JC’s Confessions #16

In the first few seasons of The Late Show, Stephen Colbert did a recurring skit, now a best-selling book, called Midnight Confessions, in which he “confesses” to his audience with the disclaimer that he isn’t sure these things are really sins but that he does “feel bad about them.” While Stephen and his writers are famously funny, I am not, so my JC’s Confessions will be somewhat more serious reflections, but they will be things that I feel bad about. Stephen’s audience always forgives him at the end of the segment; I’m not expecting that – and these aren’t really sins – but comments are always welcome.

JC

I should be watching the Senate Judiciary committee’s hearings on the nomination of Amy Coney Barrett to the United States Supreme Court right now.

I can’t bring myself to do it.

There are a lot of reasons.

First, it renews my sorrow at the loss of Ruth Bader Ginsburg.

Second, it is difficult to cope with the nomination going forward under the current circumstances. There is the proximity to the election with voters already casting their ballots and the hypocrisy of the Republicans in moving forward with the confirmation process when they would not allow a hearing for President Obama’s nominee in 2016 many months before the election. There is also the fact that the Senate is not in session due to several senators being COVID positive; if it isn’t safe to be in session, in-person hearings should not be held, either.

Third, I’m leery of how the subject of religion will be handled. Like me, Judge Barrett is Roman Catholic, as are five current members of the Supreme Court with a sixth having been raised Catholic. In a country that is predominantly Protestant, it seems odd to have so many Catholics on the Court. I realize that justices make determinations on the basis of the law, but there are times that some of the arguments made in cases cross into religious belief and the Catholic hierarchy sometimes makes arguments that are factually incorrect. For example, some recent cases have upheld employers’ refusal to offer birth control in the medical insurance of women employees on the grounds that birth control is abortifacient, which, while taught by the Catholic bishops, is not medically true. Likewise, you see arguments that same-sex marriage is an assault on religious freedom even though it is a civil law; while some religions choose to offer ceremonies for same-sex couples, no religion is compelled to do so.

Fourth, I remain suspicious of the originalist/textualist bent that Judge Barrett exhibits. That judicial philosophy fails to account for how the meaning of words changes over time. In my view, one of the strengths of our Constitution and laws is that it can be interpreted in the light of new circumstances. Let’s face facts: many of the men who wrote the Constitution were slaveholders who never envisaged that one day Blacks, women, and people who don’t own property would be voters. Many modern issues could not have been imagined by people in the 18th century.

However, some issues that were clearly spelled out in the legal writings of the 18th century are ignored by originalists when it suits them. For example, the second amendment very clearly places the right to bear arms in the context of a “well-regulated militia” but originalists often ignore that part of the text and original intent. It’s also very clear that the Founders understood that corporations are not people; a future Supreme Court may someday strike down the Citizens United ruling on that basis.

I don’t know what will happen with this nomination or with the Court in the coming years, but, right now, I can’t bear to watch.

testimony

I have spent (a lot of) hours over the past two weeks listening to testimony in the Trump impeachment inquiry.

I was particularly impressed with Ambassador Marie Yovanovitch, Lt. Col. Alexander Vindman, and Dr. Fiona Hill. They were all knowledgeable and forthright, despite attacks on them personally by the president and his allies. The White House instructed nearly all the witnesses not to testify, even though they were under Congressional subpoenas. It was brave of them to appear, first in closed door depositions and later in public testimony.

Some of the Republicans complained about the closed door depositions, but they proved to be very valuable. It meant that each witness could share what they knew without being influenced by another person’s testimony. As it turned out, most of the witnesses’ recollections jibed with all the others, except for EU Ambassador Sondland, who amended his deposition after reading some of the others’ when they were released publicly. For the record, it is not true that Republicans were shut out of the depositions. There were three committees involved and the Republican members and their legal counsel had equal opportunity to question the witnesses. Some also complained that the White House lawyers were not involved, but their role will come later, if there is a trial in the Senate. The House is investigating possible articles of impeachment, which are like an indictment in the courts. The House committees are, essentially, acting as a grand jury would in gathering evidence and deciding to bring charges or not. Defense lawyers do not take part in grand jury proceedings.

Because the (hours and hours of) deposition transcripts were released prior to the public hearings, it was assumed that the hearings would be pretty routine, highlighting certain aspects of the depositions. However, new information emerged. One noteworthy incidence of this was when Ambassador Bill Taylor testified that a member of his staff had told him that he had overheard a phone call dealing with Ukraine between Ambassador Sondland and President Trump. This led to the staff member, David Holmes, flying from Kyiv to Washington to give a deposition and public testimony about it.

Another big surprise was when Ambassador Sondland acknowledged very plainly that there had been a quid pro quo; the administration in the US had withheld military aid and a promised White House meeting for the new Ukrainian president in order to get him to announce in public that he was launching an investigation of former US vice-president Joe Biden and his son Hunter, as well as an investigation of Ukrainian interference in the 2016 US presidential election, despite abundant evidence and indictments of Russian, not Ukrainian, operatives. The president and many of his allies have been saying for weeks that there was no quid pro quo, so such a frank admission from Sondland was startling.

Sondland was full of surprises. Another big one was that he implicated President Trump, Vice-president Pence, acting chief of staff Mick Mulvaney, and Secretary of State Mike Pompeo as all being “in the loop” about the situation. He also said that the president was directing their actions, which demolished the theory that some individuals were doing these things as rogue elements.

It would be helpful if documents, such as memos, contemporaneous notes, and call records, were available to the committees, but the White House is refusing all requests for documents, as well as blocking witnesses from testifying. This is bad. It seem like a coverup and obstruction of Congress/justice. Obstruction appeared in articles of impeachment for presidents Nixon and Clinton.

I was also perturbed by some of the statements and questions from the Republican members of the committee. They sometimes listed as facts things that are not. They kept asking about things that are not relevant to the impeachment inquiry and already debunked conspiracy theories.  They also insulted some of the witnesses by asking questions about unpatriotic behavior without any basis in fact. I remember during the Watergate hearings that there were Republican members of Congress who took their responsibilities very seriously, even though Nixon was also a Republican. In particular, I remember Senator Howard Baker.

Interestingly, Intelligence Committee chair Representative Adam Schiff in his at times impassioned closing remarks asked “Where is Howard Baker?” At the moment, no Republican members of Congress appear to be fulfilling their Constitutional role to discover and act on the truth, as Howard Baker did. Rep. Schiff concludes his remarks invoking the recently deceased Representative Elijah Cummings, “We are better than that.”

I hope we, as a country, are still able to uphold the Constitution and our highest ethical principles. If Republicans can’t imagine themselves as above partisanship, perhaps they can imagine how they would have reacted had President Obama acted the way President Trump has and then lied about it. During the eight different Congressional investigations into what happened in Benghazi, the Obama administration provided documents and testimony over and over, even after it was clear there was no conspiracy or crime involved. How would Congressional Republicans have acted if the Obama administration had stopped cooperating? Are they treating the Trump administration’s lack of cooperation in the same way? If the answer is no, they need to look at their duties to the country and their oath of office and consider if they are fulfilling them.

SoCS: going nuts

This week, the city of Washington DC has been going nuts.

There is, of course, the ongoing political battle in Congress regarding the impeachment investigation of the president. There have been more depositions this week and there was a vote in the House of Representatives laying out the rules for the next phase of the process, which will include public, televised testimony. I was a child when the Watergate investigation was going on in the Nixon administration and still remember some of the members of Congress from those hearings. Unlike the Watergate hearings, though, these will be held only in the House. The Senate committees are controlled by Republicans and they aren’t about to investigate a president of their party. I find this disappointing because there was at least some bipartisan cooperation between the parties during both the Clinton and Nixon impeachments. (Nixon resigned before he could be impeached.)

There was, though, a happier reason for people in the nation’s capital to go nuts. The Washington Nationals won the World Series! It had been many decades since a Washington baseball team won a championship. They succeeded my favorite team, the Boston Red Sox, who won the Series last year. I remember how I felt when Boston won their first World Series in decades in 2004, so I expect Washington fans feel similarly. I appreciate the Nationals team spirit. They way they pulled together and supported each other led to their victory. It was the first time that neither team won a game in their home stadium; at four of the Nationals wins were in Houston. That was really amazing! Congratulations to the Nationals! Thanks for giving Washington something positive to go nuts about!
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Join us for Linda’s Stream of Consciousness Saturday. The prompt this week was “nuts.” Find out more here:  https://lindaghill.com/2019/11/01/the-friday-reminder-and-prompt-for-socs-nov-2-19/