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.

Chief Justice John Roberts Needs to Attend Oral Arguments Tomorrow on a Religious Liberty Case

ROberts

Is Roberts getting sleepy?

Mitch McConnell is going to let this first day of the impeachment trial go late into the night.  I wonder if he knows that John Roberts needs to get up early tomorrow morning for oral arguments on the Supreme Court case Espinoza v. Montana.  I would think that the GOP might want the Chief Justice to be well rested and fresh for these particular oral arguments.

Here is the excerpt from the SCOTUS calendar:

And on January 22, the justices will hear oral argument in Espinoza v. Montana Department of Revenue, a dispute over a Montana law that created tax credits to provide scholarships for families who send their children to private schools, including religious schools. The Montana Supreme Court struck the law down, ruling that it violated the state’s constitution because it helped religious institutions. Three low-income mothers who used the scholarships to send their children to a Christian school in Kalispell, Montana, went to the Supreme Court, arguing that excluding religious schools from the scholarship program violates the federal Constitution.

Read more about this case 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.

Some Historical Perspective on Supreme Court Confirmations

Supreme Court

Rhodes College historian Timothy Huebner, author of a series of lectures on the Supreme Court, reminds us that 19th-century debates over the confirmation of Supreme Court justices were more contentious than what goes on today.  Here is a taste of his recent piece at The Washington Post:

But if our current nomination and confirmation process for Supreme Court justices is broken, as many have suggested, it is not because it has become more political than it used to be. Instead, history shows that the appointment process may actually be less political than it was during the 19th century. But transformations during the 20th century have gradually left politics and ideology as the main battleground in confirming judges, leaving the false impression that the process is far worse than in the past.

During the first century or so of the Supreme Court’s history, selecting and confirming judicial nominees was political and sharply contentious. From the start, presidents picked nominees whom they assumed generally agreed with their political philosophy, and some, such as Andrew Jackson and Abraham Lincoln, even rewarded cronies with seats on the court. Unlike today, many nominees for the court lacked prior judicial experience. In fact, of the 57 justices nominated and confirmed between 1789 and 1898, 17 lacked substantial judicial experience at either the state or federal level. Instead, they were private attorneys, legislators or Cabinet secretaries. 

Read the rest here.

The Price Evangelicals Will Pay for a Supreme Court Seat

Believe Me 3d

Ever since I released Believe Me: The Evangelical Road to Donald Trump I have been trying to get my fellow evangelicals to see that their bargain with Trump is bad for the Gospel and its public witness in the world.

Doug Pagitt, pastor of Solomon’s Porch in South Minneapolis, seems to agree.  Here is a taste of his recent piece in USA Today: 

Religious leaders have given up moral ground at every renewed show of support for this administration and Congress. They stood by as families were torn apart at our border, the children shipped off to remote detention camps in the middle of the night. They cheered as health care was stripped away from the poor and the sick. And they fell in line to support the newly confirmed Justice Brett Kavanaugh, who was credibly accused of harming multiple women. These are not positions informed by the teachings of Jesus Christ — to the contrary, they are antithetical to what Jesus preached.

So why are so many white evangelicals dead-set on supporting the Trump administration and current Republican Congress? Their insistence on walking in lockstep with the Republican Party often is primarily motivated by a single issue: abortion.

Many of us are taught from a young age that abortion is the issue on which our vote should always hinge. The hope among many evangelicals is to make abortion illegal. Evidence, however, suggests that criminalization does not reduce abortions. In fact, studies show that criminalizing abortion does nothing to protect babies, but instead endangers mothers.

Read the rest here.

David Brooks: “A Complete National Disgrace”

Senate Holds Confirmation Hearing For Brett Kavanugh To Be Supreme Court Justice

There is little I disagree with in David Brooks’s analysis of Kavanaugh hearings.  Here is a taste:

These hearings were also a devastating blow to intellectual humility. At the heart of this case is a mystery: What happened at that party 36 years ago? There is no corroborating evidence either way. So the crucial questions are: How do we sit with this uncertainty? How do we weigh the two contradictory testimonies? How do we measure these testimonies when all of cognitive science tells us that human beings are really bad at spotting falsehood? Should a person’s adult life be defined by something he did in high school?

Commentators and others may have acknowledged uncertainty on these questions for about 2.5 seconds, but then they took sides. If they couldn’t take sides based on the original evidence, they found new reasons to confirm their previous positions. Kavanaugh is too angry and dishonest. He drank beer and threw ice while in college. With tribal warfare all around, uncertainty is the one state you are not permitted to be in.

Read the rest here.

Brooks’s point about intellectual humility is an interesting one, especially for historians.  How do we treat out sources?  How do we use those sources to find out “what happened?”  What can and can’t we know?  Any historian knows that this is a difficult task and one in which knee-jerk reactions and political rhetoric are not always helpful in getting at the truth.

Chris Dudley Could Wield a Bar Glass, but He Couldn’t Hit a Free Throw to Save His Life

Have you seen the latest in the Brett Kavanaugh affair?  During his junior year at Yale, Kavanaugh got into a bar fight.  During the fight his friend Chris Dudley, a 6’11” center on the Yale basketball team, smashed a glass over the head of a guy who they original thought was the lead singer of UB40.  (Yes, you are reading this correctly).

As a long-suffering New York Nets fan, I can safely say that Dudley was more accurate with a glass in a bar fight than he ever was from the free-throw line.  I think Marv Albert would agree:

 

White Evangelicals and the New Marist Poll

Blasey

Here are some of the findings:

  • 72% of white evangelicals approve of the job Donald Trump is doing as president (and 44% “strongly approve).
  • 71% of white evangelicals say that they will vote for a Republican in the 2018 midterms.
  • 58% of white evangelicals say that they are likely to vote for a congressional candidate in November 2018 who supports the confirmation of Brett Kavanaugh to the Supreme Court. (27% of white evangelicals say that the confirmation of Kavanaugh will not make any difference in how they vote in November 2018).
  • 56% of white evangelicals have a “favorable impression” of Brett Kavanaugh. (31% are either “unsure” or have “never heard” of Kavanaugh).
  • Only 9% of white evangelicals have a “favorable impression” of Christine Blasey Ford.  59% of white evangelicals are “unsure” of her or have “never heard” of her.
  • 51% of white evangelicals have been following the Kavanaugh news coverage “very closely” or “closely.”
  • If Kavanaugh did commit the acts that Christine Blasey Ford said that he did, 48% of white evangelicals would still support his confirmation to the Supreme Court.
  • Only 14% of white evangelicals think Christine Blasey Ford told the truth about what happened at the party in high school.  41% are “not sure” who to believe.
  • 64% of white evangelicals support the nomination of Brett Kavanaugh.

Liberty University Students Came to the U.S. Senate on Thursday to Support Kavanaugh

Liberty U Kavanaugh

Liberty University staged a rally for Kavanaugh (Huffington Post photo)

And their president, court evangelical Jerry Falwell Jr., was with them.

The Lynchburg News & Advance reports:

About 300 Liberty University students traveled to Washington, D.C. Thursday to support Supreme Court nominee Brett Kavanaugh, who is under fire with two accusers alleging sexual assault and another claiming to have witnessed such behavior.

While the marathon Senate Judiciary Committee hearing unfolded on Capitol Hill, Liberty students attending a Concerned Women for America and Women for Kavanaugh rally. They also visited the office of Sen. Chuck Grassley (R-Iowa) to show their support for the Judiciary Committee chairman.

“We wanted [Kavanaugh’s] voice to be heard … and to support him and his family,” said Victoria Belk, an LU student and president of LU’s Young Women for America, a college chapter of CWA. “True equality is hearing from both sides; hearing him out was important to us.”

Read the rest here.  The Huffington Post has posted a video of the rally here.

Over at Religion News Service, Jason Lupfer argues that conservative evangelical support for Kavanaugh will cost them.  Here is a taste of his piece:

Politically,  white conservative Christians have been invaluable to the country club wing of the Republican Party, which put their zeal to work to end an era of social progress on civil rights, economic equality and fiscal health. The old guard used its newfound clout to enact deficit-financed tax cuts, decimate the labor movement and shift an ever higher percentage of the national income to those at the very top.

Meanwhile, their own principles suffered.

Few white evangelicals or conservative Catholics were put off by the party’s embrace of leaders who demonized Islam, disparaged undocumented immigrants and rolled back voting rights. They helped ensure that the Republicans ended up abandoning morality altogether and nominating for president a vulgar, spiteful man who boasted of his own sexual assaults.

Now it seems that president has nominated a judge who shares the political values of conservative evangelicals but may have violated many of their morals. Drunken parties and sexual assault are the kinds of things that Liberty University — and Concerned Women for America — have abhorred in the past.

But they no longer seem to give these conservative evangelicals pause.

So often when religion and politics mix, religion is sullied. As the evangelicals have risen in prominence, we have heard less and less about the Old, Old Story, and wondered if they even believed it at all.

The country has suffered under this partnership as well.

Read the entire piece here.  Much of what Lupfer writes here meshes well with my own work in Believe Me: The Evangelical Road to Donald Trump.

Believe Me 3d

Quote of the Day

Dante

Liberty University English professor and author Karen Swallow Prior on the Kavanaugh nomination and the Blasey Ford accusations:

“I don’t expect we will ever know the truth about what did or did not happen. But as an evangelical Christian, I am convinced Dante himself could not have devised a more fitting circle of hell for my faith community than the one in which we find ourselves: being destroyed from the inside out by the sexual sin we spent decades pointing out everywhere but in our own house. For us, this is the real trial.”

Source

The Court Evangelicals are Getting Antsy about the Possibility that Kavanaugh Will Not be Confirmed

Kavanaugh

P

Here is Jeremy Peters and Elizabeth Dias at The New York Times:

Worried their chance to cement a conservative majority on the Supreme Court could slip away, a growing number of evangelical and anti-abortion leaders are expressing frustration that Senate Republicans and the White House are not protecting Judge Brett M. Kavanaugh more forcefully from a sexual assault allegation and warning that conservative voters may stay home in November if his nomination falls apart.

Several of these leaders, including ones with close ties to the White House and Senate Republicans, are urging Republicans to move forward with a confirmation vote imminently unless the woman who accused Judge Kavanaugh of sexual assault, Christine Blasey Ford, agrees to share her story with the Senate Judiciary Committee within the next few days.

Ralph Reed thinks that the failure to confirm Kavanaugh before the November 2018 elections will make it “very difficult to motivate and energize faith-based and conservative voters.”  I don’t understand the logic here.  If Kavanaugh is not nominated, most conservative evangelicals I know would be highly motivated to vote in November. They will want to make sure the GOP controls the Senate so that Trump’s replacement for Kavanaugh will be confirmed.

Tweets of the Day: Merrick Garland

 

What Will Evangelicals Do if Kavanaugh’s Nomination Fails?

Kavanaugh

An MSNBC White House correspondent believes that white conservative evangelicals will “crucify Trump” if the Brett Kavanaugh nomination fails.

Here is a taste:

MSNBC White House correspondent Yamiche Alcindor said Monday that if President Trump loses his fight to put conservative Brett Kavanaugh on the Supreme Court, his religious base may lose whatever faith they have in the man many of their sect believe was chosen by God to lead the country.

“Sarah Sanders is echoing a lot of the reaction of a lot of evangelical Christians when I asked them how they support President Trump,” Alcindor said. “They say this is someone who can be used even if he’s problematic, even if he in their mind has sinned, that he can still be someone who puts forth policies that can help people’s lives.”

But in the event that Trump fails to appoint Kavanaugh to the court, where he could be the deciding vote on an number of their political goals, conservative Christians will like flee, Alcindor believed. “This is one of the number one things that evangelical Christians wanted out of this president,” she said. “They wanted a Supreme Court that was going to try to overturn Roe v. Wade, that wasn’t going to be pro-choice, that was going to be a pro-life Supreme Court.”

I don’t see it this way.  If the Kavanaugh nomination fails, Trump evangelicals will blame the liberals.  They will not blame Trump.  Trump will nominate another conservative justice off the Federalist Society or Heritage Foundation list and we will go through all of this again.  A failed Kavanaugh nomination will not weaken conservative evangelical support for the president, it will strengthen it.

David Brooks: “Don’t make up your mind about Kavanaugh without reading this”

Read Caitlin Flanagan’s story at The Atlantic.  It is worth your time.  Here is a taste:

“Dear Caitlin,” an inscription in my 12th-grade yearbook begins. “I’m really very sorry that our friendship plummeted straight downhill after the first few months of school. Really, the blame rests totally on my shoulders. To tell you the truth, I’ve wanted to say this all year. I know you’ll succeed because you’re very smart and I regard you with the utmost respect … Take care—love always.”

He was headed to a prestigious college. I was headed to a small, obscure liberal-arts college, which was a tremendous achievement, not just because I was a terrible student, but also because I had nearly killed myself as a response to what he apologized for in my yearbook. He had tried to rape me during a date that I was very excited to have been asked on, and his attempt was so serious—and he was so powerful—that for a few minutes, I was truly fighting him off.

Read the rest here.

Hey Ben Sasse, What About Merrick Garland?

7954c-sasse

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.

Al Mohler Pontificates on the Origins of the Culture War

KavanaughWho “started” the culture wars?

Recently some members of the Evangelical left called for a “pause” to the culture wars.  Evangelical women want Congress to reject the Brett Kavanaugh Supreme Court nomination and appoint a more moderate justice.  Read about their efforts here.

Meanwhile, Al Mohler, the conservative evangelical president of Southern Baptist Theological Seminary, has told PJ Media that such efforts are “doomed to failure.”  Here is a taste of Tyler O’Neil’s piece:

“The ‘Call to Pause’ is just the latest effort by the Evangelical left to blame the culture war on conservatives,” Al Mohler, president of the Southern Baptist Theological Seminary (SBTS), told PJ Media Sunday. He insisted that the “Call to Pause” is doomed to failure, and more likely to damage the reputations of its supporters than to achieve any cultural or political change.

Here is more:

Mohler fought back against the idea that conservative evangelicals are to blame for the culture war. “It was liberals who pushed the new ethic of personal autonomy and sexual liberation, and it was liberals who championed legalized abortion and celebrated the infamous Roe v. Wade decision in 1973,” the SBTS president told PJ Media.

He noted that “you can date organized evangelical involvement in American politics to Roe v. Wade,” noting that the conservative evangelical movement was largely a reaction to the Left’s culture war coups achieved by the Supreme Court. This became even more clear in light of Obergefell v. Hodges (2015), which supercharged conservatives’ emphasis on the Supreme Court.

“Now, just after the nomination of a clearly conservative judge, Brett Kavanaugh, as the next justice of the Supreme Court, the evangelical left is predictably opposing the nominee, and calling for a ‘pause’ in the culture war,” Mohler noted. “Amazingly enough, those behind the ‘Call to Pause’ are transparent about their fear that Roe v. Wade might be reversed, or even that abortion rights might be curtailed.”

A few thoughts:

  1. Mohler is often at his dogmatic worst whenever commenting on sexual politics.  I do not expect Mohler to agree with the evangelical women who oppose Kavanaugh’s nomination, but why does he have to come across as such an authoritarian ecclesiastical strongman whenever the issue he is addressing involves evangelical women?  One thinks he might have learned something about the voices of women in his denomination.
  2. Mohler pins the entire culture war on Roe v. Wade.  While this Supreme Court case played an important role in mobilizing the Christian Right, it is much more complicated than this.  But nuance, of course, will not help Mohler and his friends win the culture wars.
  3. Mohler continues to operate on the old Christian Right playbook for winning the culture wars.  If we nominate the right Supreme Court justice, the playbook teaches, the problem of abortion will go away.  For some context on this playbook see Believe Me: The Evangelical Road to Donald Trump.

Court Evangelical Robert Jeffress Stays the Course

As I said this morning on CNN (no video available yet), it doesn’t matter what Trump did with Karen McDougal or whether or not he is lying about it. As long as Trump keeps appointing Supreme Court justices like Brett Kavanaugh and Neil Gorsuch and continues to give lip service to religious liberty (as understood by conservative evangelicals) he will have the support of evangelicals.

This kind of thing should thus no longer surprise us:

I have not yet heard Jeffress compare Trump’s lack of morality to Ronald Reagan’s indiscretions.  Interesting.  Actually, I think there are comparisons we can make between Reagan and Trump.  For example, evangelicals in pursuit of political power got into bed with both of them.  It wasn’t a good idea then (just ask Cal Thomas) and it isn’t a good idea now.