Gorsuch’s career advanced on a classic conservative and classic Republican trajectory. There is no scandal in that. The court is awash in ideology and partisanship. Clearly defined conservatives and clearly defined liberals have been appointed to the bench before, as have partisan Republicans and partisan Democrats. Many of them have served well and honorably.
The fundamental problem with the Gorsuch nomination was not with the politics of the nominee, although many reasonable people opposed him because they believed Gorsuch would be unable to overcome the political biases of a lifetime. The fundamental problem was with the politics of obstruction and lying that Republicans, including Donald Trump, employed to block Merrick Garland’s nomination. Within hours of Scalia’s death, Senate majority leader McConnell declared that “this vacancy should not be filled until we have a new president.” Senate Republicans, with Trump cheering them on, argued that Supreme Court vacancies are simply not to be filled in presidential election years.
That was a lie. The Constitution entertains no such instruction. In fact, it sends the opposite message. The Constitution does not say that presidents may nominate justices. It says they shall do so. The Constitution does not say that presidents are limited in this duty by the timing when a vacancy occurs. There is no footnote that says presidents shall only perform their duties in nonelection years. Nor is there a footnote that says members of the Senate shall only provide appropriate advice and consent when a president is in the early stages of a term. Nor is there any language that suggests that a president’s nominee to the Court must parallel the ideology of the justice he or she would replace—or that of the Senate.
Yet Republican senators responded to the death of Justice Scalia by proposing to shred not just the Constitution but precedents that date from the first years of the American experiment.
American history is full of instances where Supreme Court justices were nominated, confirmed and seated in presidential election years.
On September 7, 1956, U.S. Supreme Court justice Sherman Minton penned a note to President Dwight Eisenhower, explaining that he intended to retire from the court. Minton, a former Democratic senator from Indiana who had been appointed to the Court by President Harry Truman, was in ailing health. Eisenhower responded with a note expressing his hope that Minton would enjoy his time off.
Justice Minton left the Court on October 15, 1956, as the country was focused on that year’s presidential campaign and intense battles for control of the House of Representatives and the Senate. Eisenhower, the Republican nominee for a new term, had a lot on his mind. But he found time that week to fill the vacancy created by Minton’s departure. As the Senate was in recess, the president simply appointed New Jersey supreme court justice William Brennan Jr. to the high court.
Justice Brennan took his place on the bench immediately. That was that. And that is a part of the history of how Supreme Court vacancies are filled in election years.
Recess appointments are rare (although Eisenhower also made initial appointments of Chief Justice Earl Warren and Justice Potter Stewart during recesses in 1953 and 1958, respectively) and are eventually followed by post-recess, post-election nominations, and confirmations (as was the case with Warren, Stewart and Brennan). But nominations and confirmations of new justices in election years are relatively common. Indeed, the authoritative Scotusblog notes: “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”
There is ample precedent for nominations and confirmations in politically contentious periods during, or on the cusp of, presidential election years. Supreme Court justice Anthony Kennedy was confirmed in a presidential election year, gaining Senate approval just five days before the Iowa caucuses of 1988. He was sworn in six days before the New Hampshire primary. Justice Clarence Thomas was confirmed in the fall of 1991, well after candidates had begun announcing and campaigning for the 1992 race that would see President George H. W. Bush (the man who nominated Thomas) swept from office. It’s worth noting that, despite the proximity to an election, and despite the fact that the Senate was controlled by the opposition party, Bush nominated a new justice who was dramatically more conservative than the man he would succeed, Justice Thurgood Marshall.
It is also worth noting that one of the greatest justices ever to sit on the Court, Louis Brandeis, was nominated by Democratic president Woodrow Wilson in 1916. It was a presidential election year that was expected to be closely contested. Brandeis was a leading progressive (some of his critics decried him as “a radical,” while Supreme Court justice William O. Douglas would eventually characterize him as “a militant crusader for social justice”). Brandeis was also the first Jew named to the Court, and at a time when anti-Semitism and other forms of prejudice were so widespread and concerning that B’nai B’rith had recently formed the Anti-Defamation League. America was on the verge of entering World War I, corporations were violently suppressing labor organizing and strikes, and anti-immigrant sentiment was on the rise. Wilson had a Democratic Senate, but many of the Democrats were southern segregationists who had little sympathy for Brandeis’s progressive politics. The nomination stirred plenty of contention and serious opposition, yet Brandeis was approved by the Senate on June 1, 1916. Ten days after Justice Brandeis was confirmed, Justice Charles Evans Hughes resigned from the high court in order to accept the Republican nomination against Wilson. That created a second election-year vacancy, which was filled in two months.
It may be too much to expect conscience-challenged partisans like McConnell and Texas senator Ted Cruz to acknowledge history, or to respect the Constitution. But Judge Gorsuch had a duty, as a jurist and as a man of the law, to reject false constructs, radical rewrites of history and mischaracterizations of constitutional intents and practices. Gorsuch failed in that duty when he accepted this nomination and then refused during his Senate hearing even to acknowledge the wrongdoing of those who made it possible.
Gorsuch should have recognized the wisdom of former senator Feingold’s observation during the confirmation process that “we need to stop talking about the Gorsuch nomination as if it is about a single seat on the Supreme Court. This nomination, this hearing, is about a precedent that if allowed to stand will tarnish the legitimacy of our highest court for generations to come.”
Instead, Gorsuch put his own political advancement ahead of a duty to the republic. And, in so doing, he extended the damage done by Republican partisans in 2016.
Gorsuch served himself.
But he also served the party with which he was aligned before he entered the judiciary. As Feingold warned: “If Republicans get away with the judicial coup they launched last year when they refused to grant Judge Merrick Garland a hearing, such a cynical political ploy could become commonplace. The GOP will apply it to lower courts. They will refuse to grant a hearing in the year before a midterm, or during the two years of a presidential race. The Supreme Court will become a permanent pawn of the GOP.”
— 28 —
DONALD TRUMP’S VERY OWN MILHOUS
Mike Pence
Vice President of the United States
On October 5, 2016, in the one and only vice presidential debate of the campaign, Mike Pence grumbled about Democrat Tim Kaine’s “avalanche of insults” after the senator from Virginia reviewed a litany of Trump’s insulting comments about women, federal jurists, and American prisoners of war. When Kaine pressed his point on Trump’s racism and xenophobia, Pence twisted the scenario once more, griping: “Senator, you whipped out that Mexican thing again.”
Pence did it all with a straight face, which, some might suggest, was Nixonian. Richard Milhous Nixon’s great skill as a campaigner was his ability to look into a television camera and make statements that he knew to be false.
But Nixon had a measure of shame. He would sweat; he would stumble in his delivery; his eyes would go a little wild. Not Pence.
He is calm and deliberate when mouthing absolute falsehoods. Go back and watch the tapes from the campaign that made a failing governor of Indiana into the forty-eighth vice president of the United States, or watch any of the tapes of Pence defending the Trump transition or the Trump presidency. No one, not Sean Spicer, not Kellyanne Conway, not Trump himself, is as good at denying that Donald Trump said or did things that Donald Trump is famous for saying and doing. The only thing that Pence is better at is denying that Mike Pence said or did things that Mike Pence is famous for saying or doing.
But if you’re putting together your own collection of Mike Pence’s big lies, you should begin with the vice presidential debate.
That October 5, 2016, debate performance earned the Republican contender high marks from feckless pundits who imagine that shamelessness is a mark of political agility. But that also unsettled Americans who remember the past and fear for the future. Why? Because it was that debate that confirmed for any remaining doubters that Mike Pence really is more Nixonian than the famously disreputable thirty-seventh president.
Nowhere was this chilling detail more evident than when Pence uttered the most cynical line of a debate that was thick with cynicism. Early in the program, after Pence had danced his way around a number of straightforward questions regarding Trump’s misstatements and misdeeds, Kaine tried to force open a discussion about the maybe not a billionaire’s shadowy financial arrangements. Referring to Pence, Kaine said: “I am interested to hear whether he’ll defend his running mate’s not releasing taxes and not paying taxes.”
“Absolutely I will,” responded Pence, even as he absolutely did not answer the most basic questions about Trump’s lack of transparency. Moderator Elaine Quijano pressed Pence: “Governor, with all due respect, the question was about whether it seems fair to you that Mr. Trump said he brilliantly used the laws to pay as little tax as legally possible.” Pence’s reply was more shamelessly disingenuous than anything Nixon would have dared attempt.
“Well,” began Pence, “this is probably the difference between Donald Trump and Hillary Clinton and Senator Kaine. And, I mean, Hillary Clinton and Senator Kaine—God bless you for it, career public servants, that’s great—Donald Trump is a businessman, not a career politician. He actually built a business.”
What went unmentioned, and this is on Kaine and Quijano, is that someone else on Tuesday night’s stage was a career politician.
Who might that be? Well, Mike Pence, of course. The governor may identify as a Republican and a conservative, but he is first and foremost a political opportunist of the old school who is constantly on the make, looking for the next opening to advance a career that Pence still hopes will land him in the Oval Office.
It is true that Pence gets to visit the Oval Office now and again as vice president. He wanders in to check on what loops he is being left out of by the people who actually run things. And then it’s back to watching Fox and waiting for tie votes in the Senate, like the one he broke to make his “friend” (which is what career politicians call major campaign donors) Betsy DeVos the secretary of education.
That Pence is not taken overly seriously in the Trump White House was illustrated agonizingly by the Mike Flynn scandal. Flynn had met with Russian officials during the Trump transition. The retired general knew this was going to be a problem, so he lied about it. One of the people he supposedly lied to was Mike Pence, who went on TV and vouched for Mike Flynn. Then everyone who mattered at the White House found out that Flynn was lying, or maybe just confirmed what they already knew. But they let several weeks go by before doing anything about Flynn lying. Then the story hit the news and the president claimed that he had to fire Flynn because Flynn had lied to Pence. But the president had to have known about that lie for weeks, so that lie wasn’t the real reason the scandal-plagued Flynn was being tossed overboard. So Pence was either a useful tool or a useful fool. Either that, or Pence was lying about being lied to. No matter. The bottom line is the same: the Flynn fiasco confirmed that Mike Pence had been reduced to an asterisk on the Trump staff list.
Pence always understood that he was an afterthought for Trump, just as Trump had been an afterthought for him.
Back in April of 2016, Pence endorsed Texas senator Ted Cruz’s last-ditch attempt to prevent Trump from securing the Republican nomination. That move might have knocked Pence off Trump’s vice presidential shortlist. But, luckily for Pence, he pulled a classic political careerist stunt. Even as he was endorsing Cruz, who was in the middle of a bitter fight to the political death with Trump, Pence went out of his way to avoid offending Trump.
The May 3, 2016, Indiana primary was the last stand at the ballot box for Cruz and the so-called #NeverTrump movement. It was a brutal battle that degenerated into name calling over whether Cruz’s father was part of the plot to assassinate John F. Kennedy. (Spoiler alert: he wasn’t.) Yet, Pence was all good with everyone. Just days before the voting, the governor announced on Indiana news radio station WIBC: “I’m not against anybody, but I will be voting for Ted Cruz in the upcoming Republican primary.”
That was about as tepid as an endorsement could get.
But Pence wasn’t done. He watered things down a little more by praising the guy he wasn’t endorsing. “I particularly want to commend Donald Trump, who I think has given voice to the frustration of millions of working Americans with a lack of progress in Washington, DC,” he explained in the radio interview. “And I’m also particularly grateful that Donald Trump has taken a strong stance for Hoosier jobs.”
That was classic Mike Pence. He would back Cruz but keep his bases covered with Trump. The frontrunner took note of the governor’s carefully crafted ambiguity when Trump appeared on Fox News Sunday and described Pence’s declaration for Cruz as “the weakest endorsement anyone has seen in a long time.”
The political strongman was not offended by Pence’s weakness. Rather, he recognized this obscure governor as someone who was sufficiently shameless and calculating to meet his standards. Trump confirmed this on July 14, 2016, when he announced that he had chosen the “weakest endorsement” governor to be his running mate on a ticket that prominent Republicans with common sense and/or a conscience had indicated they were unwilling to join.
Trump and Pence were made for each other—out of the spare parts of tossed-off morality and abandoned consciences.
As Indiana political analyst Andrew Downs told Politico at the time of the Trump announcement: “Mike Pence clearly would like to be in the White House. Everybody knows he would like to be in the White House, and one way to get there is by being the VP.” So he was in, even if he supposedly disagreed with Donald Trump on, well, just about everything.
As for Trump, well, Pence wasn’t his first choice. Or his second. Or his third. They had all said no. Pence wasn’t even his fourth or fifth or sixth choice. In fact, Pence came after New Jersey’s Chris Christie, who Trump reportedly offered the VP spot to, before he was talked out of it by soon to be ousted campaign manager Paul Manafort (who thought Pence brought more balance to the ticket than another hot-headed guy from the northeast) and, according to some news reports, Jared Kushner, who was still cranky about Christie getting his dad sent to jail.
Trump was frustrated with the whole process. But he recognized that he needed a sidekick who was sufficiently connected to corporate and conservative insiders and sufficiently deferential to the presumptive nominee.
Trump, who had gone out of his way to position himself as an outsider challenging the political establishment, found in Pence a consummate insider who was wedded to the conservative political establishment and its generous network of wealthy donors. That worked for Trump because he was still struggling to unite a Republican Party that was made up of social, economic and foreign policy wings that did not always get along. Trump had offended most of them. But Pence had spent a
lifetime appealing to each of them, even at the expense of his broader appeal to mainstream general-election voters.
A political careerist raised in an Irish Catholic family that revered Democratic president John Kennedy, as a young man Pence chose a new hero, conservative Republican Ronald Reagan, and a new politics, that of the religious right. Adopting the language of the religious-right activists who were becoming the dominant force in the Grand Old Party, Pence declared himself to be “a Christian, a conservative, and a Republican, in that order.”
Pence was a movement man with a personal agenda. He desperately wanted to be a politician. Unfortunately, he wasn’t very good at it. At least not initially.
Two years after finishing law school at Indiana University, he was campaigning for Congress. And losing.
After two defeats in 1988 and 1990 for a U.S. House seat that combined rural and urban counties and was then represented by Democrat Phil Sharp, Pence attached himself to the “state-based free-market think-tank movement” that corporations and the Koch brothers have used to advance their agendas. As president of the Indiana Policy Review Foundation, Pence was associated with the State Policy Network that the National Review in 2007 described as a group of “mini-Heritage Foundations—at the state level.”
That gig gave the ambitious but unsuccessful congressional candidate the connections he needed to become a right-wing talk radio host. The Mike Pence Show was syndicated across Indiana at a time when Rush Limbaugh and other stars of conservative media were making talk radio the main means of communication for a new and more rigid right. To this day, Pence is a Limbaugh loyalist; after the talk radio giant announced at the time of Barack Obama’s first inauguration that he hoped that the first African American president of the United States would fail, Pence announced in a January 29, 2009, interview with MSNBC that “I don’t believe Rush Limbaugh has a racist bone in his body. If you’re suggesting that his statement had a racist element in it, I commend you to a greater understanding of the positions he’s taken. He’s a man about opportunity of all Americans, regardless of race, creed, or color. That’s why he’s so admired and appreciated across America.”