Arming Teachers is Fantasy, Not Policy

Having “20% of your teaching force” trained and armed with concealed weapons is not a serious policy proposal but a talking point written by the NRA and dutifully recited by President Trump — the man the NRA spent $30 million electing.  Arming teachers to stop gun violence sounds plausible only to those who so devoutly want to believe that more guns are the answer to gun violence that they will ignore reality. To understand why the idea is pure fantasy rather than serious policy, please consider what would happen if a shooter burst into a classroom after Trump’s “arm the teachers” proposal had been fully implemented.

First, there is an 80% chance that the teacher in the classroom would not be armed (since only 20% are armed). In those cases, the shooter then proceeds to shoot the teacher first (just to make sure he/she is not one of the 20%) and then methodically murder every child in the classroom before moving on to another classroom, thereby taking another 1-in-5 chance that a teacher could be armed. They would inflict maximum carnage in each classroom rather than wandering the halls since each move entails facing that 1-in-5 risk of encountering an armed teacher. While the NRA would like us to believe that another, armed teacher would intervene, that won’t happen since it would require the armed teacher to abandon his/her own classroom, leaving all of the terrified students completely unprotected and without any adult guidance. Every armed teacher would need to think about questions such as what if there are multiple shooters? What if the shooter kills the teacher and then takes vengeance on the students in that teacher’s classroom? What would parents say when they learned that the trained and armed teacher responsible for their children’s safety simply abandoned them?

Second, if the teacher in the classroom chosen by the shooter is one of the trained and armed 20%, it would boil down to a contest of who could shoot first – a teacher with a concealed handgun or a shooter who bursts into the classroom holding a semiautomatic (or even automatic, given the continued availability of bump stocks) weapon held at the ready and already aimed at the teacher. Remember, this is real life and not the movies; the odds of someone pulling out a concealed handgun, disengaging the safety, firing and hitting the shooter faster than the intruder could squeeze off rounds from an AR-15 already held at the read is virtually zero.  In most schools, the shooter could simply fire through glass in the door to kill the teacher before the victim knew an attack was about to happen.

Third, since the most common school shooter is a current or former student, the odds are very high that the shooter will know which teachers are armed even before entering the school. As anyone who has spent time around undercover or plainclothes police knows, “concealed” weapons are only concealed in the sense that they are not obvious. Anyone with even a bit of knowledge (easily gleaned from the Internet) would recognize the tell-tale bulges around ankles, under suit jackets or near the waistband.  Children are naturally curious, particularly with respect to scary or forbidden things such as guns.  Students also spend time with teachers every day. They see them stand up, sit down, reach for objects and bend over countless times. In lower grades, the teacher likely squats, kneels or sits on the ground with young students.  In the upper grades, teacher move among their students.  With hundreds of pairs of curious eyes and a typical gossip network, within a week of school starting every student would know exactly which teachers are armed.

Fourth, knowledge that some teachers are armed will make every teacher a target. Even if an armed intruder believes that he/she (although it always seems to be ‘he’) knows which teachers are armed, the obvious course of action for aspiring mass murderers will be to shoot the teacher first. Remember, President Trump is only going to give bonuses to those teachers who carry weapons. All other teachers will, in effect, become target #1 without any compensation or training.

Fifth try to imagine the warped psychology of an intending mass murderer contemplating committing an atrocity at a school. From what we have learned after the fact, these individuals tend to be isolated and angry, but more importantly they believe that the act of mass murder will prove some type of point. Most expect to die. Will knowing that some teachers are armed deter such an individual or only serve to excite and thus further motivate violence? Knowing some teachers are armed may cause an intending mass murderer to modify tactics (just as the Florida shooter took steps to distract the police officer at the school by pulling the fire alarm), but knowledge that armed individuals are present will not reliably deter an attacker.

Sixth, and last, think about mass shootings in America. The Law Vegas massacre did not occur in a school. Neither did the San Bernardino attack, nor the Colorado Springs, the Southerland Springs, Texas, church shooting, the Charleston church shooting, the Aurora cinema shooting or countless others. Trump’s proposal does nothing to deter the majority of mass shootings in America. Even beyond that, there were armed and trained people present at many of those shootings, including San Berdardino, Colorado Springs, Law Vegas and others. Their presence did not deter or prevent the shooting.  Remember, President Reagan was surrounded by a half dozen or more of some of the most highly trained and dedicated weapons experts there are — Secret Service Agents.  Nonetheless, he was shot by a deranged, untrained youth.

President Trump’s proposal for arming 20% of teacher with concealed weapons is not a policy proposal; it is a talking point dreamed up by the NRA and recited verbatim by politicians that the NRA – and their backers in the arms industry dreaming of profits from classroom sales – have bought and paid for.


An Assault on American Democracy

One of the key – and very expensive at $250 billion or so – components of the GOP tax reform plan is the immediate reduction of the estate tax followed by its complete elimination in five years.  To many people, that sounds reasonable.  After all, isn’t the “death tax” a bad, un-American thing?

Actually, the opposite is true.  Very soon after the signing of the Declaration of Independence – and well before the U.S. Constitution was ratified – the Continental Congress voted overwhelmingly to eliminate certain aristocratic laws that had been inherited from Europe.  First among these was something called “primogeniture and entail,” a strange-sounding term that reflect political reality in Europe at the time.  The reason the “founding fathers” (that sounds sexist, but everyone in the Continental Congress was indeed male – a sign of the times) acted so quickly and decisively to outlaw primogeniture and entail was that it was the basis of the European aristocracy.  What the obscure-sounding term “primogeniture” referred to was the common practice – often enforced by law – of leaving the entire estate of a family to the first-born son.  Everyone else – including, of course, all daughters – were (in more modern parlance) SOL.  The “entail” part refers to the common practice among European aristocracy of including a clause in the will of an aristocrat that forbids his (it was always ‘his’) heirs from ever breaking up the estate.  The idea was to ensure that the family name and family fortune endured for eternity.

The reason that America’s “founding fathers” put such great emphasis on outlawing these practices was that they realized that not just the aristocracy but the entire concept of a class-based society rested on such laws.  Thomas Jefferson went farther than his peers in this regard, arguing that all wealth should be redistributed equally every 50 years.  His hope was that this frequent redistribution would keep democracy alive and fresh and allow what he called the “natural aristocracy” – those individuals that, for whatever reason, are more intelligent, capable and public-minded than all others – to rise to the top of society and lead our nation.  As Jefferson’s one-time adversary and life-long friend politely explained to him, the proposal might have merits but was utterly impractical, if not impossible, to implement.  Despite not agreeing with Jefferson on one of his more audacious proposals, there was essentially zero dissention among the leading figures of the American Revolution that preventing the rise of a hereditary aristocracy was one of the most important tasks facing the young United States of America.

Then, as now, the idea was not to prevent children from inheriting the family farm or continuing the family business.  The goal was to prevent the emergence of a class of wealthy overlords capable of controlling the political process in America for their own benefit.  That’s why Benjamin Franklin pushed (unsuccessfully) for the constitution of the Pennsylvania to declare concentrated wealth “a danger to the happiness of mankind.”

While neither Jefferson nor Franklin were successful, that does not mean that leaders of the Revolutionary Era disagreed with their goals.  The method for avoiding the possible disaster of American Democracy being overthrown by a European-style aristocracy was the inheritance tax.  Over the ensuing two hundred-plus years, the exact implementation of the tax has changed, as has the rate.  At times, it reach 90% on large estates, but at other times it was much lower.  Today, it is as low as it has ever been in American history.

Under current law, only estates with a net value of over roughly $5.5 million for an individual or $11 million for a couple are subject to any taxes at all.  “Net value” means that farms and small business are not taxed on the value of land or the value or all assets, but on the net value of assets minus all encumbrances such as loans, other debt, contractual obligations, etc.  What this means in practice is that 99.8% of Americans’ estates pass to heirs without any estate taxes.  Zero.  Of the remaining 0.2%, most pay relatively little.  Even though the top rate for the estate tax is 40%, the average tax paid by those who paid estate taxes is just 17%.  In 2012, total receipts from the estate tax equaled less than 1% of the $1.2 trillion inherited that year.  1%.  Another way of looking at this question is to realize that in a nation composed of roughly 325,000,000 Americans, just 400 families stand to reap 80% of the benefit from the elimination of the inheritance tax.  That’s right, the top 0.0001% of the population reaps 80% of the gains.  Looking back at the correspondence between Jefferson, Adams, Franklin and the other founders of American democracy, there can be no question that this is exactly the type of concentration of wealth that they all agreed should be avoided.

In the eyes of the people who literally wrote the Declaration of Independence and the U.S. Constitution, the GOP “tax reform” is nothing less than a frontal assault on American democracy itself.


President Trump’s Executive Order on Immigration: A Self-Inflicted Wound

First, a caveat.  On policy grounds, I do not agree with President Trump’s order banning nationals from seven predominantly Muslim countries from entering the United States.  While I agree that provisions for screening applicants can always be improved, a sudden ban on all entry will weaken America’s position in the world, embolden our enemies, help ISIS and other Islamic extremist organizations with their recruitment, and unfairly victimize literally thousands of individuals who have selflessly contributed to fighting terrorism – including Islamic extremism – around the world.  I recognize, however, that I disagree with the President on policy.  As President, Mr. Trump does not need to listen to me.

As President, however, Donald Trump does need to abide by the US Constitution and to manage effectively the operation of the government of the United States.  In issuing his Executive Order on immigration, Mr. Trump failed miserably.  Here are three specific ways he failed.

(1) President Trump could have ensured that his Executive Order (EO) was consistent with the US Constitution by excluding legal permanent residents (AKA “green card” holders) from the entry ban, but he did not.

(2) President Trump could have made an exception for “special immigrant visa” (SIV) holders, which includes persons who have demonstrated extraordinary commitment to American values by helping advance American foreign and military objectives abroad, but he did not.

(3) President Trump could have made allowances for persons who were already in the air flying from an overseas origin to the USA, but he did not.

Let’s look at each of those failures in more detail.

Legal Permanent Residents:  It is telling that when Department of Homeland Security officials first saw the text of the EO they interpreted it not to cover legal permanent aliens since it was clear to the immigration experts that such a ban cannot, under the US Constitution, be applied to permanent residents of the USA.  The experts were overruled by the White House, which specifically ordered the exclusion of legal permanent residents.  That specific policy direction from the White House was clearly unconstitutional because it denied the right of due process and equal protection to legal permanent residents of the United States.  (Note: According to Section A of the 14th Amendment to the Constitution, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)  While numerous Federal Courts quickly moved to prevent the removal of legal permanent residents, countless reports indicate that many such individuals were deported or “turned around” despite the existence of valid court orders.  Others were coerced into “voluntarily” giving up their status as legal permanent residents under various threats.  The legal mess from this part of the EO will likely drag on for months or years.  The impact on the lives of people who were summarily returned to countries where they do not live, do not have a home, and may well be targeted for politically-motivated arrest or execution is incalculable.  The impact on American security will be severe.

Special Immigrant Visa Holders:  The fact that the very first person to be detained pending expulsion under the EO was Hameed Khalid Darweesh, an Iraqi who had worked for the US military in Iraq for 10 years prior to immigrating to the USA with his family, is emblematic of this deeply flawed EO.  Mr. Darweesh was not a newly-arriving immigrant; he already lived here.  Even after immigrating on an SIV, however, Mr. Darweesh continued to work with the US military and it was in this capacity that he agreed to return on a dangerous mission to Iraq to help US military advisors working to defeat ISIS.  As he was returning from this dangerous mission undertaken on behalf of the US government, Hameed Darweesh was detained and would have been deported under the provisions of the EO had not a Federal Court quickly ruled that he must be afforded full due process under the Constitution.  Luckily for Mr. Darweesh, immigration officers in New York followed the court order.  Reports from elsewhere in the USA indicate that other permanent residents were not so fortunate.  To understand how unfair and how counterproductive the EO was as written, consider that Mr. Darweesh had survived 10 arduous years supporting US forces in Iraq.  Under SIV rules, he would have been eligible to immigrate to the USA after just two, but he stayed in Iraq to support US troops because he believed in the US cause and the US government.  Even after he finally did leave to save the lives of his family, he agreed to return to Iraq to support US troops.  As thanks, the US nearly threw him out of the country.  Mr. Darweesh is one man, but his story is the story of thousands of Iraqis.

While the Pentagon, under the leadership of General James Mattis, is preparing a list of SIV holders from Iraq as well as Iraqis who have provided invaluable assistance to US troops but who are still in Iraq, there is nothing in the EO that would allow the State Department to issue visas to those individuals or that would allow the Department of Homeland Security to admit them to the USA.  I have faith in the ability of Secretary “Mad Dog” Mattis to convince the White House to modify the EO, but that does not change the fact that it should never have been written so as to exclude people who have risked their lives to advance US security and save the lives of US service members.

People in the Air:  A basic principle of American legal system is that no law can be applied retroactively.  In other words, a city or state cannot decide 2017 to make fireworks illegal and then proceed to fine or arrest everyone who has ever lit a firecracker in the 50 years prior to that ban.  While retroactive laws are rightly acknowledged to be illegal and unethical, that is exactly what the EO did to the hundreds of people who boarded planes thinking that they had done absolutely everything right to prepare for their trip to the USA but then were treated as criminals on arrival.  Those caught in this trap included tourists, students, business people and at least one tiny infant coming to the USA for emergency open heart surgery.  A 60-year old woman was not allowed to see her severely ill mother in a US hospital for even a few minutes before being sent back.  The horror stories have been repeated hundreds of times.  These stories of personal anguish, as well as the perception that the US is ignoring one of the pillars of its own legal system, could have easily been avoided by including even a very brief grace period for persons who were already in the air.  Despite White House comments to the contrary, no one from one of the seven countries included in the ban could possibly receive a visa quickly enough to travel during that tiny window, meaning that allowing such a window carried no risk, no downside at all.  (Note:  All persons from those seven countries were already subject to “special processing” requirements – AKA extreme vetting – that takes at least weeks and usually months to complete even for a simple tourist visa.)

Why Did This Happen?

There are only two ways this could happen.  Either the White House is so unaware of the US Constitution and long history of the US working closely with foreign nationals to advance US national security that they did not realize how detrimental the EO would be, or they did not care.

Conservatives such as Karl Rove and former Vice President Dick Cheney have clearly expressed their disappointment with President Trump’s EO on immigration, stating that it could have, and should have, been handled much better.  Karl Rove, for example, specifically used the term “amateurish” to describe the drafting and roll-out of the EO.

I hope Dick Cheney and Karl Rove are correct, because the alternative explanation – that the White House knew its actions were unconstitutional and detrimental to US security but did not care – is much, much worse.


Rex Tillerson, Our Future Secretary of State

I just finished watching Rex Tillerson’s testimony with the critical (at times cynical) eye of the senior professional diplomat.  While I try to keep an open mind, I have to admit that there was a part of me that was rooting against him.  I now admit to myself that the little voice inside me was probably wrong.

It is not that I agree with everything Tillerson said.  I don’t.  As every career State Department employee knows, however, we never agree with everything our political leaders say but we nonetheless do our absolute best to implement the policies of the Administration while making sure that our political bosses know the reality of what is happening on the ground around the world.

When it comes to policy, a good diplomat needs to be as flexible as a Cirque de Solei performer.  Another trait we share with a good circus performer is that we have to always be practical, recognizing the difference between what we’d like to do and what we are certain we can accomplish.  A failed policy initiative – like a failed acrobatic stunt – is not an acceptable outcome.  (Full disclosure:  I always hated the “reset”; it was a slogan not a policy and was therefore always destined to fail.)  Rex Tillerson’s testimony demonstrated to me that he is adept at the art of the contortionist, giving me hope that he will also be adept at the art of the diplomat.  He is also clearly practical, always doing his utmost to advance the agenda he has assumed.

The one thing I really wished Secretary-to-be Tillerson had said to lay to rest concerns about his past positions on climate change, Russia sanctions, etc., is:  “When I was responsible for ExxonMobil, I did my absolute best to advance the interests of the company and its shareholders.  That was my job and I did it to the best of my ability, subjugating myself and my interests to succeed at my assigned task.  If confirmed, I will take that same approach to being Secretary of State, furthering the interests of the American people.  Whatever my personal interests may be, I will do my absolute to defend and protect the Constitution of the United States and to advance policies that increase the security and interests of American Citizens.”  While he did not speak those words, I think (or hope) that I correctly read them “between the lines.”

I’m not saying that Rex Tillerson will be our best Secretary of State ever, but he certainly won’t be the worst either.  Only history can judge that.  What hit me was that he is qualified and that his background and testimony gives me grounds for optimism.  As an incurable pragmatist (another trait of diplomats), that’s all I can ask for.


Upholding the Constitution

While I attempt to steer this blog clear of partisan political politics, sometimes politics provide the best possible examples of “Lies and Damn Lies.”

Just hours after the untimely death of Supreme Court Justice Antonin Scalia on February 13, presidential candidate Senator Ted Cruz declared that there is “80 years of precedent of not confirming Supreme Court Justices in an election year.”   Cruz used this “80 year precedent” to support his own position and to add support to the announcement already made by Senate Majority Leader Mitch McConnell that the Senate would not act upon any nomination to the Supreme Court made by President Obama.

As debate moderator John Dickerson of CBS pointed out, Cruz’s assertion was clearly factually incorrect since Supreme Court Justice Anthony Kenneth, a Reagan appointee, was confirmed in 1988, an election year.  Tellingly, the debate audience applauded Cruz’s incorrect assertion and booed Dickerson for pointing out the truth.  While Dickerson did not point it out, 1988 was not only an election year, it was an election year in which a two-term sitting President could not run for reelection.  In other words, exactly the same situation we face today.  If Dickerson had pointed out that truth, the situation may have gotten ugly.

In a February 14 interview on “Meet the Press,” Senator Cruz engaged in a bit of spin-control intended to make it seem as if he was right all along when he repeated his debate assertion with a few carefully inserted modifications.  “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”  By adding in “nominated and confirmed in an election year,” Cruz was clearly attempting to side step the unfortunate fact that – contrary to his debate night assertion – over the past 80 years no fewer than five Supreme Court justices had been nominated and/or confirmed during an election year.

Senator Cruz and his supporters appear to believe that the candidate’s restated assertion somehow put the whole issue to rest.  Nothing could be farther than the truth.

Lies, Damn Lies and Statistics

Senator Cruz’s artfully worded revised statistical assertion is factually correct; no Supreme Court justice has been both nominated and confirmed in an election year in 80 years.  The second sentence of his revised statement — the one in which he asserted that “[t]here is a long tradition that you don’t do this in an election year” —  was pure deception.  There is no such tradition nor would such a practice be allowed under the Constitution.  Precisely because the complete “correction” issued by Senator Cruz used a statistic to support a falsehood, it perfectly fits the Twain/Disraeli admonition that there are “lies, damn lies and statistics.”

Senator Cruz (among numerous others, including Senate Majority Leader McConnell) has repeatedly used this intriguing little statistic to argue that there is a “rule” or “tradition” that when vacancies occur during the final year of Presidents’ terms, Presidents uniformly and magnanimously choose not to appoint a replacement, instead leaving the choice to their successors.  That is 100% false.  For at least 120 years, no President has ever failed to nominate a Supreme Court justice when a vacancy occurred in the final year of his term.  Overall in American history, roughly one-third of all Presidents have nominated Supreme Court justices during an election year.  One-third.

You may be wondering how both of these statistics can be true – that no Supreme Court justice has been both nominated and confirmed in an election year in 80 years and that no President in at least 120 years has ever failed to nominate someone to fill a vacancy that occurred during an election year.  The answer is actually not very difficult to understand.  Despite their own personal political leanings, most Supreme Court justices strive to honor the Constitution and the intent of America’s “founding fathers” by keeping the Supreme Court out of politics – and politics out of the Supreme Court.  One way they do this is by avoiding resigning in an election year when political pressures are naturally acute.  Justices tend to resign early in a President’s term or not at all.  While I would also assume that Supreme Court justices would prefer not to die in an election year, as Justice Scalia’s death (and all of human history) shows, some things are beyond our control.

A much more honest – but less politically useful – way of citing the same fact that Senators Cruz, McConnell and others have been tossing around since the death of Antonin Scalia is that it is rather uncommon for unexpected vacancies on the Supreme Court to occur in an election year, but when they do, Presidents always nominate replacements — and the Senate always acts on those nominations.

Honoring Justice Scalia’s Legacy

Justice Scalia will undoubtedly be remembered as person who made “Constitutional originalism” a serious school of judicial thought.  Some would even argue that he originated the movement, although that assertion is difficult to “fact check” since the answer depends on exactly what constitutes “Constitutional originalism.”  Without a doubt, however, Justice Scalia took a concept that rarely entered either public or scholarly legal debate and brought it squarely into the mainstream.

According to Justice Scalia himself, the core tenant of Constitutional originalism is that the Constitution is not a “living document” that needs to be constantly re-interpreted based upon changes in society.  Instead, Scalia famously argued that “the Constitution is dead.”  He did not say that to demean the document.  The opposite is true.  In Scalia’s view, the Constitution is a document for which the meaning was permanently fixed on the date of its adoption in 1789.  In his view, the Constitution does not change with political fashion or public opinion.  It is, instead, absolutely fixed and should only be interpreted as it was originally written and intended.  The Constitutional originalist method is therefore to look at the exact words in the Constitutions and, if they are not sufficiently clear (which is very often the case given the brevity of the document), to look at the original intent of America’s founding fathers as expressed in their actions, beliefs and writings.

The uncomfortable reality facing Senator Cruz (who clerked for Justice Scalia at the Supreme Court), Senator McConnell and others is that both the words and the original intent of Article 2, Clause 2 of the Constitution are perfectly clear.  It requires that when a vacancy occurs, the President must appoint a replacement.  There is absolutely nothing in the Constitution to suggest that the President should — or even can — decline to make such a nomination if a Supreme Court vacancy occurs in an election year.  The Constitution places this requirement squarely on “the President alone,” leaving no room for the Senate or even Presidential candidates vying for his seat to interfere.

Senator Cruz and others have argued that it would be “more democratic” to allow the American people a stronger voice by making the next Supreme Court nominee an election issue.  There really cannot be any question that Senator Cruz’s argument runs completely counter to the intent of the founding fathers.  Their strongest argument in favor the adoption of the Constitution was that it created a government of three equal but very different parts.  Two of those three parts were to be elected, either directly or indirectly.  Their third part – the Supreme Court – was to remain outside the political process and not subject to politics.  America’s founding fathers were very blunt when explaining their reasoning for establishing such a non-democratic branch of government.  They were deeply concerned about the threat posed by a potential “tyranny of the majority.”  Without some type of restraint, they argued (based upon a depressingly accurate understanding of human history), would it not be completely democratic for 51% of the voters to decide to deprive the other 49% of their rights, their property or even their lives?  The Constitution was crafted not to make the United States a perfect democracy, but to make it a controlled and stable one in which minority rights are protected.  The “controls” were intended to protect liberty and individuals’ freedom from the “excesses” and “passions” of the masses — passions that reach a pitch in an election year.

If anyone needs further proof of what the founding fathers intended should happen in the event that a Supreme Court vacancy occurs in an election year, the historical evidence is beyond doubt, as shown by the case of Chief Justice John Marshall.  Shortly before John Adams, one of the leading “founding fathers” and the second President of the United States, was due to leave office, Chief Justice Oliver Ellsworth resigned.  This occurred not only in an election year; it happened in that narrow window of time after Adams’ successor, Thomas Jefferson, had been elected but before Jefferson was officially sworn in as President.  During this interim period, President Adams was a genuine “lame duck” since his replacement had already been elected.  Nonetheless, Adams nominated John Marshall on January 20, just weeks before Jefferson was due to be inaugurated as President.  Marshall was confirmed by the Senate on January 27.

For his part, President-elect Thomas Jefferson was not reticent in letting everyone know that he would like outgoing-President Adams to choose not to nominate a replacement for Ellsworth.  Politics is politics, so Jefferson’s position is easily understandable.  Despite his own desires, however, Thomas Jefferson never once asserted that President Adams did not have the right to nominate a new Chief Justice, nor did he state or imply that the Senate should not act on the President’s nomination.  When President Jefferson took office, he did not hide his chagrin at being deprived of an opportunity to name the Chief Justice but he never once attempted to block John Marshall’s assumption of his office or to recall or impeach him.  In short, through his actions Thomas Jefferson was perfectly clear on the difference between what he as a politician would like to see happen and what the Constitution required of him as President.

The precedet is clear and important.  Despite his own political desires, Thomas Jefferson took his oath of office “to preserve, protect and defend the Constitution of the United States” seriously.  As a result, he followed the letter and spirit of the Constitution even when it thwarted his own political ambitions.

Back to the Present

This brings us to the real– and the troubling– question that is at the heart of the growing political drama over Justice Scalia’s successor.  Not only is the Constitution clear, so is historical precedent.  Supreme Court justices have been confirmed by the Senate 17 times during Presidential election years, starting with nominations made by our founding fathers.

The Constitution requires the Senate to fulfill its duty for “advice and consent.”  The Senate is absolutely free to decide not to confirm a Supreme Court justice.  Indeed, over the course of American history 11 nominees have been rejected by the Senate.  The number grows if one also includes nominees who withdrew from consideration after it became obvious that they would not be confirmed.  There has never been a case, however, when the Senate refused to consider a nominee.  Never.  The reason for this is simple: the Constitution does not give the Senate the option of simply ignoring a nominee.  As Senator Mitch McConnell personally argued in 1992 and 1995, the Constitution requires that the Senate either confirm or reject a nominee.

To justify his decision to ignore his Constitutional duty to provide “advice and consent” on a President’s nominee to the Supreme Court, Senator McConnell has recently abandoned his previous reference to the unwritten (and unfounded) “Thurman rule” in favor of a newly-discovered “Biden rule.”  The story line goes that when our current Vice President was a Senator, he supported the same position McConnell holds today.  The problem is that the assertion is false.  Senator Biden never argued that the Senate should refuse to consider any nominee made by President George H.W. Bush during his final year in office.  Instead, what he actually did was urge the Senate to reject any nomination that President Bush put forward.  It is true that Senator Biden quickly accused politicians and the media of “misinterpreting” his comments and that in reality Senator Biden phelped to push through the rapid confirmation of multiple Supreme Court justices nominated by President Bush.  Nonetheless, his words in 1992 were unfortunate and inappropriate.  Even when caught up in partisan rhetorical excess, however, Senator Biden never stated that the Senate should ignore its Constitutional responsibility to provide advice and consent.  Instead, he urged that the Senate vote to reject any nominee.

Senator McConnell has moved well beyond anything suggested by Vice President (then Senator) Biden.  Realizing that the Senate would face considerable pressure to approve an undeniably qualified candidate (or embarrassment in rejecting such a candidate), Senator McConnell has stated his intention to avoid political unpleasantness by refusing to do his Constitutionally-mandated job of providing advice and consent.  In McConnell’s world, avoiding political embarrassment is clearly more important than fulfilling his Constitutional duty.  That is troubling.

The Real Danger Facing the United States

In the final analysis, the question America is facing today is much more troubling that this year’s election politics.  The real question is whether politicians are free to ignore the Constitution and violate its provisions when they find it politically expedient to do so.  The drafters of the Constitution made their views clear by defending, protecting and following the Constitution to the letter even when their personal political desires pulled them in another direction.  Do American politicians serving in the Senate today still take their oath of office seriously?  If not, the American people face a very serious threat.  While I sincerely hope that Senator McConnnell is simply engaging in the type of over-the-top political rhetoric that led then-Seator Biden to make his comments more than 20 years ago, I fear that a more fundamental shift is taking place and that our elected officials now regard the Constitution as nothing more than a useful symbol to be used when convenient and ignored the rest of the time.  That is a scary thought.