Moving Beyond the Bad Faith Arguments
Moving Beyond the Bad Faith Arguments
The tragic passing of Ruth Bader Ginsburg has ignited yet another episode in a tit-for-tat battle between Republicans and Democrats over election-year nominations that's been raging for thirty years.
So, it turns out the mind-numbing combination of constant study and lack of sleep that goes with the first two exams of the fall semester are not conducive to getting weekly newsletters put out.
But here it is. After pulling myself from the depths of studying the theoretical perspectives on international relations, I managed to throw together a new issue of the Self-Evident newsletter, taking aim at both bad faith arguments on Supreme Court nominations as well as a dirty rotten no good conflagration some are still calling a debate.
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Moving Beyond the Bad Faith Arguments
The year is 1992. The previous year, Thurgood Marshall, an LBJ appointee and the first African American to serve on the Supreme Court, had announced his retirement due to failing health. President George H.W. Bush nominated Clarence Thomas as his replacement. The Democratically-controlled Senate narrowly confirmed Bush’s nomination 52-48.
The following year, rumors began circulating that 83-year-old Harry Blackmun was considering retirement. With the possibility that President Bush might get another Supreme Court nomination, the Junior Senator from Delaware, Joe Biden, took to the Senate floor.
In his speech, Senator Biden made a strong argument before the body of the Senate that, “in the full throes of an election year,” the President should refrain from putting a name forward to fill a Supreme Court vacancy and, if he did, the Senate should ignore the nomination. This speech ultimately spawned what some have termed the Biden Rule, the notion that a Supreme Court vacancy arising during a presidential election year should wait until the next presidential term to be filled.
The Biden Rule is inherently problematic for two primary reasons. Firstly, neither major political party has fully rejected it nor embraced it. Secondly, even among those who claim to adhere to the rule, there are differing interpretations of what the “full throes of an election year” entail.
These problems create a wide area of application for the rule, ultimately allowing the major parties to shift their interpretation of the rule to fit specific circumstances and partisan priorities.
These problems are why, in 2016, Democrats argued for confirming President Obama’s nominee despite it being an election year (they argued he was nominated early enough in the year to avoid the “full throes” of the election) while Republicans argued against consideration of the nominee (they argued the American people deserved to choose who gets to nominate the next justice).
These problems are also why, in 2020, Republicans are arguing for confirming President Trump’s nominee despite it being an election year (they argue the Biden Rule shouldn’t apply if the same party controls the Presidency and the Senate) while Democrats are arguing against consideration of the nominee (they argue that voting has already begun in several states, clearly putting us in the “full throes” of the election).
So, what are my two cents? It’s this: the whole thing is a multi-layered crap-cake of bad faith.
As part of our federal system's checks and balances, the US Senate can confirm or dismiss any judicial appointment as it sees fit. The President has no power to coerce the Senate to consider or confirm his appointments, nor should he. If the Senate decides to engage in what amounts to a legislative veto in an election year, hoping to wait for a nomination from a different President, it shouldn’t be any more controversial than a President who vetoes a piece of legislation in an election year, hoping to wait for legislation from a differently composed Congress.
The ultimate problem with the Biden Rule is that it seeks to assert Congressional authority without reclaiming Congressional supremacy. It provides a framework to oppose a specific president without ultimately challenging the power of the presidency itself. Biden, and others who have used variations of his argument, were not challenging a president’s “right” to have nominations considered and confirmed. They were simply crafting an argument that postponed this “right” to (they hoped) a different president.
Throwing the Biden Rule aside, the confirmation of judicial appointments becomes very simple.
The President maintains the full authority of the office for an entire term, start to finish. A President can engage in all legal acts regardless of whether it’s an election year, or even if it’s the lame-duck session between an election and the start of a new term. If there’s no Biden Rule for presidential pardons or the powers of the Antiquities Act, why should there be for judicial nominations?
Simultaneously, the US Congress perpetually maintains its full authority, including its Constitutionally mandated responsibility to check and balance both the Judicial and Executive branches. If Senators feel they won’t be torn apart by their constituency for confirming a judge in an election year, or even in a lame-duck session, or, conversely, if they want to tell the President and his nominee to take a hike, in any year, they have the full authority to do so.
This Constitutional view allows us to dispense with the inconsistent, hypocritical, and bad-faith arguments put forth by Biden, McConnell, and others like them. Its adoption would allow us to debate each nominee's merits and the merits of time and place with honesty. Any president can nominate a justice to fill a vacancy at any time, period. The Senate can consider and confirm such nominations at their pleasure, period. It’s really that simple.
Those of us who haven’t engaged in the bad faith merry-go-round and try to hold to our principles and operate under a Constitutional view, instead of arbitrary and self-serving “rules,” need not be held to the standards of others’ bad faith.
If the President’s nominee proves to be someone worthy of the office and whose jurisprudence would be in sync with my views and values, I not only encourage my Senators, Mike Lee and Mitt Romney, to consider and confirm this nominee, I expect them to. Neither I nor those elected to represent me should be expected to throw inherent interests or heartfelt ideals on the sword to help keep those who argue in bad faith from appearing to be the hypocrites they are.
The Worst Presidential Debate in History?
There are few things President Trump loves more than to claim historical precedent for something he’s done. Declarations that certain things have been “the greatest in history” or “like we’ve never seen before” seem to accompany just about everything the President says. Last week, he participated in something that most can agree was truly unlike anything we’ve ever seen before.
A week ago, Joe Biden and Donald Trump met in Cleveland for the first presidential debate. Through a combination of rambling rhetoric, constant interruptions, and inconsistent messaging, it ended up being a complete dumpster fire. I think Mark Hamill said it best:
The debate simply wasn’t good for either candidate. Biden seems to have benefited most from the debate, but that’s mostly because of the President’s horrible performance. Biden’s bump in the polls has little to do with what Biden did or said. The spin masters have their jobs to do, but it’s ultimately unbecoming of anyone to spin the debate as a respectable performance by either candidate.
Biden’s mixed messaging, his stammering and at times confused approach, and the times when he sunk to Trump’s level were often equally concerning as Trump’s bluster. We’ve had four years of President Trump. We know exactly who he is. Joe Biden is supposed to be the clear-minded, reasonable adult in the room.
If there was a contrast presented at this first debate between the candidates, it was Trump’s doing. If Biden “won” it’s because the President went so far over the top. Only the most invested partisan can claim Biden effectively rose above the noise and demonstrated any kind of presidential poise.
Biden’s performance was haughty, condescending, and disrespectful. Most of his reactions came off as rehearsed and fake. His head shaking and constant, incredulous smile took me back to the Vice-Presidential debate in 2012. I think most people outside the Trump fan club can agree that Paul Ryan is a far more serious and less extreme politician than Donald Trump, yet Biden’s playbook was much the same eight years ago. He smiled, laughed at, and belittled Paul Ryan in an extremely disgusting display, my memory of which greatly limits my ability to take Biden’s reactions to Trump as wholly genuine.
Telling the President to shut up or calling him the worst president in history not only sullied Biden’s argument that he could bring an end to the dark and disturbing political era we find ourselves in, but it also normalized disrespect for the office of the president on a new and grander stage.
Biden’s low point, for me, was when he dithered into class warfare drivel. Few crises impact everyone across the board as a pandemic can. Painting the pandemic in an us vs. them dynamic and claiming the rich are profiting off of the suffering of the American people is not only off-based but extremely irresponsible in an era of social upheaval and violent clashes in the streets. It was a pitiful attempt to channel his inner-Bernie and maintain a tenuous coalition that includes angry, ultra-progressives that would have preferred Bernie as their candidate.
Ultimately, the debate was the very worst of social media coming alive before our eyes. President Trump played the troll quite well, but Biden played the game with him. If Biden wants to convince people he can actually rise above the ugliness, he would benefit from a far more stoic demeanor in future debates. The smiling, the head shaking, the sighs, the angry quips, the haughty disrespect, the Marxist rhetoric...Biden needs to remember he won the Democratic Primary because he didn’t channel angry Left-wing Twitter.
But there are limits to playing both sides in the way this debate played out. In the end, the debate was Trump’s show. It played out the way it did because of him, period. Biden may not have handled the debate in a satisfying way, but the debate's disgusting nature resulted from how the President conducted himself from beginning to end. Only the most invested partisans can resist acknowledging that the President is a bombastic, blustering bully whose rhetorical skills better belong in a sandbox arguing over toy shovels than in a presidential debate discussing serious issues.
But even if the President’s behavior was calculated or part of some strategy to throw Biden off his game, it was ultimately self-defeating. I disagree with Joe Biden heavily on policy, as do many Americans who are both center-left and center-right. But the President’s constant interruptions failed to give Biden a chance to talk about the things I disagree with him on.
A major aspect of Republican rhetoric against Joe Biden is that he’s “gone mentally” and that he would ultimately be a puppet of the ultra-progressive Left. The best strategy for demonstrating these things would have been to give Biden enough rope to hang himself with. If the President’s strategy hadn’t been to channel his inner annoying orange, the post-debate discussion could have been more about Biden’s difficulty in reaching out to persuadable voters in the middle without shedding his progressive support. Instead, the discussion has been all about Trump’s shameful behavior.
The perfect example of this was the moment when Chris Wallace had Biden in the hot-seat on Portland. Joe Biden had earlier declared, “I am the Democratic Party” in his effort to paint himself as the true leader of the Democratic Agenda, in contrast to the ultra-progressive wing that’s so prominent on Twitter and has engaged in and encourages violence in the streets.
When Chris Wallace pressured him on why he hasn’t shown more leadership when local Democratic leaders fail to curb violent demonstration, Joe Biden was put on the spot. His initial response (“I’m not currently in public office.”) was weak and, frankly, a total copout. What would have come next could have been some serious and haunting rhetorical blunders on the part of Biden, but President Trump refused to let the situation breathe. He interjected immediately, pivoted the conversation to something else, and the moment was lost.
A good debater (which Trump is not) would have let Biden make whatever justifications he was going to try to make before offering an effective counter: “You can’t have it both ways, Joe. Be a leader and corral in the radical elements of your party, or take responsibility for what they’re doing.” Instead, the President fumbled the moment and handed Biden a get-out-of-jail-free card because he couldn’t keep himself from interjecting.
The closest thing to a strategy President Trump seemed to have was doing everything he could to bring to life the strawman image of Joe Biden painted by right-wing commentators. Since this image doesn’t match reality, the President’s goal was apparently to keep Joe Biden from ever finishing a sentence. Anytime Biden began saying anything remotely reasonable, the President panicked and had to jump in and say, “Stop talking, Joe, give me the chance to put the words in your mouth that I want you to say so I can denounce them.”
And even through the bluster and interrupting, much of the President’s narrative fell flat. Biden demonstrated several times throughout the debate his willingness to say the things President Trump said he couldn’t say. He voiced support for law and order, spoke up for decent police officers, denounced violence, and said he didn’t support the Green New Deal (though he stumbled on that last one a little bit).
As I’ve made clear before, I have major qualms with the Democratic Party and their vision for America. But the President and his enablers are desperately trying to paint this election in the Flight 93 terms that convinced a lot of Republicans and conservatives to pull the lever for Donald Trump four years ago. I’m the first to decry attempts to paint Biden as a moderate, classically liberal Democrat (he’s no Jack Kennedy). But neither is he a poster child of the Bernie Bros on the ultra-progressive Left nor is he the calculating and ruthless pragmatist that Hillary Clinton was.
Joe Biden is a political survivor who manages to recreate himself with a changing of the wind. If he wins, his presidency will largely be defined by which party controls the Senate. I am far more concerned with the Pelosis, the Schumers, and the AOCs of the world than I am with Joe Biden.
The Democrats have given Republicans a target-rich environment with over-the-top rhetoric and proposed actions that better reflect the Communist Manifesto than the US Constitution, but Biden isn’t really one of those targets. He’s a Lyndon B. Johnson, not a Franklin D. Roosevelt. He’ll be held captive by the prevailing winds of narrative and political reality, not directing them.
But, setting the President’s strategic blunders aside, the thing that frustrates me the most about Donald Trump is he’s neither what the Republican Party needs nor what conservatism deserves in the political moment we find ourselves in. There’s so much about the Democratic Party and progressive movement that is seriously duplicitous to their rhetoric of constitutional norms and fundamentally distinct from the founding vision that the US Constitution reflects.
Issue by issue, the conservative worldview and approach to governance has outstanding arguments against progressivism, the welfare state, and the growing demand for a further embrace of a mixed economy (democratic socialism). But inasmuch as the President tries to use these arguments, it is as a rich, lifelong Democratic booster who’s playing a role and neither truly believes his arguments nor fully grasps their meaning. He lifts his points from the conservative media he watches obsessively, but when challenged, he can’t explain them, he can’t defend them, and, instead, he just falls back to ad hominem attacks.
The perfect example is the back and forth on healthcare. Joe Biden’s position is essentially doubling down on Obamacare. But Donald Trump is unable to make an argument for the conservative position on healthcare because he isn’t philosophically grounded in what the conservative argument is: free markets and consumer choice. (The Senate could take the ACA, word for word, and re-pass it as Trumpcare, and he would sign it)
If there’s anything that has broken my heart in the last four years, and continues to do so, it’s that there’s no one making a case to the American people on behalf of a truly conservative vision. The discussion was hijacked in 2016 by Donald Trump’s arrival on the scene, and it’s been gone ever since. Worse, there has been missed opportunity after missed opportunity to inject a better dialogue into the national debate over the years.
There’s a growing embrace of nationalism on the Right and socialism on the Left. Both sides are too busy making an argument for their deviations from the founding vision to truly check their opponents' deviations. And no amount of Potemkin arguments by either side's enablers can change the reality that no one is truly standing for constitutional norms.
Specifically, the cancers of national populism and strong-man leadership should be challenged by the full weight of our nation’s legacy, it’s constitutional doctrines, and the truths of the founding vision.
Joe Biden and the Democrats can’t make that argument. They can’t speak to a conservative like me. Joe Biden doesn’t share my worldview, my values, or my ideology. He can’t even begin to understand how to make a conservative case against Trump because he doesn’t understand conservatism. So many Democrats and their enablers think Trumpism is conservatism.
If the debate brought anything into stark relief for me, it’s the absence of a principled conservative candidate in the race. The philosophical gulf is an open maw of empty air.
America is the world’s chief, and longest living, self-governing nation. The office of the presidency has long been considered the leader of the free world. In light of such legacies, last week’s debate was a total embarrassment.
That we've put forward candidates with such a thumbless grip of what makes America truly great and with such an inability to debate and discuss important issues reasonably and with a sense of grace and common decency is truly disheartening and shameful.
Regardless of who wins this fall, this election season is furthering the serious harm being done to the fabric of our republic and the stature it holds in the annals of history and in the eyes of friend and foe alike across the world.
This fall, voting isn't enough. Seek humility, search your soul, engage in fervent prayer. Only God's grace can turn us from this terrible path.
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Okay, so maybe this newsletter hasn’t been coming out every week like I’d hoped, but there’s always the chance it might, right? Seriously though, I’m going to keep working on getting in a better rhythm of things as I juggle my studies with continued writing, so subscribe and keep an eye out for more issues of the Self-Evident newsletter!
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Stay Free My Friends,
-Justin