What Happened in the Senate Yesterday?

Impeachment Image

CNN has a nice overview. Here is a taste:

Republicans have variously argued that Trump did nothing wrong, the Democrats made up impeachment charges or that there was no quid pro quo in Ukraine. But they have apparently been pushed to this final, fallback position in the light of Bolton’s claim in a manuscript for his new book first reported by The New York Times that Trump did indeed tell him to withhold aid to Kiev until it opened probes into his domestic foes.

The legal reasoning from Dershowitz — while outside the mainstream — is giving Republican senators political cover to stand with the President.

The Harvard emeritus professor claimed on the Senate floor that if a politician thinks his reelection is in the national interest, any actions he takes towards that end cannot by definition be impeachable.

“And if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz argued.

Lead House impeachment manager Adam Schiff however argued that such a position suggested an interpretation of the Constitution that held it acceptable for a President to abuse his power and Congress could do nothing about it.

“You can’t do anything about it because if he views it as in his personal interest, that’s just fine. He’s allowed to do it. None of the founders would have accepted that kind of reasoning,” Schiff said, adding later, “In fact, the idea that the core offense that the founders protected against, that core offense is abuse of power, is beyond the reach of Congress through impeachment would have terrified the founders.”

CNN legal expert Carrie Cordero said that Dershowitz’s arguments — that CNN reporters in the chamber said were warmly received by Republican senators — were nonsensical.

“It basically means that a President can do anything and they can make a subjective determination that their reelection is in the national interest,” Cordero said.

“It invites and opens the door to anything that is in the realm of foreign influence.”

Dershowitz reacted angrily later on in the question-and-answer session to suggestions by the House impeachment managers that he was in a slim minority of legal thought, claiming that constitutional experts who did not agree with him treated Republican and Democratic presidents by different legal standards.

“These scholars are influenced by their own bias, by their own politics and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history,” Dershowitz said.

The spectacle of Republicans adopting such arguments is remarkable since the party that once saw itself as the epitome of limited government is coalescing in an effort to broaden the unrestrainable power of the presidency. But it is also thematically compatible with the idea of a “unitary executive” — a theory that grants expansive powers to the presidency and is advanced by some conservative lawyers — including current Attorney General William Barr. In his own way, Trump has argued similar points, claiming that Article II of the Constitution gives him the power to do anything he wants.

Read the entire piece here.

I was struck by Dershowitz’s statement that all other Constitutional scholars are “influenced by their own bias, by their own politics and their views should be taken with that in mind.  They simply do not give objective assessments of constitutional history.”

Such a statement implies that Dershowitz is the only true, objective constitutional scholar in the world.   Everyone else is biased.  Only he is right.  This is like Trump saying “I alone can fix it.”

Dershowitz’s absurd argument is an appeal to the Trump base.  Dershowitz is telling Trump supporters that there is a deep state of elite liberal law professors who are out to get them and their president.  I have not had a chance to watch Fox News today, but I am imagine they are running with this argument.

“They come for the power for power they stay”

Song of the Day (HT: Dan Cohen):

It’s built to impress you and it works like that
All that white marble and the guards at the door
The metal detector, the following eyes
Geometric patterns covering the floor
The symbols of power, eagles and flags
Attendants, assistants moving like sharks
Through crowds of citizens, patriotic souls
Visiting the capitol and National Parks
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear
I wonder what they say, say to each other
How do they think, what do they feel
When they come out of those rooms
And put on their faces
Is anything they say to the cameras real?
They come for the power for power they stay
And they’ll do anything to keep it that way
They’ll ignore the constitution
And hide behind the scenes
Anything to stay a part of the machine
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear
And the votes are just pieces of paper
And they sneer at the people who voted
And they laugh as the votes were not counted
And the will of the people was noted
And completely ignored
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear

Doug Collins is Running for Senate in Georgia

Doug Collins

He became a national figure during the House impeachment hearings.  Now Georgia congressman Doug Collins is running for Senate.  Here is a taste of Richard Elliot’s piece at the website of WSB-TV in Atlanta:

U.S. Rep. Doug Collins, R-Ga., made it official Wednesday that he is running for the U.S. Senate seat that Johnny Isakson had held.

Sen. Kelly Loeffler currently holds the seat after Gov. Brian Kemp’s handpicked her to fill it when Isakson resigned at the end of December.

Georgia evangelicals make up a big voting block in the Republican Party. Right now, the Faith and Freedom Coalition is keeping back and not taking an official stance on either candidate.

But that didn’t stop Kemp from asking them to support his pick for senator Wednesday.

Collins waiting until an appearance on “Fox and Friends” Wednesday morning to make the official announcement.

“I know there’s been some discussion about it, and I’ve been asked by y’all before about the Senate race down there, and I’m just going to confirm we’re in for the Georgia Senate race down here,” Collins said.

Collins is hoping for an endorsement from President Donald Trump.

Read the rest here.

Collins, you may recall, apologized for claiming on Fox News that Nancy and Pelosi and the Democrats cared more about Iranian military leader Qased Soleimani than American soldiers. He also said that the Democrats were in love with terrorists.

Collins is an evangelical Christian.  He has a Masters of Divinity degree from New Orleans Baptist Theological Seminary.  He served as the senior pastor of Chicopee Baptist Church.  He currently attends Lakewood Baptist Church in Lakewood, Georgia.

What John Bolton’s Testimony Will Reveal About Republican Senators

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Mitt Romney: “Situational Trumpian”

Here is Damon Linker at The Week:

With it looking increasingly likely that Sen. Majority Leader Mitch McConnell won’t be able to prevent a vote in favor of calling witnesses in the impeachment trial of President Trump, the GOP finds itself in a tight spot.

Everyone agrees that there’s something close to a zero chance that 20 — and only a tiny chance that any — Republicans will join with 47 Democrats to vote in favor of convicting and removing the president from office, no matter what Trump’s former National Security Adviser John Bolton says under oath. (Conviction and removal would require an affirmative vote of 67 senators.) Yet allowing Bolton to testify about what’s apparently in his forthcoming book — namely, that in August 2019 the president understood himself to be withholding badly needed aid to Ukraine in order to get its president to announce he was opening an investigation of former Vice President Joe Biden and his son Hunter Biden — would force Republicans to clearly reveal where they stand on the most important issue dividing the party.

Linker argues that Bolton’s testimony will reveal three kinds of Republicans:

  1. “The full-on-reality-warping Trumpians”
  2. “The moral-relativist Trumpians”
  3. “Situational Trumpians”

Read how Linker defines these categories here.

When Political Loyalty Trumps Moral Clarity

Impeachment Image

We are in the third day of the Donald Trump Senate impeachment trial.  Kentucky Senator Rand Paul has already gone on record saying that the entire trial is a “partisan charade.”

Other GOP Senators have also weighed-in:

Whether you call the Senators “jurors” or “judges,” something is not right about a Senator writing tweets like this during such an important trial.  This impeachment trial is not a hoax.  The Constitution says that the House of Representatives has the authority to impeach the president.  This has happened.  Some Senators may not like that this has happened, but it did.  Senators now have a responsibility to sit quietly, listen to evidence, and make a decision about whether or not to remove the president.

This impeachment trial is just the latest example of how political partisanship distorts critical thinking and basic morality.

I don’t see how any Senator can be confronted with the evidence we have heard over the last two days and not think that Donald Trump has done something immoral. We can debate whether or not what Trump did was an impeachable offense, but can we truly say that he acted in a morally upright way in this whole Ukraine mess?  Was this really a “perfect call?”

Why won’t these GOP Senators speak-up?  Why won’t they publicly admonish Trump for his blatant immoral behavior?  Why have they remained silent or commented on Trump’s immorality with phrases like “Well, that’s just his style” or “if it was me, I wouldn’t have used those words.”  Why do they take media opportunities to defend Trump?  I hope people like Mitt Romney, Ben Sasse, Cory Gardner, Tom Cotton, Marco Rubio, roy Blunt, Richard Burr, Rick Scott, Rob Portman, James Lankford, Pat Toomey, Tim Scott, John Thune, Bill Cassidy, and Lamar Alexander will answer these questions for me.  Mitt Romney is a Mormon.  Sasse, Rubio, Blunt, Lankford,, Tim Scott, Rick Scott, and Thune are evangelical Christians.

Most of these Senators can think critically and make decisions based on evidence.  Many of them have a sense of right and wrong.  But their critical faculties and moral capacities are held captive by political partisanship.  Party loyalty weakens independent thinking.  Party loyalty undermines moral clarity.

On John Roberts and Pettifogging

Pettifogging

Watch Chief Justice John Roberts here.  (For some reason You Tube will not let me access its embedding codes today).

Pettifogging: “worrying too much about details that are minor or not important.”  It was often used a derogatory statement about lawyers.

Charles Swayne was a U.S. District Court judge for the Northern District of Florida.  He was appointed by Benjamin Harrison in 1889 and confirmed by the Senate in 1890.  The House of Representatives impeached him on December 13, 1904 for “filing false travel vouchers, improper use of private railroad cars, unlawfully imprisoning two attorneys for contempt outside of his district. (Sounds like pettifogging to me! 🙂 ) Swayne admitted to the charges and called his lapses “inadvertent.” The Senate found him “not guilty” on February 27, 1905.

You can read the excerpt from the trial, including the use of the word “pettifogging,” here (p.188).

You can also read an edited excerpt of the proceedings from Hinds’ Precedents of the House of Representatives.

A few thoughts:

First, we can always use more civil discourse.  Of all the House Managers, Nadler is the most obnoxious.  Cipollone and Sekulow seems to be performing for Donald Trump.

Second, John Roberts came to the Trump impeachment trial prepared.  He anticipated this kind incivility and was ready with the “pettifogging” quote from the 1905 Swayne trial.  Nice work.  We will see what he has up his sleeve today.

Third, is Roberts right when he says that the Senate is the “world’s greatest deliberative body” because “its members avoid speaking in a manner and using language that is not conducive to civil discourse?” This is how the framers may have envisioned the Senate, but American history suggests that Roberts may be too optimistic about this legislative body.  Here is Yale historian Joanne Freeman in Field of Blood: Violence in Congress and the Road to the Civil War:

…the Senate was generally calmer than the House.  Smaller in size, with its acoustics in working order and its members a little older, more established, more experienced, and sometimes higher on the social scale, it was a true forum for debate….Debate in the Senate was thus more of a dialogue–long winded, agenda-driven, and something of a performance, but a dialogue just the same. That doesn’t mean the Senate was a haven of safety.  It wasn’t  There were plenty of threats and insults on the floor. Henry Clay (W-KY) was a master.  His attack in 1832 on the elderly Samuel Smith (J-MD), a Revolutionary War veteran and forty-year veteran of the Senate, was so severe that senators physically drew back, worried that things might get ugly.  Clay called Smith a tottering old man with flip-flopping politics; Smith denied it and countered that he could “take a view” of Clay’s politics that would prove him inconsistent; and Clay jeered “Take it, sir, take it–I dare you!”  Smith defended himself, but when he later sought the advice of John Quincy Adams (clearly Fight Consultant Extraordinaire), Smith was do deeply wounded that he was on the verge of tears.

What Did the Founding Fathers Say About Impeachment?

House Managers

House managers in the impeachment trial of President Donald Trump filed their brief to the Senate today.  The brief describes Trump’s behavior with Ukraine “the Framers’ worst nightmare.”

So what did the Framers of the United States Constitution say about impeachment?

Here is a nice summary from the United States Constitution Center:

One of the most hotly debated clauses in the Constitution deals with the removal of federal government officials through the impeachment process. But what did the Founders who crafted that language think about the process and its overall intention?

The need for the ultimate check, and in particular the removal of the President, in a system of checks and balances was brought up early at the 1787 convention in Philadelphia. Constitutional heavyweights such as James Madison, Benjamin Franklin, James Wilson and Gouverneur Morris debated the Impeachment Clause at the convention, and Alexander Hamilton argued for it in The Federalist after the convention.

Today, impeachment remains as a rarely used process to potentially remove the “President, Vice President and all civil Officers of the United States” if Congress finds them guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.”

In all, 19 federal officials have been brought up on impeachment charges by the House of Representatives since 1789, with eight people convicted after a Senate trial. Two Presidents – Andrew Johnson and Bill Clinton – faced Senate trials but were not found guilty by a two-thirds majority of the Senate.

The threat of impeachment remains a power check, at least in theory, against the abuse of power, and it is sometimes discussed in times of political controversy, as well as in cases where there is a clear issue with personal conduct in office. Of the eight persons impeached and convicted in Congress, all were judges who faced charges including perjury, tax evasion, bribery, and in one case, supporting the Confederacy.

At the 1787 convention, delegate Edmund Randolph quickly brought up the subject as part of his Virginia Plan. William Patterson’s rival New Jersey Plan had its own impeachment clause. National Constitution Center scholar-in-residence Michael Gerhardt explained the differences in his book, “The Federal Impeachment Process: A Constitutional and Historical Analysis.”

Read the rest here.

Who Presided Over Andrew Johnson’s Impeachment Trial?

Chase

On Thursday, Chief Justice John Roberts began presiding over the Donald Trump impeachment trial.

Over at The Washington Post, Michael Rosenwald writes about Salmon P. Chase, the Chief Justice who presided over Andrew Johnson’s impeachment trial in 1868.  Here is a taste of his piece, “The chief justice who presided over the first presidential impeachment trial thought it was political spectacle“:

Johnson was on trial for, among other things, violating the Tenure of Office Act in 1867, which said the president couldn’t fire important government officials unless he got the go-ahead from the Senate. Johnson had fired the secretary of war, Edwin M. Stanton, without consulting the Senate. Cue impeachment.

Chase thought the whole thing was much ado about nothing.

“Chase had profound misgivings about the trial,” Niven wrote. “He considered the articles more of partisan rhetoric than substantive evidence for a conviction.”

In a letter to Gerrit Smith, a fellow abolitionist and former congressman, Chase wrote that “the whole business seems wrong, and if I had any opinion, under the Constitution, I would not take part in it.”

Chase suspected the whole business would become a public spectacle.

Read the entire piece here.

I Think the Circus Just Came to Washington

Dershowitz

Alan Dershowitz

In case you haven’t heard, Trump has added Ken Starr, Alan Dershowitz, and Robert Ray to his defense team.  I think the days of Dershowitz receiving dinner invitations on Martha’s Vineyard are over.  The shunning will only get worse.

In case Trump needs more lawyers, Robert Shapiro, F. Lee Bailey, and Barry Scheck are still alive.  (Unfortunately for Trump, Johnnie Cochran and Robert Kardashian have passed away).

Let the show begin.  This trial is going to be reality television at its “finest.”

Was Donald Trump Impeached?

Cassidy-ImpeachmentGOPMemo

Noah Feldman of Harvard Law School is one of the legal scholars who testified before the House Judiciary Committee.  He was one of the three (of four) lawyers who concluded that Trump’s phone call to Ukraine and his obstruction of Congress were impeachable offenses.

In his most recent column at Bloomsberg News, Feldman argues that the House has not yet impeached Donald Trump.

Here is a taste:

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.

As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.

Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Failure for the Senate to hold a trial after impeachment would deviate from the Constitution’s clear expectation.

For the House to vote “to impeach” without ever sending the articles of impeachment to the Senate for trial would also deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides.

Read the entire piece here.

Mitt, I’ve Always Liked You. Please Break With Your Party Again

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Over at The Washington Post, Katherine Rampell writes about how Mitt Romney broke with many of his GOP colleagues in his decision to support an expansion of the child tax credit.

Now it is time for Romney to break with his party again and vote to remove the President of the United States from office.  At the very least, Romney should make it difficult for Mitch McConnell to prevent the calling of Trump staff members as witnesses in the Senate impeachment trial.

It is time for Trump’s vocal GOP critics–Romney, Rubio, Sasse, Collins, and Murkowski–to step-up to the plate.  Don’t let us down Mitt!

ABC News/Washington Post Poll: 7 in 10 Americans Want Mulvaney and Bolton to Testify in Impeachment Trial

bolton-and-mulvaney

Here is ABC News:

Seven in 10 Americans in a new ABC News/Washington Post poll say President Donald Trump should allow his top aides to testify in a Senate trial on the impeachment charges against him, and six in 10 expect a fair trial in the Senate, two points of majority agreement — across party lines — in the otherwise divisive impeachment saga.

More than half, 55%, also say Trump was treated fairly in the House Intelligence and Judiciary Committee hearings that led to the articles of impeachment against him. But partisan divisions on this question are vast, as they are on most other impeachment issues.

Read the entire piece here.

Why Have So Many U.S. Senators Been Silent on Impeachment?

Lindsey

Perhaps Lindsey Graham should think about keeping his mouth shut on impeachment

While people like Lindsey Graham, the South Carolina Senator who seems to have lost his moral compass after the death of John McCain, runs his mouth off about impeachment, other Senators remain quiet.  Some have even taken a “vow of silence.”  As Texas A&M law professor Lynne Rambo notes at The Conversation, such a vow of silence is appropriate.  In an impeachment trial, the Senate serves as the jury.  And who wants members of jury going public with their thoughts about the trial?  Here is a taste of her piece:

 

Several Republican senators have taken a “vow of silence” on the impeachment inquiry in the House of Representatives.

Maine Senator Susan Collins has described her position this way: “I am very likely to be a juror so to make a predetermined decision on whether to convict a president of the United States does not fulfill one’s constitutional responsibilities.”

From a purely political standpoint, the senators’ choice is beneficial for both parties. The senators cannot find it easy to speak approvingly of the president’s opportunistic conduct with foreign countries, so silence is probably the most graceful position for the Republican Party.

The silence is also helpful from the Democratic Party’s perspective. Democrats would no doubt prefer that the senators just abandon Trump immediately, but that seems unlikely to happen. The silence at least preserves the possibility that they will convict Trump if and when the time comes.

That said, there is nothing requiring the senators to remain silent on the issues. No written law or rule instructs senators to take that approach. The Senate’s Rules on Impeachment Trials do not address pretrial conduct at all.

The senators’ choice seems to stem instead from a decision to treat the impeachment proceeding much like a judicial trial. As a professor of Constitutional law, I find that analogy quite apt.

Read the entire piece here.

The *Denver Post* Regrets Its Endorsement of Cory Gardner

Cory Gardner

So much for “fresh leadership, energy, and ideas.”  Here is the Post:

We endorsed Sen. Cory Gardner in 2014 because we believed he’d be a statesman. We knew he’d be a conservative voice in Congress, to be certain, but we thought his voice would bring “fresh leadership, energy and ideas.”

We see now that was a mistake – consider this our resolution of disapproval.

Gardner has been too busy walking a political tight rope to be a leader. He has become precisely what we said in our endorsement he would not be: “a political time-server interested only in professional security.”

Gardner was not among the 12 Republicans who joined Democrats in rejecting President Donald Trump’s use of a national emergency declaration to allocate funds to a wall along the U.S.-Mexico border.

We fully expect to disagree with our lawmakers from time to time — in fact we’ve been critical of Gardner but stuck by him through tough but defensible votes including the attempted repeal of the Affordable Care Act.

But these are extraordinary times. This is a bogus emergency that takes executive over-reach to an extreme not seen even under President Barack Obama. Trump’s declaration is an abuse of his power, a direct overturning of Congress’ deliberate decision to pass a federal budget without funding for a wall.

Read the rest here.

Pro-Life Women for Beto O’Rourke

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Earlier this month, New York Times religion reporter Elizabeth Dias did a story on evangelical women who are supporting Beto O’Rourke over Ted Cruz in the Texas Senate race.  One of the women quoted in that piece said “I care as much about babies at the border as I do about babies in the womb.”

Destiny Herndon-De La Rosa is a pro-life feminist and founder of an organization called New Wave Feminists.  In an op-ed in yesterday’s Dallas Morning News she explains why she just voted for Beto, a pro-choice candidate.  Here is a taste of her piece:

I run a large pro-life feminist group, not just a pro-life group. We were the ones removed as sponsors from the Women’s March back in 2017 because of our stance against abortion rights. And that was a real shame because while I am 100 percent pro-life, I’m also 100 percent feminist, and I saw the way Trump treated women as an absolute deal-breaker. Sadly, we were one of the few pro-life groups that took this position. 

However, during that election I started to see, as an independent, just how deep the GOP had its hooks in the pro-life movement. I saw the way these politicians used unborn children’s lives to get out the vote but then oftentimes forgot about those lives soon after. I saw the way pro-lifers compromised so many of their own upstanding ethics and morals to elect a man thrice married, who bragged about his infidelities and predatory behavior. And why? So they could get their Supreme Court seats.

And then I watched as they got two of those seats, and how they boasted that all of their compromise had been worth it because we now have a “pro-life” advantage on the Supreme Court and could possibly overturn Roe vs. Wade. All the while, Sen. Susan Collins was explaining that she voted yes to Kavanaugh only because he assured her Roe was “settled law.”

This was the last straw for me. That’s when the blinders came all the way off. This idea of eliminating abortion by simply making it illegal is far too low of a bar to set. Abortion must become unthinkable and unnecessary if we want to eradicate it from our culture. And the only way that will happen is by creating a post-Roe culture while Roe still stands.

Read the entire piece here.

The *Believe Me* Book Tour is Headed to the Senate Building

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On Wednesday morning, October 10, I will be on Capitol Hill (Dirksen Senate building) to speak to about 100 evangelical leaders gathered for the National Association of Evangelicals’ annual “Washington Briefing.”

The NAE leadership has asked me to talk about Believe Me: The Evangelical Road to Donald Trump.  The event is not open to the public, but I can announce that I will be sharing the day with Rep. Carlos Curbelo, Mark Green, Nathan Gonzalez, Shirley Hoogstra, Ali Noorani, Sen. James Lankford, Brian Walsh, Barbara Williams-Skinner, Sen. Marco Rubio, Stephanie Summers, and Os Guinness.

Stay tuned.

What I Watched Ted Cruz Do Tonight at the End of His Debate With Beto O’Rourke Was Despicable

Fast forward to the 51:30 mark of tonight Ted Cruz-Beto O’Rourke’s debate.

 

Sadly, Texas evangelicals have Cruz’s back.  I am sure they cheered when he offered Beto this back-handed compliment.

Hey Ben Sasse, What About Merrick Garland?

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This morning I praised Ben Sasse for his powerful speech yesterday during the Brett Kavanaugh hearings.  I still do.  Sasse chided his fellow Senators for not doing their jobs as defined by the Constitution.

But where was Sasse’s constitutional principles when his party decided not to give a hearing to Merrick Garland, Barack Obama’s choice to replace Antonin Scalia?  Where was the Senate’s lively and engaged debate, the kind of stuff Sasse talked about in his Kavanaugh speech?  At the time, Sasse didn’t say much about Garland. But as I see it, he certainly didn’t defend the Senate’s constitutional requirement to advise and consent.  Sasse was complicit in this partisan attempt to undermine Obama’s appointee.

Here are a couple links:

According to this Washington Post graphic, Sasse did not support hearings for Garland and refused to meet with him.

When NPR’s Steve Inskeep asked him about why the GOP turned the Merrick nomination into a partisan issue, Sasse dodged the question.