James Madison and the Indispensable Provision

James Madison

Since the U.S. House of Representatives voted to formalize an Impeachment Inquiry today, I thought it a good time to reflect on first principles.

In July of 1787 the Founding Fathers were still in Philadelphia drafting our Constitution. James Madison, known in our history as the Father of the U.S. Constitution, played a major part in organizing the convention and constructing the final draft of the Constitution and then getting it ratified by the states.

Below is a segment from a transcript taken on July 20th during the constitutional convention, as the debate turned to a provision for removing a President from office. Here is Madison discussing why this provision was so important:

Mr. MADISON thought it indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic. (Bolding added)

The evidence before us brings Madison’s concerns front and center. For most of us, at least, there is no denying what stands in front of us. The only real question now is whether Americans will act to “support and defend the Constitution and laws of the United States of America…”.*

In overcoming this historic challenge we should draw inspiration from the words of Abraham Lincoln: “Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty as we understand it.”

“Yet again in America”

“And uniquely American, this happens with regularity, in large numbers, as a pattern, just here, nowhere else.”

“Now, gun laws, regulations, background checks, soft targets, body armor, death penalty, mental health, time for action, I promise, thoughts and prayers. We hear yah. We heard you last time, and the time before that. And we’ll likely do it all soon…yet again in America.”

Ron Chernow as guest speaker at the White House Correspondent’s Dinner

Last night was the White House Correspondent’s Dinner. Now, if you haven’t watched this annual event before then you should know that the the guest speaker is usually a comedian who roasts the President, his administration, the media, and any other opportune target in the audience. In the past, when we had a President with a sense of humor, humility, and the ability to laugh at himself, the President would actually take the podium and make fun of himself, his administration, and, yes, take humorous jabs at the media. It’s all in good fun. The whole idea is to celebrate our nation’s constitutional protections of a free press and its function of ensuring our political leaders are held accountable.

As I said, typically the guest speaker is a comedian, but after last year’s speaker pushed the limit, it was decided to tame it down a bit. Last night’s guest speaker (video below) was the biographer and historian Ron Chernow. If you haven’t read any of Ron’s books, let me recommend his biography on Alexander Hamilton. A superb book that was the inspiration for the awarding winning broadway musical, Hamilton. Ron’s most recent biography is on Ulysses Grant, which is the inspiration for a new movie (in production) about Grant, reportedly being directed by Steven Spielberg.

I must admit when I originally heard Ron Chernow had been chosen as the guest speaker, I thought “Well, that’s a very tall order for a scholar to deliver on. They’re not usually funny people.” I mean a historian taking the slot reserved for a professional comedian? I had heard Ron Chernow discussing his books and answering questions about them, and he is a good speaker for the most part, but as the primary guest speaker at the White House Correspondent’s Dinner? I was struggling even if a side of me thought it was a good turn.

Anyway, Ron was indeed far more tame. But I must say he acquitted himself quite well in my opinion. He did provide some humorous and well delivered and deserved jabs at the current administration. Had he not, to be sure, it would have been far too great a retreat from the spirit of the freedoms being celebrated by the event. Ron found that fine balance between pure joke and the jokingly serious. It was, in the best of ways, an instructive and entertaining speech. Ron showed intelligence, grace, wit, humor, and humility. All qualities that are sorely lacking on Capitol Hill and especially at 1600 Pennsylvania Avenue.

Watch the speech:

Should Congress forgo being paid during a government shutdown?

Senator Rick Scott (R-Fla) is co-sponsoring legislation that would make all members of congress forgo their pay checks during a government shutdown. Please note that government shutdowns are now used as a legislative bargaining tool. It seems very irresponsible, reckless, and cruel to me, but that’s where we’re at in this country right now.

On the surface the forgo pay legislation seems like a very fair idea. In theory, this legislation should ensure all members of congress are feeling the same pains and pressures as those government workers not getting paid or those citizens losing services during a government shutdown. In theory that seems very fair. But that’s not how this will work in practice. All members of Congress will not face the same personal effects of not getting paid.

For members of congress like Rick Scott it’s easy to be for this legislation because he’s worth $232 million dollars. He had the ability to use $64 million dollars of his own wealth to get himself elected to a job that pays $172,000 a year. Think about that. So he and his fellow millionaires in congress (a sizable group) don’t need their salary at all. It’s pocket change to them.

But what about those members of congress who do?—who like the vast and overwhelming majority of Americans do need their salary to survive? These members, who’s lives and daily concerns are much closer to the average American’s, without their salary, may start to feel personal pressures about legislation and the need to make concessions that rich members of congress don’t and never will feel. So why should wealthy members of congress, regardless of party, have yet another (among the so many already) method of influence over legislation and legislators that favors wealthy interests? At the national level our government is already a well entrenched business plutocracy. Shouldn’t we be trying to weaken this, not strengthen it?

In the millionaire’s club one doesn’t care about the piddly little salary the government pays you, one cares about power—again, Rick Scott was able to spend $64 million dollars of his own money on his own Senate election and not because he wanted or needed that congressional salary, I can assure you. So why, I ask, should we give an already powerful group another legislative tool of power and influence?

I don’t think we should.

Thoughts on Judge Kavanaugh’s Testimony

0928_ford-kavanaugh01-1000x667
Dr. Ford & Judge Kavanaugh

This past Thursday’s Senate hearing was, as expected, a spectacle. I won’t go too deep into the politics and the performances, i. e. Senator Lindsey Graham, of those on the Senate Judiciary Committee, but I did want to note something I found disturbing.

Dr. Ford gave very credible testimony in which she said she was “100% sure” that Judge Brett Kavanaugh had sexually assaulted her decades ago. She was poised for the most part and provided specific details. She made an allegation, but beyond that we have no corroborating evidence to back up her allegation. From a legal standpoint that’s important. No one should ever face legal jeopardy over an uncorroborated allegation. But let’s be clear, these Senate hearings aren’t legal proceedings. This is a political process. These confirmation hearings are about fitness for office and that is the central question under consideration.

So we heard from Dr. Ford. She made an allegation. She has the right to make that allegation, and we should want to hear and assess what she has to say against a nominee who’s being considered for a lifetime appointment to the highest court in the land. And since the Court, as with Congress, has itself gotten so highly partisan and dysfunctional we should be highly concerned about not making it even more so. I would argue that all this “he (or she) is qualified for the job” talk is trivial and beside the point in considering any nominee for any federal court. Most nominees that come before Senate confirmation are “highly qualified.” But being qualified is basic. It’s pretty damn clear the nominations are made with party politics in mind, not judicial independence. In fact, a solid record of judicial independence, of not towing the ideological line, is likely to get your name removed from consideration. So a judge’s politics has a big play in all this…and we should all be concerned with just how much it plays into a judge’s decision making.

And this brings me to my concerns about Judge Brett Kavanaugh. At first, prior to Thursday’s testimony of Ford and Kavanaugh, my feelings were that unless we have some corroborating evidence we should not sink a nomination over an allegation. We should take this allegation seriously, but fundamental fairness to the accused is fundamentally more important in my view. Because any of us can be unjustly accused. People, I know this may be hard to believe, will sometimes lie to destroy other people. To be clear, I’m not saying Dr. Ford is lying, only that in my view you should have more than an uncorroborated allegation before you decide to act against someone. And that was my view before Thursday.

But then came Brett Kavanaugh’s Thursday testimony before the committee, and another area of concern about his fitness for office emerged in my view. I completely understand why Judge Kavanaugh would be angry over Dr. Ford’s earlier testimony before the committee. Kavanaugh believed he’d been unjustly slandered. I’d be angry too. But in defending himself Kavanaugh went too far in my view. You see, as Kavanaugh began talking, at first, I was very sympathetic and felt Kavanaugh’s nomination should be confirmed. But then he crossed a line. He began to heave hyper partisan attacks on democratic members of the committee and even claim some conspiracy by the Clintons and other left wing groups. He did most of this on the edge of a barely constrained rage. And with that my support for his nomination melted away.

And here’s why: Kavanaugh is being appointed to a lifetime position on the highest court in the land. His demeanor and temperament are absolutely part of any assessment for this office. Judge Kavanaugh is not new to Washington politics and knows exactly why he was nominated—because of his “conservative credentials.” So he’s no choir boy about the implications of his appointment for those who aren’t so conservative and those who vehemently disagree with his judicial philosophy. Kavanaugh knows full well that confirmations are a political process, which means it can be a blood sport. There’s a lot at stake and Kavanaugh knew this fully.

So what should he have done? Well, he should have vehemently defended himself, sure, but he should have demonstrated far greater restraint. America doesn’t need another supreme court justice who’s basically confirmed for all of us his deeply held animus for members of the political opposition—who represent, by the way, millions of his fellow Americans. Just imagine how Republicans would react if the shoe was on the other foot. We already knew why Kavanaugh was being nominated, but most of us, I think, had a faint hope that all judges might, just might, be able to sometimes put politics aside for the sake of the nation when forming their judicial opinions. I guess I’d like to believe that while Judge Kavanaugh may have a conservative judicial philosophy (and that’s fine) he could be independent minded and not a mere partisan in a black robe. But by any charitable account, Kavanaugh chose to make it clear he has a deeply held animus against members of the democratic party and that he will carry that animus to the supreme court with him. I don’t care what your politics are, I personally don’t think it’s a good idea to confirm a judge knowing the very basic idea of fundamental fairness, independence, and the impartiality of the nominee are in serious question.

Consider Canons 1 & 2 of the Code of Conduct for United States Judges:

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. . . Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor.

&

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.

I cannot see how anyone could watch Judge Kavanaugh’s testimony this past Thursday and not feel that his fairness, independence, and impartially had been seriously compromised.

The members of the Senate Judiciary Committee represent states and party interests. None of us were surprised that politics openly influenced them or their decisions during this process. However, to watch a supreme court nominee vent his deeply partisan views was disturbing considering the position and power he will have for decades if confirmed.