Sessions Has Chosen the Wrong Side of History in the Struggle for Justice
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=43327"><span class="small">Ed Kilgore, New York Magazine</span></a>
Monday, 09 January 2017 09:20
Kilgore writes: "Most liberals look at the prospect of Jeff Sessions serving as attorney general and see a waking nightmare. He's an extremist in a Republican Senate conference that already skews far right."
Former civil-rights lawyer and governor Deval Patrick suggests we look into the record of Jeff Sessions (pictured) as a federal prosecutor, instead of peering into his soul. (photo: Andrew Harrer/Bloomberg/Getty Images)
Sessions Has Chosen the Wrong Side of History in the Struggle for Justice
By Ed Kilgore, New York Magazine
09 January 17
ost liberals look at the prospect of Jeff Sessions serving as attorney general and see a waking nightmare. He’s an extremist in a Republican Senate conference that already skews far right. He has been a leader in a backlash against Republican moderation on issues ranging from immigration to crime and drugs to civil liberties. And on voting rights, he embodies the latter-day conservative belief that the only threat to the franchise is its extension to include people previously excluded. That he was for quite a few months the only member of the Senate supporting Donald Trump’s presidential candidacy doesn’t help his reputation outside the GOP, either.
And then there’s what happened when Ronald Reagan tried to make Sessions, a former federal prosecutor in Alabama, a federal district-court judge in 1986. Four former colleagues testified in the Senate that Sessions had made racially insensitive remarks in their presence, and that he generally felt disdain for the Justice Department’s role in protecting civil rights and voting rights. It was enough to make Sessions only the second proposed federal judge since the 1930s to be denied Senate confirmation, as two Republicans plus conservative Alabama Democrat Howell Heflin voted against him on the Judiciary Committee.
Sessions made his alleged persecution by Senate liberals the foundation of a very successful political career in Alabama. And when he won a Senate seat in 1996, empowering him to join his former tormenters in the Upper Chamber, it represented either vindication or vengeance, depending on how you looked at it.
All this background has unsurprisingly come back up as Sessions prepares to face the Judiciary Committee again, on January 10, this time as the proposed chief law-enforcement officer of the United States. But Republicans and conservative opinion leaders have made liberal horror over Sessions their main talking point in his defense. He’s a nice, kind man, they say, much respected in the Senate these days. And most of all, he’s not a racist.
When the Senate takes up President-elect Donald Trump’s choice to be the nation’s next top law enforcement official in January, allegations of racism that have dogged Sessions for three decades running are certain to be his biggest liability. So he and his allies have mounted an aggressive public relations campaign to refashion Sessions’ image.
The core message: The charges that sank Sessions’ bid to become a federal judge in 1986 don’t represent who Sessions is now, or even who he was at the time. Delivering it is a lineup of prominent black leaders and others with personal ties to Sessions enlisted by Trump’s transition team.
Sessions supporters think it will be enough to count on Senate deference to a colleague and supply evidence of racial evenhandedness sufficient to clear the very low bar of establishing that the man doesn’t have white robes in his closet. They may be right.
But not satisfied with this relatively safe strategy, some conservatives have appropriated the Sessions confirmation cause into their broader effort to delegitimize anti-racism as an acceptable tactic in American politics. Characteristically, conservative firebrand (and African-American) Ken Blackwell has taken this tack to grotesque lengths in a Washington Timesop-ed that compares Sessions to lynching victims.
Jeff Sessions will be the next attorney general despite the national media’s anti-white, anti-southern racism, and the country will be better for it.
What can liberals do to counter this bizarre whitewashing campaign and give opponents of Sessions’s confirmation a clearer and more compelling case? Deval Patrick may have provided a smart path.
Patrick, who was an NAACP attorney before he became assistant attorney general for civil rights under Bill Clinton (and later a two-term governor of Massachusetts), has penned a letter to the Judiciary Committee that cuts through all the she-said-he-said about Sessions’s subjective racial views and focuses on one objective aspect of the Alabaman’s record that ought to be disqualifying: his 1985 “voter fraud” prosecution of the “Perry County Three,” volunteer activists trying to help old and frail African-Americans vote in a jurisdiction near the voting-rights mecca of Selma.
Sessions lost that case on trial, but as Patrick puts it, it should not have been tried at all, and illustrates a prosecutor’s use of his discretion in a bad cause brought maliciously.
Pursuing that case was an act of extraordinary quasi-judicial activism. Voting is a civic and even sacred right in our country. Extending it to black voters in the Alabama Black Belt was a significant national challenge. Making access real—through the Voting Rights Act and countless acts of civil disobedience—was an equally significant national triumph … To use prosecutorial discretion to attempt to criminalize voter assistance is wrong and should be disqualifying for any aspirant to the Nation’s highest law enforcement post …
For 30 years I have viewed the prosecution of the Perry County Three as a cautionary tale. I believe it demonstrates what can happen when prosecutorial discretion is unchecked, when regard for facts is secondary to political objectives. What can happen is that the rule of law is imperiled. In a republic based on law, this is not the kind of risk any of us should accept in an attorney general.
The basic point is that whatever Jeff Sessions’s private feelings about race, he stood at the very epicenter of the voting-rights struggle, whose history he had every reason to understand intimately since it was all but in his back yard, and he placed the considerable resources of the federal government on the wrong (historically and morally, as well as legally) side. Perhaps you need to be a former prosecutor like Patrick to fully understand the incredible power to do good and evil that an attorney general has entirely within her or his control. But the fact remains that we have every reason to suspect Sessions will change the deployment of that power from a posture of protecting powerless victims of discrimination to pursuing them with the hounds of justice because he’s done it before. Aside from civil rights and voting-rights causes, others traditionally within the protective arms of the Justice Department could suddenly find themselves staring down the barrel of prosecutorial hostility. These will include women seeking to assert their reproductive rights, LGBTQ folk fighting discrimination, nonviolent drug offenders seeking relief from long prison sentences, and undocumented immigrants who have otherwise played by the rules.
I don’t know that it would derail Sessions’s confirmation if all his critics pounded away on this crucial point, but there is no question it would lift the discussions from murky and ultimately impossible-to-resolve questions about what Sessions believes in his heart of hearts.
Beyond the focus of the case against Sessions, his opponents would be wise to counter the claim that they are bigoted against Southern white men by enlisting some well-known Southern white men who chose differently in the struggle for civil and voting rights. Indeed, if Bill Clinton is looking for a service to his country amidst the ashes of his wife’s presidential candidacy, testimony before the Judiciary Committee about the situation in the South in the 1980s, when he was governor of Arkansas and Sessions was prosecuting voting-rights activists, might raise the visibility of the issue significantly.
Circus of Liars: How Trump and GOP Are Twisted Into Pretzels Over Putin Hack
Sunday, 08 January 2017 13:47
Cole writes: "The US NSA hacked the whole world for many years until Ed Snowden blew the whistle on them. And that was when the full extent of Clapper's mendaciousness became clear. He should have been held in contempt of Congress. He should have been fired. But no. He got away with it."
Director of National Intelligence James Clapper Jr. takes his seat to testify before a Senate Armed Services Committee hearing on 'Foreign Cyber Threats to the United States' on Capitol Hill, Jan. 5, 2017. (photo: Kevin Lamarque/Reuters)
Circus of Liars: How Trump and GOP Are Twisted Into Pretzels Over Putin Hack
By Juan Cole, Informed Comment
08 January 17
onald J. Trump has picked another fight with the elders of his own Republican Party, over whether Russia engaged in hacking aimed at influencing the US election. Trump has maintained that it is impossible to trace hacking attempts, that it isn’t clear who was behind them, and that he knows a lot about hacking and knows things about these incidents that the rest of us do not know, which he would reveal last Tuesday or Wednesday (he didn’t).
At one point, in Trump’s assault on the case for Russian hacking being presented by the CIA, he cited statements of Julian Assange of Wikileaks:
Julian Assange said "a 14 year old could have hacked Podesta" - why was DNC so careless? Also said Russians did not give him the info!
This reference to Assange, who published Chelsea Manning’s copied State Department cables and who published emails of the Democratic National Committee and the Clinton campaign, infuriated official Washington, who would love to render Assange from the Ecuadoran embassy in London and execute him by firing squad.
At today’s Senate hearings on the Russian hacking, Sen. John McCain asked Director of National Intelligence James Clapper whether Assange has any credibility. Clapper replied by smearing Assange with reference to the complicated and obscure Swedish sex charges against him, which actually do not speak to Assange’s credibility on whether the Russians passed him hacked emails. This ad hominem logical fallacy is typical of the sneaky and duplicitous way Clapper operates.
McCain also accused Assange of putting the lives of US intelligence professionals and their assets in danger. But McCain did not move to impeach former Bush vice president Dick Cheney, who outed CIA field officer Valerie Plame to punish her for her husband’s having revealed the emptiness of the WMD case for the Bush-Cheney illegal invasion and occupation of Iraq.
Trump was wounded by the charges that he was supporting Assange, and replied, essentially, that retweets are not endorsements.
The dishonest media likes saying that I am in Agreement with Julian Assange - wrong. I simply state what he states, it is for the people....
All twitter users consider such hedging to be disingenuous; why retweet something if you deeply disagree with it?
The entire circus was marked by outlandish self-contradiction and clownish hypocrisy.
For instance, Sen. McCain and other national security Republicans have a longstanding animus against the Putin government and so are eager to accept the Clapper case that Russia attempted to interfere in the US election.
But McCain and the other hawkish Republicans don’t want to follow their position to its logical conclusion, which is that Putin intervened to give us a Trump presidency.
If Russia did some hacking and leaking to hurt the Democrats, but did not succeed in having a big impact on the election outcome, then why is the issue so important? The Russians were ineffectual.
As for foreign hacking and spying on the US election, James Clapper for a long time was personally listening into German Chancellor Angela Merkel’s private cell phone.
Moreover, Clapper was listening in to millions Americans on American soil without a warrant, a gross violation of the fourth Amendment of the Constitution, which promises us privacy from government prying with regard to our mail and personal effects unless law enforcement can convince a judge that we are engaged in a specified crime. For all we know, US officials privy to this illegal form of wiretapping could have used the information for insider trading or self-aggrandizement or to smear politicians they didn’t like or even to affect the outcome of elections. There isn’t really any oversight over this unconstitutional activity of the Federal government, and even sitting senators who knew about it such as Ron Wyden were afraid to tell the public lest they be arrested for revealing classified information (almost everything in Washington is classified as soon as it is written down).
When Clapper was asked in Senate testimony whether US intelligence was spying on the American people, he denied it. “No,” he said.
It was the lie of our new century, the Big Lie, the ultimate Whopper.
The US NSA hacked the whole world for many years until Ed Snowden blew the whistle on them. And that was when the full extent of Clapper’s mendaciousness became clear. He should have been held in contempt of Congress. He should have been fired. But no. He got away with it.
It is extremely unclear why anyone should believe anything this proven and professional liar says.
Then Sen. Chuck Schumer, the Senate minority leader, was asked about Trump’s tweet questioning the Russia hacking narrative. He replied that Trump was unwise to take on the intelligence community, since they had six ways to Sunday to get back at you.
So Schumer seems to have been celebrating that we are no longer a democracy, but that even an elected president has to defer to the intelligence establishment in Washington or else must fear that they will play dirty tricks on him and undermine him.
Shouldn’t the Democratic Party senate minority leader be standing for democratic values, not advising the president to shut up if he knows what’s good for him?
So to conclude, this is a sorry spectacle. Yes, Putin is a thug who should not have unilaterally annexed Crimea, and so created a European crisis that has yet to be resolved. But yes, the US has acted thuggishly– the unprovoked and monstrous invasion of Iraq is a recent example– and US aggressiveness toward Moscow after the collapse of the Soviet Union bears some of the blame for Russia’s bullying insecurity. And yes, Russia likely engaged in hacking during the US election and hoped to tilt the playing field toward Trump; but they likely failed to have any significant effect on the outcome. And yes, Clapper and other US intelligence officials have hacked everybody and his brother both abroad and inside the US, so they are hardly morally superior to Putin.
Now we have a food fight full of ignorance and hypocrisy or both, in which the Washington Establishment professes itself shocked, shocked that any hacking of one country by another could have gone on. Trump has continued his creepy bromance with the Kremlin and wants to get his information from any source that agrees with his prejudices. The Democrats have taken advantage of the story to paint Trump as a Manchurian candidate, and some of them seem to delight in the idea that Trump may provoke the CIA to do to him what Oliver Stone thinks it did to JFK.
Labor Opponents Already Have the Next 'Friedrichs' SCOTUS Case Ready to Go Under Trump
Sunday, 08 January 2017 13:41
Marvit writes: "The Supreme Court gave unions an unexpected victory last year when it issued a decision in a case that had threatened to take away the right of public sector unions to collect dues from workers they represent. That win may be short-lived."
As Democrats and the labor movement prepare for a possible fight over Trump's imminent appointment to the Supreme Court, they should recognize that several major labor cases, brought by some of labor's most persistent enemies, are waiting in the wings. (photo: Mark Wilson/Getty Images)
Labor Opponents Already Have the Next 'Friedrichs' SCOTUS Case Ready to Go Under Trump
By Moshe Z. Marvit, In These Times
08 January 17
he Supreme Court gave unions an unexpected victory last year when it issued a decision in a case that had threatened to take away the right of public sector unions to collect dues from workers they represent. That win may be short-lived.
Friedrichs v. California Teachers Association was meant to be the capstone in decades of cases that sought to have the courts determine that fair-share fees for public sector workers are unconstitutional. Fair-share fees, or agency fees, require workers represented by a union to pay the portion of fees that covers collective bargaining. They seek to balance the worker’s right to dissent from the union by relinquishing membership and not paying for activities that aren’t related to collective bargaining, with the union’s right to avoid free riders and not be forced to represent a worker who contributes nothing.
The Supreme Court, largely through decisions written by Justice Samuel Alito, had indicated that its 1977 case that allowed for fair-share fees in the public sector was ripe for a rare overturning by the Court. It all but invited a challenge. Several cases were in the pipeline, but Friedrichs took the unusual approach of conceding before each lower court that it should be dismissed so that it could move quickly to the Supreme Court. Friedrichs faced a hostile oral argument before a conservative majority; unions braced for the worst. Then, as the Court was drafting its opinion, Justice Antonin Scalia died, and with him, so did Friedrichs. The Supreme Court issued a tied 4-4 decision affirming the lower court in March.
However, there is another case in the pipeline that was stayed pending the outcome of Friedrichs. That case, which began as Rauner v. AFSCME, was originally brought by the ultra-wealthy Republican Illinois Gov. Bruce Rauner, who—shortly after taking office—issued an executive order placing all fair-share fees in an escrow account, rather than turning them over to unions. But Rauner screwed up a basic part of the case because he didn’t have standing to bring the case.
A federal judge wrote that Rauner “has no personal interest at stake. He is not subject to the fair share fees requirement. Instead, he essentially claims to have a duty to protect the First Amendment rights of all public employees in the state … In effect, he seeks to represent the non-member employees subject to the fair share provisions of the collective bargaining agreements. He has no standing to do so. They must do it on their own.”
To fix the problem, employees filed as intervenors (“undoubtedly with the Governor’s blessing,” as the judge noted), with the backing of the National Right to Work Legal Defense Foundation and the Liberty Justice Center.
Janus v. AFSCME, named after one of the workers, is pursuing the same strategy as Friedrichs in trying to get to the Supreme Court quickly. The Janus plaintiffs filed their second amended complaint in July, stating that the Supreme Court’s 1977 Abood v. Detroit Board of Education case, which permitted fair-share fees, remains good law, and all but invited the District Court in the Northern District of Illinois to dismiss their complaint. The District Court did so, and in their appeal to the Seventh Circuit Court of Appeals, the plaintiffs similarly state that their case must be dismissed. The goal, of course, is to get the case in front of the Supreme Court just as a Donald Trump appointee to the Court is seated.
Seattle University School of Law professor Charlotte Garden explains that this strategy also “allows the case to go up without a factual record. This means that there is no record that the unions can point the justices to in order to show the importance of agency fees.”
In Friedrichs, Justices Ruth Ginsburg and Stephen Breyer tried to give the union’s attorney the opportunity to state what he would have put in the record if he had had the opportunity to do so. But, as Garden explains, “being asked to make a proffer before the Supreme Court is tricky without the ability to engage in discovery.”
The Janus case is almost identical to the Friedrichs case in that both are premised on the idea that there is no line in the public sector between political and non-political activity. Conservatives justices have firmly embraced this rational, as was evident during the Friedrichs oral argument when Chief Justice John Roberts challenged California’s attorney to give his “best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question.” The attorney responded that mileage reimbursement rates were such an example. Roberts shot back, “That’s money. That’s how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money.”
If everything that a public sector union does is political, then it is a much shorter line to find that a worker should not have to pay any part of the costs of collective bargaining. This would be a very worrisome conclusion for unions, which must do what they can now to stop such an outcome from happening.
As Democrats and the labor movement prepare for a possible fight over Trump’s imminent appointment to the Supreme Court, they should recognize that several major labor cases, brought by some of labor’s most persistent enemies, are waiting in the wings. Senators should question nominees about their view of Abood and other Supreme Court precedents that protect public employees’ labor rights. And if labor has any sway within the Democratic Party, it should make it clear that these issues should be disqualifying for any new appointment to the Court.
FOCUS: Decoding McCain's Hearing on Trump vs. Spies
Sunday, 08 January 2017 13:18
Davidson writes: "Rocks, pebbles, scissors, tweets: coming at us, in all directions. This is a hearing that was provoked as much, or more, by Trump's disdain for facts as it was by the hacking itself. And yet it wasn't much of a sober examination of cybersecurity, or even of what exactly happened during the Presidential election."
James Clapper, the Director of National Intelligence, testifies before the Senate Armed Services Committee on Thursday, in Washington. (photo: Jim Watson/AFP/Getty Images)
Decoding McCain's Hearing on Trump vs. Spies
By Amy Davidson, The New Yorker
08 January 17
n Thursday morning, Senator John McCain, of Arizona, convened a hearing of the Senate Armed Services Committee on the subject of cybersecurity, “in the aftermath of an unprecedented attack on our democracy.” By that, McCain meant, mostly, the theft and release of e-mails belonging to the Democratic National Committee and to John Podesta, Hillary Clinton’s campaign chairman, which the American intelligence community believes to have been the work of hackers connected to the Russian government. But a lot of the senators had more on their mind. The main witnesses, James Clapper, the director of National Intelligence, and Admiral Mike Rogers, the head of the National Security Agency, were asked if Donald Trump had demoralized spies by casting doubt on their hacking assessment (possibly, but they hadn’t taken a poll); if the WikiLeaks founder, Julian Assange, had any credibility (neither thought so); and if anyone really listened to the radio anymore (yes). That last question came from Senator Lindsey Graham, of South Carolina, who thought that the United States was not on top of the information war against Russia. Graham judged a cautionary note that Clapper had offered about espionage and people who “live in glass houses” inadequate to the moment. “I think what Obama did was throw a pebble. I’m ready to throw a rock,” Graham said. He glanced around the chamber with a look of cold eagerness, and added, “So to those of you who want to throw rocks, you’re going to get a chance here soon.”
Rocks, pebbles, scissors, tweets: coming at us, in all directions. This is a hearing that was provoked as much, or more, by Trump’s disdain for facts as it was by the hacking itself. And yet it wasn’t much of a sober examination of cybersecurity, or even of what exactly happened during the Presidential election. An intelligence report on the subject is still in the works (it is due Friday, with the public getting some version of it next week), and so Clapper and Rogers repeatedly demurred when asked for specifics. Clapper was clear, though, that he and his colleagues believed that the Russians had been up to no good. He said that when the report came out it would suggest a motive behind the hacking—“actually, more than one motive.” There were certainly multiple motives behind the hearing, most of them partisan. McCain hopped between a Cold War antipathy for the Russians and his own complex relationship with his party’s President-elect. McCain had endorsed Trump, then unendorsed him, and now seems to want to work with him, even though he has been dismissive of the entire premise of the hearings. McCain, after his suggestion that the Russian role was historic in nature, quickly added that the point of the hearings was “not to question the results of the election.” In one of his first questions to Clapper, McCain said that if the Russians had been successful “in changing the results of an election, which none of us believe they were”—he drew that word out, into what sounded like a cross between a purr and a warning, and then continued—“that would have to constitute an attack on the United States of America because of the effects if they had succeeded, would you agree with that?”
Clapper responded hesitantly at first, addressing what McCain had taken as a given—that the Russians had failed. There had not been changes in “tallies or anything of that sort,” he said. That is, no hacking of Election Day. As for the rest, “certainly the intelligence community can’t gauge the impact it had on choices the electorate made,” Clapper said. When McCain nudged him back to his main question, Clapper said, “Whether or not that constitutes an act of war, I think, is a very heavy policy call that I don’t believe the intelligence community can make, but it certainly would carry, in my view, great gravity.”
Later in the hearing, Clapper said that his sense of concern, both as the director of National Intelligence and as “a citizen,” was not confined to cyber crimes but to “a multifaceted campaign that the Russians mounted,” which involved “disparaging our system, our alleged hypocrisy about human rights, et cetera, et cetera.” He added, “All of these other modes—whether it is RT”—the Russian English-language television news network—“use of social media, fake news—they exercised all of those capabilities in addition to the hacking.” The quality of the stories that come from these sources is an issue for citizens, but Clapper’s formulation should raise some notes of caution about when and whether it is, indeed, a matter for the head of an American intelligence agency. Do complaints about American hypocrisy really belong in the same category as “fake news,” let alone hacking? When does a complaint become a “capability”?
It was the Democrats, meanwhile, who were most concerned with expressing outrage that the President-elect, or really anyone, would doubt the American intelligence community. “Who actually is the benefactor of someone who is about to become Commander-in-Chief trashing the intelligence community?” Senator Claire McCaskill, of Missouri, demanded. (When Clapper didn’t come up with the names, she supplied them: “Iran, North Korea, China, Russia, and ISIS.”) She added, “There would be howls—and, mark my words, if the roles were reversed there would be howls from the Republican side of the aisle.” That is, without a doubt, correct, and another reminder of how the G.O.P. has abased itself in the presence of Donald Trump. And yet the Democrats’ passion on this point seemed, at times, to be too much even for Clapper, who noted that the agencies weren’t “perfect” and that his own “fingerprints” had been on the broken assessment that Iraq had an arsenal of weapons of mass destruction, laying the groundwork for a disastrous invasion. He did say that he thought that they’d improved since then. (No one seemed interested in reminding Clapper, who is retiring in a few weeks, that a lie he had told the Senate about the N.S.A.’s activities had played a role in the Edward Snowden affair, as my colleague Ryan Lizza has reported.)
The hacking of the D.N.C. exposed risks to our electoral system; the way that all sides have responded to it has not revealed great reservoirs of strength. The Democrats are rightly dismayed by Trump’s reckless indifference, but they have not found their voice on the issue—that is, a way to integrate it into a critique of Trumpism, rather than of Trump’s inconsistencies. (As my colleague John Cassidy wrote today, they may be doing better with Obamacare.) Some “establishment” Republicans, like McCain and Graham, seem only ready to take on Trump when they view him as insufficiently hawkish. Graham used the hearing to warn Trump that if at some point he wanted to take military action against someone he might find himself needing to point to the intelligence community’s findings to justify that action to the American people, and so he shouldn’t mock them now. If these Republicans are serious about making sure that their President stays in the neighborhood of the truth—and about pushing back against his demagoguery—that won’t be enough.
One of the more sensible comments came from Senator Angus King, the independent from Maine, who recalled a trip to the Baltic states, during which he had asked local officials how they dealt with what has, for years, been a barrage of fake news and electoral interference. He had been told of various countermeasures, but the defense that worked best, ultimately, was “for our public to know what’s going on so they can take it with a grain of salt. . . . Their people now say, ‘Oh yeah, that’s just the Russians.’ ” King added, “We need to have our people understand when they’re being manipulated.” Under the Trump Administration, that may count as a basic survival skill. It won’t just be about what’s coming from the Russians. They are not the only ones controlling Twitter accounts. People in White Houses throw a lot of rocks, too.
Toobin writes: "President-elect Donald Trump will soon announce his nominee to replace Antonin Scalia on the Supreme Court. Once he does, we'll know within just a few hours whether there is any chance that the Senate will reject his choice."
Senator Edward Kennedy with other members of the Senate Judiciary Committee, including Joe Biden, in 1987, prior to voting against recommending the nomination of Judge Robert Bork for the Supreme Court. (photo: John Duricka/AP)
How to Stop a Trump Supreme Court Nominee
By Jeffrey Toobin, The New Yorker
08 January 17
resident-elect Donald Trump will soon announce his nominee to replace Antonin Scalia on the Supreme Court. Once he does, we’ll know within just a few hours whether there is any chance that the Senate will reject his choice. That’s because the politics of Supreme Court appointments operates at the speed of the modern news media, not at the stately pace of the Justices’ deliberations.
Two examples—one recent, one practically ancient—prove the point. About an hour after the announcement of Scalia’s death, on February 13th of last year, Senator Mitch McConnell, the Republican Majority Leader, said that the seat would be held open for the next President to fill. Even though there were more than eleven months remaining in President Obama’s term, McConnell said the Senate would neither convene hearings nor allow a vote on anyone Obama nominated, no matter how well qualified. McConnell stuck to that plan, and Judge Merrick Garland, Obama’s admirable, otherwise uncontroversial choice, spent months in demeaning limbo as his chances for promotion withered.
On July 1, 1987, President Ronald Reagan nominated Robert Bork to the Court, and moments later Senator Edward Kennedy took to the Senate floor with a scathing denunciation of that choice. In perhaps the most notable floor speech Ted Kennedy gave during his long career in the Senate, he said, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government.” Bork, unlike Garland, did get the chance to make his case at a confirmation hearing, but he never shed Kennedy’s portrayal of him as an extremist. The senator’s speech had mobilized a broad constituency against the nominee, and the Senate ultimately voted him down, by fifty-eight to forty-two.
Both McConnell’s decree and Kennedy’s speech were widely criticized at the time. McConnell was denounced for violating the Senate’s constitutional duty to review a President’s nomination to the Court; Kennedy was excoriated for distorting the record of a distinguished scholar and judge. McConnell and Kennedy, who were political opposites on the issues, responded to the charges in the same way: neither cared. They both recognized the importance of the Supreme Court to the issues that mattered most to them, and they believed that a few harsh words were a small price to pay for the chance to steer the Court in their preferred direction.
McConnell and Kennedy understood something else: speed matters, especially when it comes to Supreme Court nominations. Most Presidents’ choices for the Supreme Court are confirmed, usually without a great deal of controversy. Breaking that pattern requires a major political undertaking. Even back in 1987, Kennedy knew that the conventional wisdom in Washington congealed quickly. If Bork, a judge on the D.C. Circuit and a former Solicitor General and a professor at Yale Law School, was seen as a shoo-in, there would be little chance to build a case against him. Likewise, McConnell knew that he might well lose a debate about the qualifications of the person Obama named to the Court. (Indeed, Garland’s pedigree, which includes two decades on the D.C. Circuit, is impeccable.) So McConnell, with his precipitous vow of no confirmation of anyone, turned the debate away from the merits of any individual to a controversy about the responsibilities of the Senate during an election year. That kind of conversation was sufficiently abstract to avoid generating wide political interest, and, as it turned out, Garland’s nomination was largely forgotten during last year’s campaign.
There is, of course, an even bigger factor in determining whether any nominee is confirmed. When the President’s party controls the Senate (as is now the case), it’s extremely difficult to stop any nomination. The last Republican nominee to fail in a G.O.P. Senate was George W. Bush’s choice of Harriet Miers, in 2005; the last Democratic choice to go down in similar circumstances was Lyndon Johnson’s friend Abe Fortas, whom he nominated as Chief Justice, in 1968. Kennedy had a Democratic-controlled Senate during his crusade against Bork, and McConnell led a majority against Garland, too. But McConnell’s current advantage is modest—just fifty-two seats—and though he has likely allies in Democrats who serve in Republican-leaning states, no confirmation is assured at this point.
Still, Democrats will have to make a fast decision after Trump names his choice. (If they’re smart, they’re making up their minds about various candidates right now.) If they greet Trump’s nomination with politely stern vows of serious consideration and rigorous questioning at a hearing, confirmation will be nearly a certainty. If, instead, the senators break out the incendiary rhetoric of their late colleague from Massachusetts, then the new President may have a fight on his hands. In either case, we’ll know the outcome long before the confirmation votes are counted on the Senate floor.
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ost liberals look at the prospect of Jeff Sessions serving as attorney general and see a waking nightmare. He’s an extremist in a Republican Senate conference that already skews far right. He has been a leader in a backlash against Republican moderation on issues ranging from immigration to crime and drugs to civil liberties. And on voting rights, he embodies the latter-day conservative belief that the only threat to the franchise is its extension to include people previously excluded. That he was for quite a few months the only member of the Senate supporting Donald Trump’s presidential candidacy doesn’t help his reputation outside the GOP, either.
onald J. Trump has picked another fight with the elders of his own Republican Party, over whether Russia engaged in hacking aimed at influencing the US election. Trump has maintained that it is impossible to trace hacking attempts, that it isn’t clear who was behind them, and that he knows a lot about hacking and knows things about these incidents that the rest of us do not know, which he would reveal last Tuesday or Wednesday (he didn’t). 
he Supreme Court gave unions an unexpected victory last year when it issued a decision in a case that had threatened to take away the right of public sector unions to collect dues from workers they represent. That win may be short-lived. 
n Thursday morning, Senator John McCain, of Arizona, convened a hearing of the Senate Armed Services Committee on the subject of cybersecurity, “in the aftermath of an unprecedented attack on our democracy.” By that, McCain meant, mostly, the theft and release of e-mails belonging to the Democratic National Committee and to John Podesta, Hillary Clinton’s campaign chairman, which the American intelligence community believes to have been the work of hackers connected to the Russian government. But a lot of the senators had more on their mind. The main witnesses, James Clapper, the director of National Intelligence, and Admiral Mike Rogers, the head of the National Security Agency, were asked if Donald Trump had demoralized spies by casting doubt on their hacking assessment (possibly, but they hadn’t taken a poll); if the WikiLeaks founder, Julian Assange, had any credibility (neither thought so); and if anyone really listened to the radio anymore (yes). That last question came from Senator Lindsey Graham, of South Carolina, who thought that the United States was not on top of the information war against Russia. Graham judged a cautionary note that Clapper had offered about espionage and people who “live in glass houses” inadequate to the moment. “I think what Obama did was throw a pebble. I’m ready to throw a rock,” Graham said. He glanced around the chamber with a look of cold eagerness, and added, “So to those of you who want to throw rocks, you’re going to get a chance here soon.”
resident-elect Donald Trump will soon announce his nominee to replace Antonin Scalia on the Supreme Court. Once he does, we’ll know within just a few hours whether there is any chance that the Senate will reject his choice. That’s because the politics of Supreme Court appointments operates at the speed of the modern news media, not at the stately pace of the Justices’ deliberations.
