Wednesday, October 14, 2020

Part I

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Joe Biden Is “Not a Fan” of Court Packing? Why the Former Vice President Won’t Give a Clear Answer on the Issue

Well, the show still goes on in Washington, D.C., the Senate confirmation hearings for President Trump’s nominee to the high court, Judge Amy Coney Barrett. We’ve talked about that over the course of the last couple of days, looking at some of the most interesting angles that are being demonstrated in the course of these hearings.

When it comes to yesterday, nothing particularly new or noteworthy. What you saw yesterday was the continued dance, so to speak, of the senators doing what the senators are doing mostly for the television cameras, and also, you had the nominee doing what she has to do, which is to thread a very important needle, speaking directly to the questions asked by members of the Senate, both Republicans, very friendly, and Democrats, rather hostile, while at the same time not violating what basically it comes down to the integrity and ethics of the Supreme Court by stating in advance how she would rule on any question.

By the way, one interesting dynamic of that is this: If indeed for any reason, right or left, Republican, Democratic, whatever, in the course of such a hearing, a nominee should say that he or she would vote a certain way or decide a case in a certain manner in anticipation and in advance, that would be basically a quid pro quo. In other words, “I’ll rule the way you want me to rule, so vote for my nomination to the nation’s highest court.” There’s a very good reason why questions about how a judge would rule in advance are out of line, no matter who’s asking the question, no matter who is the nominee. But at the same time, the questions looking backwards are very germane: “What have you written? What have you said? How have you decided cases in the past?” There was a little bit of that yesterday, but again, mostly it’s all about the future, with the Democrats saying “It’s all about the Affordable Care Act and Roe v. Wade,” and then you have a Republicans saying, “No, it’s all about getting a highly-qualified nominee on the bench and as soon as possible.”

Well, as we’ll be looking more and more at those hearings over the course of the next several days, it’s also interesting to know that some of the issues of the last several days related in a more general way to the court, but more specifically to the 2020 election, they’ve also resurfaced. For example, the Democratic nominee for president, former Vice President Joe Biden, who has refused to answer the question about court-packing, whether or not if indeed he’s elected president, he will support efforts beginning especially in the legislature to try to expand the number of seats on the court in order to appoint more liberal justices, it’s often referred to as “court-packing,” he refused to answer the question, and now on more than one occasion has said that he will not answer the question. He said at one point that he was not going to the question because it would then set up the reality that that’s what the campaign would be about, a stunning admission in itself.

But then in another context, subsequently, he said that he wasn’t going to answer the question until after the election. As I said in a comment after Biden made that statement, it’s the equivalent of a man saying to his bride, “I’ll tell you whether or not I’m going to be faithful, after the wedding.” But what makes this situation even more interesting this week is that on Monday, the former vice president said to a local television station in Ohio that he is “not a fan of court-packing.” Not a fan. What exactly does that mean? Well, we know what a fan is in the sense of someone who is a celebrated supporter, someone who’s excited about the concept. The former vice president said he’s not a fan. Let’s just note that not a fan is not a very good, well, let’s just say constitutional argument. It’s not exactly a yes. It’s not exactly a no. It’s just that I’m not an enthusiastic, public, open, and honest-for-now yes.

Now, it’s likely that the former vice president is under a lot of pressure, surely right now, from both the right and the left. Why from both sides? Well, because a non-answer in this case doesn’t really please anyone except the people who are afraid that he will answer the question, so as you’re thinking about pressure from the right and the left, what’s the pressure coming down to? Well, from conservatives, the pressure is just be honest. Saying that you’re not going to answer the question until after the election is a way of telling the American people, honestly, in advance, that you’re going to embrace such a liberal notion, such a radical notion as it comes to the Constitution. We’re looking at the fact that for over a century-and-a-half, the court has had nine members. At this point, changing that would be radical, indeed, and not only that, intensely political, so from the conservative side, we understand the pressure.

What’s the pressure from the liberal side? Well, that is from the progressive wing of the Democratic Party, increasingly loud and increasingly in control, and that wing wants to hear from the Democratic nominee that he would avidly support an effort to expand the number of seats on the Supreme Court and to fill those seats with liberal jurists if he had the opportunity, so the right and the left equally displeased for equal and opposite reasons coming down to the same non-answer, but it’s unlikely that the former vice president’s quasi-answer on Monday is going to please anyone any more than saying, “I’ll tell you the answer to that question after you elect me.”

Jonah Goldberg, writing in his column in The Los Angeles Times raises the question as to why the former vice-president and current Democratic presidential nominee told us exactly that he wasn’t going to answer the question and why. It was because A, it would be what everyone would talk about, which would mean some voters would be alienated, and B, it was an answer he wasn’t going to give until after the election. Now, Jonah Goldberg says, and this is rather humorous, he says that “once again, this demonstrates a certain fact of politics, which is that politicians sometimes accidentally tell the truth.”

As Goldberg writes, “I suspect this began as a kind of gaff in which, as Michael Kinsley famously said, ‘A politician accidentally tells the truth.’ I think Biden made the mistake,” writes Goldberg, “of explaining his don’t-be-controversial strategy rather than merely executing it.” Now, this gaff of accidentally telling the truth is actually bipartisan. As we observe politics, sometimes Republicans do it, sometimes Democrats do it, but rarely is it done on a question of such importance and done in such a way that it’s going to be echoed over and over again, but there’s something else here.

Rarely is it done without some attempt to clean it up, and maybe that’s what the former vice president was doing, saying that he’s not a fan of court-packing, but that’s not actually either cleaning up nor is it going to be accepted as cleaning up. Actually, the full statement from Biden is this: “I’ve already spoken. I’m not a fan of court-packing, but I don’t want to get off on that whole issue. I want to keep focused.” Now, what we see here is an effort to try to move on. Maybe it will work. Maybe it won’t. It shouldn’t.

Part II

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House Democrats Introduce Legislation to Create Process to Examine Presidential Sanity: When Something “Isn’t about the Election,” It’s Always about the Election

But next, as we’re talking about big issues and the presidency, we’re thinking about history, the present, and the future, I want to turn to another development, and that is the fact that a congressman, a Democratic member of the House from the state of Maryland is now initiating legislation that the Speaker of the House, Nancy Pelosi, is allowing to go forward that would, at least as proposed, create what amounts to a tribunal to be used to judge the sanity of an elected president of the United States, the fitness of the president for office. Now, this goes back to the 25th Amendment to the United States Constitution, which was adopted in the 1960s in the aftermath of many constitutional questions and the agony of the assassination of President John F. Kennedy, leaving a succession issue still unclarified in the US Constitution that goes back to the very first vice president who became president upon the death of the incumbent. That was John Tyler in the 19th century.

But one of the big questions, and we’ve talked about this even recently on the briefing was that there was no provision whatsoever for replacing a vice president of the United States between the elections that come every four years. The 25th Amendment cleaned that up and the 25th Amendment was also adopted in good faith, massive bipartisan support in an effort to acknowledge that there could be situations in which a president was disabled and unable, thus, to fulfill the responsibilities of the office, absolutely crucial. That takes us back to a president, such as Woodrow Wilson in the beginning of the 20th century, who was clearly incapacitated for a long period during the end of his presidency in which his second wife basically functioned, in some sense, as the executive officer of the United States government. Not acceptable. The issue needed to be addressed.

It also came up in the 1950s when, as we now know the president of the United States, Dwight Eisenhower, had a much more serious heart attack than the American public was told, even before Eisenhower came up in a huge way with the very precarious health of President Franklin Delano Roosevelt, even as he was elected to an unprecedented fourth term. Remember, he lived just a matter of weeks after his inauguration to that fourth term. As it turns out his health was so bad, he was basically living on what the old adage would call “borrowed time.”

One feature of the 25th Amendment is that it was, as the editors of The Wall Street Journal had pointed out, a serious attempt to manage genuine presidential incapacity. It’s been invoked twice since the 25th Amendment was ratified and it had to do with surgical procedures undertaken by two presidents who in advance had signed over authority for the United States government’s executive branch to their incumbent vice president temporarily. In both cases, happily, the president was almost immediately restored to full authority as soon as the surgical procedure was over.

It’s extremely important, given our constitutional form of government, that the president not be usurped or compromised by any kind of unnecessary usurpation of those powers. It’s a very delicate issue. It goes back to the fact that when President Reagan was shot, and we now know in that assassination attempt, he was fairly close to death, the then vice president of the United States, George H.W. Bush, who became the 41st president of the United States, refused to allow the helicopter transporting him to land on the White House lawn because he knew it was send a signal of presidential authority. He wanted to be very, very careful, respecting President Reagan and respecting the Constitution to send no such signal. He required the helicopter to land at the home of the vice president and then he took a car by motorcade to get to the White House where he was, as we now know, rather desperately needed.

But the point to be made about this particular proposed legislation is the fact that the Speaker of the House is allowing it to go forward just about three weeks before a national election. That is preposterous. It is overtly political. The Speaker said it’s not political, this is simply about allowing Congress to consider how it should best fulfill its responsibility, but actually Congress, has very little responsibility, if any, even within the provisions of the 25th amendment. The editors of The Wall Street Journal refer to this as “Pelosi’s insanity plea,” writing, “You might think the Democrats procedural extremism to out President Trump would wind down as the election gets closer with polls showing a large Joe Biden lead, but that underestimates their fanatic animosity. Now, they’re invoking the constitution 25th Amendment to declare the president non compos mentis,” that is “mentally incompetent.”

Now, they go on to say that “The Speaker of the House has said that’s not what she’s doing. She said it’s not about President Trump.” She also said, as the editors point out 25 days before the election, “It’s not about the election at all,” but here’s what to note if someone says in this capacity, “It’s not about the election at all,” then here’s what you know: It’s about the election entirely.

Speaking of the proposal legislation, by the way, the editors write “We’re tempted to ignore this idea as insane, but you have to inspect the details to see just how nuts it is.” Let me pause here. You don’t normally see the editors of the staid establishment Wall Street Journal writing with this kind of passion. That tells you something. The editors continue, “Mr. Raskin’s legislation is based on section four of the 25th Amendment, which provides that the vice president and a majority of the president’s cabinet, or of such other body as Congress may by law provide can declare the president is ‘unable to discharge the powers and duties of his office.'”

The editors say the president is then temporarily stripped of his powers pending congressional intervention. They then continue: “Mr. Raskin’s trick is to create a bipartisan 16-member committee for declaring the president incapacitated. Half of the members would be appointed by Democratic and half by Republican congressional leadership. Eight would be doctors, including four psychiatrists and another eight would be former high-ranking executive branch officers.”

Yes, indeed. It is hard to imagine this is real, but we’re not making it up. This is now legislation that will at least be considered by the United States House of Representatives. Yes, it did require a team of no less than four psychiatrists, but they’re going to be vastly outnumbered by members of Congress. If a majority of this tribunal should decide that there is reason for the president to be examined, they would “carry out a medical examination of the president.” No kidding. Then the editors write: “Why not cut the bureaucratic pretense and simply call this committee ‘The Presidential Sanity Tribunal?'”

Well, that’s about enough on that issue. It wouldn’t be taken seriously if it were not legislation that is now moving forward, and the thing to note is it’s moving forward right now, less than a month before a presidential election. As I said earlier, when a politician says under this condition, “This is not what it’s about,” this is what it’s about. And now this is what it’s about in a whole new way.

The legislation probably isn’t going to get too far, even in the Democratic House of Representatives, and it’s likely that President Trump’s not the only person who might be, let’s just say, irritated by this legislation. What about the Democratic nominee for president, Joe Biden? As the editors of The Wall Street Journal point out, he might have more to worry about from members of his own party than even President Trump.

Part III

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What Kind of Government Does the United States Have? There’s a Distinction Between Direct Democracy and a Constitutional Republic . . . And It Matters

But now, as we’re thinking about what kind of country we are, we turn to a very different issue, and this is a controversy that was sparked by a comment made on social media by a United States Senator, in this case, Utah Republican Senator Mike Lee. As he was responding to the vice presidential debate and to a comment made by Democratic vice presidential nominee, Kamala Harris, Mike Lee responded, “We’re not a democracy. We are a constitutional republic and it matters.” As Glenn Thrush reported for The New York Times, “Senator Mike Lee, Republican of Utah, accused Democrats of pursuing a vision of rank democracy at odds with safeguarding personal liberty,” in their words, “articulating a philosophy Democrats see as underpinning a conservative push to restrict voting rights and environmental regulations.”

Now, that’s an example of the lead of an article vastly outrunning the actual subject matter of the story. There’s no particular evidence that all of this is tied together, except perhaps in the minds of The New York Times, but here is what is important. Senator Mike Lee made the argument that the United States is not a democracy, it is a constitutional republic. The New York Times points out that he is not only a United States Senator, he is also a son of President Reagan’s solicitor general, Rex E. Lee. He’s also a former clerk to Supreme Court Justice Samuel Alito. In other words, he knows the Constitution. He is himself very devoted to constitutional law. Why would he make the point that America is not a democracy in its form of government, but rather a constitutional republic? Why would the left be agitated by his clarification of the vocabulary and what should conservatives, what should Americans think about this as they answer the question what kind of government do we have? Is it a democracy or is it a constitutional republic? Does it make a difference? Is there a difference?

In a longer statement, after saying “We are not a democracy,” Senator Lee said, “The word ‘democracy’ appears nowhere in the Constitution, perhaps because our form of government is not a democracy. It’s a constitutional republic. To me, it matters. It should matter to anyone who worries about the excessive accumulation of power in the hands of a few.” He also went on to say, “Democracy isn’t the objective. Liberty, peace, and prosperity are. We want the human condition to flourish. Rank democracy can thwart that.”

Now, why would a United States senator say that? Well, first of all, because what he said is actually true. It’s also important. I’ve talked about it before on The Briefing, but more than that, I am rather careful to use the language of our constitutional self-government, our Republican form of constitutional self-government, speaking also of the United States as a constitutional Republic, but at times, it’s not wrong to use the word “democracy.” We’re going to think about why it could be wrong and in other situations would not be wrong.

First of all, what is a democracy? Well, there could be several meanings, but there is one major meaning, and that is self-government, some form of self-government in which citizens have a vote, a procedural democracy in which you have elections, you have elected officials, you have some form of constitutional or chartered government. Citizens are understood to have certain rights. A “demos” means a “rule of the people,” but behind that, of course, is the reality that in ancient Greek philosophy and in the origin of the word “democracy,” it did mean simply “rule of the people,” and that could mean simply a majoritarian rule of those who speak as the people. It could mean having a referendum on every question. It could mean, as the founders were quite concerned, it might mean mob rule.

The founders of the United States government did not want mob rule, emphatically not. They wanted liberty. They also did not want a direct democracy. The American people don’t show up all 330-some-odd-million of us in Washington, D.C. to decide what the laws are. We don’t all sit on the United States Supreme Court. Perhaps you’ve noticed that. We have instead agreed to a representative democracy. We elect representatives who make the laws. We have a vote in voting in the process that will produce a president of the United States, and through both of those processes, we basically cover what voters can do in participating in the appointment of judges who will sit on the nation’s federal courts, the nation’s highest courts, but for that matter, it’s also local.

When you look at representative democracy, you see it in the United States all the way from our federal government down to the states, down to counties, down to cities. Not every single one of us is mayor. But there’s also a particular historical origin for this distinction in modern American history, and that goes back particularly to the 1950s and the 1960s. It goes back, in many ways, to the rise of the organized conservative movement as a political movement in the United States, and it goes back to some who wanted to make the argument that the United States is not a direct democracy, that mob rule is the essence of a direct democracy, but instead, we are a constitutional republic, and as Senator Lee pointed out, those making that argument had on their side the fact that the Constitution never even uses the word “democracy,” nor do most of the founding documents of the United States. There’s much conversation about a constitutional form of self-government. The United States is a republic, a constitutional republic.

But since that argument first emerged in modern American politics, not even most conservatives seem to know much of what is at stake, but I’ll say on behalf of Senator Lee, he is right. It’s not for nothing. He was clerk to Samuel Alito, justice of the Supreme Court. It’s not for nothing. He grew up in the home of a solicitor general of the United States. That’s the official attorney on behalf of the executive branch and the government, the solicitor general. He understands the Constitution. We are a constitutional republic. We are not, classically speaking, a democracy.

But I said earlier, there’s a sense in which we are. What’s that sense? Well, it comes down to this: If you think of the major clash of political ideas in the modern world, and in particular, just, say, the 20th century, a clash between totalitarianism and self-government and liberty, well, what you have has been summarized as a clash between despotism and democracy, and that’s not wrong. In that sense, America is clearly put in the democratic column. If you’re going to do some kind of map of the world, in which you look at the nations that are ruled by a totalitarian regime, and those that are democratic, to use the adjective, well, you would no doubt rightly put the United States right in the heart of the democratic nations.

The word “democracy” is an honored word in the United States. It’s the name of one of our major political parties, and for that matter, just about every single American president has used either the word “democracy” or “Democratic,” and most of them over and over again. Whether conservative or liberal, Republican or Democrat, well, the word “democracy” is a cherished American word, but not because we are a classic democracy, a direct democracy. We’re not. We’re a constitutional republic, and yes, it does make a difference.

But it also gets to something of more basic worldview importance, and that’s this: When you look at a constitutional republic, the point is it is actually bounded by, governed by the Constitution. That’s a very important argument. Christians understand that our Constitution, it’s division into branches of government, it’s division of powers, avoiding concentration of power at any one source, it’s orderliness, it’s protection of what is called “ordered liberty” is deeply rooted in our commitment to human flourishing, our understanding of the reality of sin, and our understanding of the achievement of any kind of civilizational government like this.

But finally, on this issue, it’s also interesting to note how language functions, even in less obvious ways. For one thing, you have a dismissal of what Senator Lee called “rank democracy.” Now, there are many people that don’t think about the fact that sometimes the word “rank,” which is most often a noun or a verb, as in ranks of military officers, or how to rank teams according to their ability, the fact is it is also an adjective and it can mean to stink, but it’s unlikely that’s what Senator Lee meant by “rank democracy.” It also has another meaning is adjective and that is outright, undiluted, and in this case, that’s almost assuredly what he meant: outright democracy. Direct democracy, mob rule is not what our framers and founders envisioned. In that sense, I guess it’s important to say that Senator Lee was not so much saying that direct democracy stinks, but rather that it doesn’t work.