consideration, anything goes.)

3. So how do we resolve the "purely?" business? I recommend the thought experiment that I posted on Facebook on 25 January. There, I suggested the following hypothetical oath to be taken (and followed) by all senators before voting on the two articles of impeachment. The text of my hypothetical oath:

"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."

This, I maintain, is the standard by which we should judge each senator's final vote. "It's the standard that I want to be applied to all presidents, Democrat, Republican, Socialist, or Libertarian" each vote is saying. And then we the voters must judge their decision with whether it comports with our understanding of the Constitution and the rule of law.

And in some way, this is what each senator is doing because the precedent set by this decision will affect future presidents and senators. If it's okay for Trump, it's okay for the next Democrat president, too. Since Trump's defense has moved from "I didn't do that" to "Anything that I do is okay, including using my power contrary to the law [he did break the law with his action, but it's not a part of the criminal code]. It's lawful if I deem my reelection to be in the national interest--which of course it is!" (An eerie echo of Nixon's claim that "if the president did it, then it's not against the law.") So, yes, even if Trump stays in office (as we knew he likely would), the repercussions of this vote will echo for years to come. In some ways, impeachment law, especially the standard of "High Crimes and misdemeanors" may be usefully compared to the common law of negligence; the definition (of "negligence" or "High Crimes and misdemeanors") is broad and decision-makers (judges, jurors, or the Senate) must apply the concept on a case-by-case basis. Therefore, a precedent flows from each decision, although it doesn't necessarily bind the next decision-making occasion.

4. The assertion that "this impeachment is purely politically motivated," is a form of the ad hominem argument. Now your rhetoric or composition teacher may have taught you that this is a logical fallacy. It is, but then logic is a formal system, not an infallible guide to discerning human behavior. The ad hominem argument seeks to avoid the facts of the case by concentrating on the teller. In the law, we routinely make ad hominem arguments by impeaching (raising doubts about) the credibility of a witness. Indeed, every plaintiff and defendant in a case is biased and at least implicitly subject to impeachment. Each party maintains that his or her position provides a true account of the facts of the case and comports with the standard of law; therefore, judgment should be rendered in the party's favor. Other witnesses, especially expert witnesses, are impeached by asking who's paying them (most experts are paid for their "time"). The expert will claim that his or her opinions are based on sound science and nothing else. The astute cross-examiner will point out the expert testifies almost exclusively for plaintiffs (or defendants). It's then left to the judge or jury to sort out who's credible. So how should the final decision-maker (the judge or jury) sort out conflicting testimony given the often inherent bias of most witnesses who testify?

Here, as an example, is what a judge in a criminal case in Iowa tells a jury about how to address these issues:

100.7 Credibility Of Witnesses.  

Decide the facts from the evidence. Consider the evidence using your observations, common sense and experience. Try to reconcile any conflicts in the evidence; but if you cannot, accept the evidence you find more believable. 

In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witness's testimony. 

Whether the State has met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented. 

There are many factors which you may consider in deciding what testimony to believe, for example: 

1. Whether the testimony is reasonable and consistent with other evidence you believe.
2. Whether a witness has made inconsistent statements.
3. The witness's appearance, conduct, age, intelligence, memory and knowledge of the facts.
4. The witness's interest in the trial, their motive, candor, bias and prejudice.

In other words, consider all of the evidence, not just the background of the witnesses. Foolproof? Hardly, we're dealing with humans here, but this typical instruction provides a standard that you and I can use to judge the case of the impeachment of Donald John Trump (for we will ultimately judge this president and these senators when we enter the voting booth).

5. Conclusion

So to say that "this impeachment is purely politically motivated" provides us with no meaningful information and stands naked as an argument against impeachment. This simple assertion has no facts to clothe it. This failure to mount an argument upon facts and the constitutional text and precedents comports with the tactics of the Republicans in Congress, who, as we near the end of the impeachment, have left not even a fig leaf to cover Trump's shame. The defense, in the hands of the famous criminal defense lawyer, Alan Dershowitz, has disposed of any need for a fig leaf of facts that would cover-up Trump's abuse of power. According to Dershowitz, if the president wants to be re-elected, he can deem that purpose as in the national interest and thereby manipulate public funds and seek foreign involvement in our elections as he desires. Well, if standing against this conclusion and the facts (no longer seriously in dispute) that support a finding for removal is "purely political," then sign me on.

sng
31 Jan. 2020

Open Letter to Sen. Grassley re Supreme Court Vacancy

3 February 2017

Senator Charles E. Grassley

U.S. Senate
Washington, DC 20510-1501

Dear Senator Grassley,

We must now return to the vacancy on the Supreme Court that you and your Republican colleagues decided to leave vacant last year. President Trump has nominated a man with impressive qualifications, and yet the Democrats should move to block the nomination by a filibuster. The problem is that you have to defend the legitimacy of Judge Gorsuch’s nomination, not his qualifications. This is a problem for you and your Republican colleagues, but I have a way out I will suggest in this letter. But first, we have to examine how you arrived at this juncture where the Democrats would threaten the use of the anti-democratic device of the filibuster. They aren't usually inclined to play so roughly. They even suffered its use (and abuse) by Republicans when you were in the minority. What’s the problem?

The problem arises from the decision of you, Senator McConnell, and your Republican colleagues to refuse hold hearings on the nomination of Judge Garland (as you have said of him, an extremely well-qualified jurist). You attempted to justify this dereliction of your constitutionally-mandated duty by arguing that the matter should be left until after the election. Senator McConnell argued that the American people should “have a voice” in the selection of the next justice, and Senator Kelly Ayotte said “Americans deserve an opportunity to weigh in” on the matter.” Of course, all of this runs contrary to the original intent of the Constitution, a sad commentary on the value of originalism and an ironic approach to filling the seat of originalism’s great proponent, Justice Scalia.

The people “spoke” (by their ballots), and most of them didn’t speak in favor of Mr. Trump. In fact, only 46% voted for Mr. Trump, and he finished second in the balloting, losing by almost 3 million votes. The legitimacy of his election was further undermined by our knowledge that foreign agents (Russian) stole emails and arranged their release to aid his election. (When I was a Republican, Republican candidates didn’t have the support of Russian leaders. My, how times have changed!) And, of course, the unprecedented entry of the FBI into the election also undermines President Trump’s legitimacy. (It’s a good thing folks on the left aren’t as given to conspiracy theories as those on the right, isn’t it?) So, the American people—and most voters—despite these foreign and unprecedented influences, did not vote for Trump. Therefore, according to the logic of your party, we should wait until after the next election to fill this vacancy. Then, we hope, you’ll have a legitimate mandate from “the people.” You had an unquestionably legitimate and popular (and popularly-elected) president to fill the post, and now you have this mess. Mind you, I think that all of this is nuts, contrary to the intention of the Constitution—which worked to isolate judges from the political process—but I’m trying to think within the framework your party established.

You can argue (although it didn’t bother you before) that the Supreme Court needs the full nine members. But as your colleague Senator Cruz noted, “There is certainly long historical precedent for a Supreme Court with fewer justices,” as he expressed his willingness to leave Justice Scalia’s seat vacant, presumably indefinitely if Ms. Clinton had been elected. Senator McCain stated this fall “I would much rather have eight Supreme Court justices than a justice who is liberal,” so he, too, expressed his willingness to live with eight. And Sen. Richard Burr (R-N.C.) went further: “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” Thus, since the referendum-like idea didn’t work out, the Senate could just leave the seat empty. “So, sue me!”, you can respond, and with all of the court vacancies that you left vacant from the Obama years, the backlog of cases will probably prevent the matter from reaching the eight-person court for years. Perhaps not such a bad strategy for you.

But you and Senator McConnell—perhaps intuiting that Mr. Trump would garner just enough votes to carry the Electoral College—can argue that you just wanted to wait for the next president to make the appointment, and we have new, lawful president, albeit one of doubtful legitimacy. And he’s made perhaps his most competent nomination yet to a high post. But the Democrats don’t like this nomination. Some of them won’t vote for Judge Gorsuch because they fear that he’ll add just another pro-big business, anti-government, and anti-choice voice on the court. They are a minority. But more importantly, others recognize that your dereliction of duty in ignoring Judge Garland’s nomination was changing the game in a naked grab for power and that, this requires retaliation. Allowing cheaters to escape unpunished sets dangerous precedents. The Democrats think that changing the rules of the game during the game is dirty pool; in a word, cheating. I agree; in fact, I believe that it’s downright un-American. (Aren’t you glad now that the House did away with that committee?)

So, if—as they should—the Democrats filibuster the nomination of Judge Gorsuch, what should you do? “End the filibuster!” I imagine you’ll say (less unnerving the President Trump’s “use the nuclear option!” Thank you.) I have to admit that I’ve called for an end to the filibuster as an anti-democratic practice with no constitutional justification. Both parties have abused this process, although the Republican Party has once again taken the lead in making Congress an ineffective and lowly-regarded institution through its use of the filibuster.  And not wanting to be a hypocrite (I’m not a politician) and not wanting to suffer the cognitive dissonance of self-contradiction, I have to respond. And I respond that the filibuster should be ended—just not yet. (St. Augustine pioneered this move.) Its end should come as a part of a grand bargain.

Here’s the grand bargain. You and Senator McConnell go to President Trump and report that the Gorsuch nomination cannot come up for a vote because of a filibuster. You could exercise the “nuclear option,” says President Trump, but the filibuster has been a very useful tool for Republicans, and you don’t want to lose it. "We’ll be in the minority again, perhaps soon". (I’m rooting for 2018 myself.) Now the light will go off in each of your heads at the same time: we could change the rules now, and then change them back later! But someone might have a twinge of conscience —I hope it’s you—it certainly won’t be President Trump—a pained thought of being recognized as a cheater, and the realization of the loss of an opportunity to put principle above party in the interest of the nation. You demur. Instead, you offer this.  

“I’ve spoken with Senator Schumer (the minority leader) and he will agree to this plan: You will withdraw the nomination of Judge Gorsuch (don’t tell him he’s fired, that’s not it). You nominate Judge Garland. I will hold a hearing on his nomination, and we will vote on it. The vote will be on whether he’s qualified to sit on the court. No party will use the filibuster; in fact, for the good of the Senate and as a matter of democratic integrity, we’ll end it. Then, at the next vacancy, you can once again nominate Judge Gorsuch. We will hold hearings and vote on his nomination. The vote will be on whether he’s qualified to sit on the court. No filibuster.” You’ll conclude, “Mr. President, this is a win-win outcome.” He’ll respond, “What the hell is that?”, but pay no heed.

There you have it. Share this with your colleagues. It’s a great plan.  

Steve Greenleaf,

Your Constituent