“Just as every cop is a criminal /And all the sinners saints
As heads is tails / Call me Lucifer
Cause I believe some restraint / So if you meet me
Have some courtesy /Have some sympathy and some taste
Use all your well-learned politesse/ Or I’ll lay your soul to waste”
— Keith Richards and Mick Jagger, 1968
“You do not abandon ship because you can’t control the winds.” Sir Thomas More
“I would uphold the law if for no other reason but to protect myself.” Sir Thomas More
“See me safe up, for in my coming down, I can shift for myself.”
— Sir Thomas More to Guard Helping Him Mount Scaffold
I was watching Meet the Press this afternoon (July 3, 2018) and Chris Janzing was sitting in for Chuck Todd, and the panel included a Republic Strategist generally aligned to the right of the Never Trumpers, an NBC editor, and a New York Times columnist.
The discussion turned to the issue of the Supreme Court pick and how likely it was that the Democrats could flip a Republican Senator thus preventing the confirmation prior to the mid-terms.
Well, this got a bit more personally heated than normal. Janzing seems to be more provocative than Chuck Todd, but the heatedness began when the Times columnist, Michelle Goldberg made a comment to the effect that Senator Susan Collins was so undependable and creepy and that Anthony Kennedy had betrayed the country by resigning when he did.
Susan del Percio was enraged, as any good Republican operative would have been, and pointed out that Kennedy was 81 and that Susan Collins was dedicated public servant and didn’t deserve that sort of attack. Goldberg didn’t back down; nor did Del Precio. Janzing calmed it down by turning to Beth Fouhy, an experienced establishment journalist to calm things down.
What if both women in the argument were correct? Susan Collins has been a moderate Republican, but these days moderate Republicans who are not retiring from the Senate or House are hard to find. She had a promise from Mitch McConnell to get her vote on the tax bill; he then waved off that promise last fall.
She was asked if she felt that she had been lied to and she said she was disappointed. On this nomination, she opposes any attack on Roe v. Wade and has said that she will not vote for someone whom she doesn’t trust to uphold it on the court.
Now, all the nominees have lots of judicial publications to their credit, and it’s fairly easy to use Lexis or Google or any other search engine to check their opinions and writings on the subject. Also, since all the candidates on Trump’s list are Federalist Society approved, it’s reasonable to assume that they have been vetted to support ending Roe if not calling for national criminalization of abortion, outlawing birth control and punishing teenage pregnancy with branding.
So, Senator Collins can ask them, and sitting here in Barstow, I know what the result will be for those questions. That is, “Senator I am not able to discuss my opinions on cases that may come before the court; I will examine any case, consider the law, and vote accordingly.” That is the boilerplate response to all questions in judicial nominations, so that the nominee will not appear to have made us their mind up prior to a case in a particular category hits the court.
Another way to dodge this question effectively is to self-righteously say that you’re not willing to address hypotheticals. That’s becoming very popular among press secretaries and people who are dodging if not the law, at least letting the audience — Congress, the Press, the people of the United States — know what the person really thinks about an issue.
By letting people get away with this means that we don’t take truth all that seriously. In effect, we expect that nominees, candidates, witnesses, politicians are all going to prevaricate.
As a Jesuit-trained, undergraduate philosophy and rhetoric scholar, I can appreciate the technique. However, the technique creates an ethical problem, because prevarication is at best a way of obscuring your own beliefs by not saying what you really think but what the questioner wants to hear or at least will accept.
At one end, it’s politesse, but at the extremes it’s lying. In fact, a lot depends on what the listener is willing to tolerate and what the listener finds insane.
I occasionally mention Robert Bolt’s A Man for All Seasons, the story of Sir Thomas More, great friend of Henry VIII, author, lawyer, statesman and ultimately judged a traitor because he refused to agree that the King could replace the Pope and that the King could divorce Katherine of Aragon to marry Anne Boleyn.
More was not tortured, but between loss of office, estates, money and prestige he was certainly pressured by the King and the King’s government. Imprisoned in the Tower, he continued to avoid giving a treasonous answer or one that would require him to either lie directly or face a traitor’s execution.
In More’s case, that would mean death by hanging, drawing and quartering.
More was finally backed into a corner by perjured testimony, and had to make that choice. He could renounce his beliefs and agree to sign the various oaths and pledges to show he agreed with the King.
Alternatively, he could remain true to his beliefs and faith. He chose the truth as opposed to expedience, and remained a honest man.
In his final statement, he pointed out that he had never spoken against the King; had not written against the King; and had never discussed the issue with anyone; on pain of loss of heaven, he said that if the informer’s story was true he would give up the face of God.
He refused to sign a declaration of support for the actions, and had withdrawn from office and private life. He said that he was a true and loyal subject of the crown, but that on this issue he had to yield precedence to his conscience.
Well, there had never been much doubt about the verdict from the time of his arrest, and More had known exactly what he was doing. Condemned to be executed by beheading, which was commuted to beheading, More was executed on July 5, 1545. His family was denied permission to be at the execution on Tower Hill.
His last words to the crowd there were “I die the King’s good servant, and God’s first.” He said a prayer, stood up and kissed the executioner as a sign of forgiveness, and told him, “Be not afraid to do thine office.”
Thomas More was a far more skilled jurist and orator than the people coming before the Senate for this nomination. Pushed into a corner, knowing he faced a pretty grim death, he told the truth.
I think that the lucky nominee for the court faces at worst some no votes; should they lie, I suppose they could considered in contempt of Congress and perhaps impeached for that but it’s a pretty high bar with a reasonable defense, that being “My opinion has changed over time.”
People’s opinions do change based on further thought, experience and discussion. Obviously, what could happen under a normal Congress and a normal President and what might happen in this age of Trump are possibly distorted.
While I shudder at some of the proposals on the far right for loss of reproductive rights being added by some fundamentalist wing nuts such as prohibiting birth control, there are other issues floating before us that demand a lot of attention.
These include things like the applicability of the President’s pardon power to himself; the use of pardons to suborn perjury or obstruction of justice; the applicability of federal laws to the President in addition to the emoluments clause and so on.
I would hope that the Senate Judiciary Committee would have the collective integrity to not accept the traditional dodges of avoiding hypotheticals or not wanting to prejudge the case to get direct answers to direct questions.
This, by the way, is the way that most witnesses are questioned, and the Senators are all there to serve not their constituents, nor the President, nor their party but the good of the United States and the Constitution.
Senator Maria Cantwell of Washington is a very smart and very principled individual and Senator. In full disclosure, I voted for her while a resident of Washington both in her first primary and in every other election thereafter.
One of my regrets when I left Washington for this awful place was that I’d no longer be voting for her or Patty Murray, but they’ve done fine without me. In a weekend appearance on Meet the Press, she made the same point. This is too important for Kabuki theatre.
So, in answer to my question whether Goldberg and Del Percio could both be right, I’d say up to a point. Susan Collins has shown some real courage at times, but she has also given in to pressure from her colleagues. Anthony Kennedy at 81 should probably have retired sooner but he has the right to do that whenever he wanted to. What happened here is that the issue got clarified, with some passion but no knives were pulled.
If you want to avoid the politesse-prevarication trap, you have to ask very direct questions, and demand answers. On Roe, it’s fairly simple: Judge so and so, have you ever discussed Roe V. Wade and your opinions on it with anyone? Then ask about whom. With the head of the Federalist Society? With Mitch McConnell? With Donald Trump?
On Presidential responsibility to obey the Rule of Law, sample questions might be “Tell me whether in your opinion, does the president have a responsibility to respond to a grand jury subpoena in a criminal matter?” “Let’s talk about the emoluments clause? Does it apply to the President? Is the president’s behavior subject to other federal laws concerning conflicts of interest?”