The Supreme Court confirmation process is broken. Here’s how to fix it.

Robert Bork. 2005 photo via Wikimedia Commons.

Previously published at WGBH News.

Recently I proposed to fix our state elections by adopting ranked voter choice, moving the primaries to June, and making them nonpartisan. (You’re welcome.) Today I’m back with the exponentially more difficult task of repairing our broken Supreme Court confirmation process. My plan, I think, is simple and logical. But I’d be the first to concede that it has virtually no chance of happening.

Let’s begin with this: Judge Brett Kavanaugh will almost certainly be confirmed once the FBI has finished its quickie investigation. Senate Republicans have been pining for an ultraconservative like Kavanaugh for years, and they’re not going to let credible allegations of sexual assault, false testimony about his role in the George W. Bush administration’s torture policy, and a career spent immersed in the culture of misogyny to stand in the way.

What’s next? Democrats may take over the Senate in the November election, and they’ll be spoiling for a fight. It’s more than possible that they will reinvestigate Kavanaugh and maybe even impeach him. He has given them plenty of reasons to do so. But that’s the road to chaos, and it would lead to an endless cycle of retribution. That cycle has to be stopped, and on terms that recognize what a terrible choice Kavanaugh was while leaving both parties a chance to regain their dignity.

The way to do that is to let Kavanaugh take his seat on the court (assuming the FBI doesn’t find something new and explosive or at least two Republicans decide they can’t abide him) and then look to the future. I’d do this in three steps.

1. McConnell must apologize. The root of all this madness is Senate Republican leader Mitch McConnell’s refusal even to consider Judge Merrick Garland, President Obama’s nominee to replace the late Justice Antonin Scalia. McConnell’s alleged reason was that the next president should make that choice, even though Obama had nearly a year left in his term. It was an outrageous and shocking breach of protocol, and Democrats remain rightly incensed.

Republicans like to cite the Senate’s defeat of Robert Bork, chosen by President Reagan in 1987, as the original sin that led to today’s dysfunction. That’s ludicrous. Bork was granted a hearing and was rejected for what opponents considered his extreme views. Six Republicans were among those who voted no. That’s the way it’s supposed to work. Since that time, nearly every justice nominated by Republican and Democratic presidents alike has been approved by a wide bipartisan margin.

McConnell needs to acknowledge publicly the damage he did to the Senate and negotiate an agreement that neither party will try such a maneuver again. Leaders of both major parties should restore the 60-vote margin needed to avoid a filibuster, which would encourage presidents to choose consensus candidates for the court rather than extreme ideologues. In other words, they need to return to “regular order,” the breakdown of which the late senator John McCain cited when he voted against repealing the Affordable Care Act.

2. The court should be temporarily expanded. In writing about the lunacy that the Senate may fall into if the Democrats seek revenge for Garland, some have predicted that they may try to expand the size of the court in order to offset the conservative majority. As with the possible impeachment of Kavanaugh, that seems likely to set off an endless series of tit-for-tat actions.

But by temporarily expanding the court by one seat, from nine to 10, Congress could acknowledge the outrageousness of what happened to Garland and send a clear message that it won’t happen again. Appoint a 10th justice now, and the next time a justice leaves the court, let it shrink back to nine.

3. Trump should nominate Garland. Temporarily expanding the court from nine to 10 justices accomplishes nothing if President Trump simply chooses another candidate from the list that the Federalist Society has provided him. Trump should be part of the negotiations over how to fix the process. And he, McConnell, and Senate Democratic leader Chuck Schumer should all agree that the 10th justice will be none other than Judge Garland. Garland, a moderate, would be an ideal consensus choice; before McConnell nixed him, some Republican senators had said he was someone they could support.

Trump, needless to say, would have to demonstrate that he is capable of acting for the good of the country rather than simply indulging his animal instincts. It’s not likely. Then again, nothing I am suggesting here is likely.

The tragedy is that extreme polarization and partisan warfare are tearing down every institution of government, including the Supreme Court. I think the record is clear that Republicans are to blame far more than the Democrats. But they both need to be part of the solution — if there is to be any solution.

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Yes, Dems should filibuster Gorsuch — even though it’s not really about Gorsuch

Judge Merrick Garland, left, meets Sen. Al Franken last March. Photo (cc) 2016 by Senate Democrats.

You may have missed it amid the Sturm und Drang over the fate of health care, but late last week Chuck Schumer announced that Senate Democrats would filibuster President Trump’s nomination of Neil Gorsuch to the Supreme Court.

Schumer will almost certainly fail. But it’s worth trying to stop this illegitimate nomination. And if Senate Democrats approach it in the right way, they can make an important statement about our broken system of government and what happens when only one of our major parties is willing to respect the norms and traditions that have long guided us.

Read the rest at WGBHNews.org. And talk about this post on Facebook.

‘Nevertheless, she persisted’

Elizabeth Warren at the 2016 Democratic National Convention. Photo via Wikimedia Commons
Elizabeth Warren at the 2016 Democratic National Convention. Photo via Wikimedia Commons.

Every member of the Senate, Democrat and Republican, should be lining up today to support Sen. Elizabeth Warren — and the cause of justice — by reading into the record Coretta Scott King’s 1986 letter about Jeff Session’s voter-suppression efforts. Here is NPR’s account of Warren’s showdown with Senate majority leader Mitch McConnell.

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Linda Greenhouse dissects our partisan Supreme Court

Linda Greenhouse
Linda Greenhouse

Previously published at WGBHNews.org.

Just as Congress and the broader electorate are hopelessly divided along partisan and ideological lines, so, too, is the Supreme Court.

Before the death of Justice Antonin Scalia, there were four liberals, four conservatives, and one centrist—Anthony Kennedy. All four liberals were appointed by Democratic presidents and all four conservatives (plus Kennedy) by Republicans.

And now a partisan battle has broken out over Scalia’s replacement. Despite President Obama’s choice of a respected moderate, federal appeals court judge Merrick Garland, Senate Republican leader Mitch McConnell has vowed not even to take up the nomination. Instead, McConnell insists the decision should be left to the next president.

It’s a dispiriting scenario—and a historical anomaly. As the retired New York Times Supreme Court reporter Linda Greenhouse pointed out Tuesday, we only have to look at fairly recent history to observe a very different dynamic.

After all, President Dwight Eisenhower appointed Earl Warren to the chief justice’s position, and Warren turned out (to Eisenhower’s chagrin) to be one of the most liberal justices in the court’s history. President John F. Kennedy appointed Byron White, who was liberal on civil rights but deeply conservative on social issues. And unlike today, when advocates expend most of their energy trying to persuade just one justice, Anthony Kennedy, years ago there were regularly three, four, or more justices who might vote either way.

“I’m deeply concerned as a citizen and as someone who cares about the court and about the consequences of the politicization of the court,” Greenhouse said. “The Roberts court is allowing the court to be used as a tool of partisan warfare.” As an example, she cited the court’s decision to rule on the legality of Obama’s executive order stopping the deportation of some undocumented immigrants—a decision that she said was accompanied by an overreaching aside questioning whether Obama’s order violated the Constitution.

Greenhouse, who currently teaches at Yale Law School and who still writes online commentaries about the court for the Times, spoke at the Shorenstein Center on Media, Politics and Public Policy, part of Harvard’s Kennedy School. She offered a range of dyspeptic opinions on the political environment both inside and outside the court. To wit:

• On Justice Scalia’s legacy. “I think he degraded the discourse of the court, frankly,” Greenhouse said. “His snarky dissenting opinions were ill-advised and enabled snarkiness in others. I think his, quote, originalist understanding of constitutional interpretation goes nowhere. That died with him.” She added: “He was a very colorful figure and great at calling attention to himself. He was kind of a cult figure. But I don’t think he’ll have much lasting impact.”

• On McConnell’s refusal to consider Obama’s appointment of Judge Garland to the court. “It’s truly unprecedented. … It’s totally cynical. It’s totally playing to the base,” Greenhouse said. She also disagreed with an observation by Shorenstein Center interim director Tom Patterson that Obama should have chosen a woman or a member of a minority group who would be more appealing to Democratic voters. “The brilliance of this nomination,” she said, is that the Garland choice will make Republicans “squirm” because he is exactly the sort of moderate they had earlier said they would confirm.

• On the Supreme Court’s order that the Massachusetts Supreme Judicial Court reconsider the state’s ban on stun guns. By custom, Greenhouse said, the Supreme Court would make such a decision without comment. But Justices Samuel Alito and Clarence Thomas added a caustic opinion suggesting the SJC had put a woman’s safety at risk. “Something’s not right here,” she said. “The idea is you don’t wash your dirty linen in public. … They thought they had to enlighten us with this 10-page screed.”

Greenhouse said that one way to make the court less politicized would be to put more (as in any) politicians on it. At one time during the Warren era, she said, not a single member of the court had served as a federal judge. Warren himself had been governor of California. More recently, Sandra Day O’Connor had served as an elected official in Arizona before entering the judiciary.

“I think a diversity of characteristics on the Supreme Court is very helpful,” she said.

Given that many Supreme Court decisions can go either way (after all, Greenhouse added, the reason most cases are before the court in the first place is because federal appeals courts in different jurisdictions reached opposite conclusions), a politician’s willingness to seek compromise might sometimes be superior than the certainty with which judges with legal backgrounds often act.

WGBH News contributor Dan Kennedy is a Joan Shorenstein Fellow at Harvard’s Kennedy School.

Hold the uplift, and make that shower extra hot

9780399161308_custom-4ec8d3a4e862d4dbc42dedad106a97aecb8dda44-s2-c85Earlier this month my wife and I were watching the news when Patrick Leahy came on to talk about something or other — I don’t remember what.

Leahy, 73, has been a Democratic senator from Vermont for nearly four decades. Normally that stirs up feelings that, you know, maybe it’s time for the old man to go back to the dairy farm and watch his grandchildren milk the cows.

But I had been reading Mark Leibovich’s “This Town.” And so I felt a tiny measure of admiration for Leahy stirring up inside me. He hadn’t cashed in. (His net worth — somewhere between $49,000 and $210,000 — makes him among the poorer members of the Senate, according to the Center for Responsive Politics.) He hasn’t become a lobbyist. He apparently intends to die with his boots on.

That amounts to honor of a sort in the vomitrocious Washington that Leibovich describes in revolting detail — a town of sellouts and suckups (“Suckup City” was one of his working titles), a place where the nation’s business isn’t just subordinate to the culture of money and access, but is, at best, an afterthought.

If you plan to review a book, you shouldn’t “read” the audio version. I have no notes, no dog-eared pages to refer to. So consider this not a review so much as a few disjointed impressions of “This Town,” subtitled “Two Parties and a Funeral — Plus, Plenty of Valet Parking! — in America’s Gilded Capital.”

Mark is an old acquaintance. He and I worked together for a couple of years at The Boston Phoenix in the early 1990s before he moved on to the San Jose Mercury News, The Washington Post and, finally, The New York Times. (Other former Phoenicians who’ve reviewed “This Town”: Peter Kadzis in The Providence Phoenix and Marjorie Arons-Barron for her blog.)

There are many good things I could say about Mark and “This Town,” but I’ll start with this: I have never known anyone who worked harder to improve. It was not unusual for me to leave the Phoenix in the evening while Mark was working on an article — and to come back the next morning to find him still at it. The result of all that labor is a finely honed sense of craft that most of us can only aspire to.

As virtually every reviewer has pointed out, “This Town” begins with a masterful description of the funeral service for “Meet the Press” impresario Tim Russert, an ostensibly mournful occasion that provided the media and political classes in Washington with an opportunity to carry out the real business of their community: talking about themselves and checking their place in the pecking order.

There are so many loathsome characters in “This Town” that you’d need an index to keep track of them all. And Leibovich puckishly refused to provide one, though The Washington Post published an unofficial index here. For my money, though, the lowest of the low are former senator Evan Bayh and former congressman Dick Gephardt — Democrats who left office but stayed in Washington to become highly paid lobbyists. Bayh, with his unctuously insincere laments over how broken Washington had become, and Gephardt, who quickly sold out every pro-labor position he had ever held, rise above (or descend below) a common streetwalker like Chris Dodd, who flirted not very convincingly with becoming an entrepreneur before entering the warm embrace of the film industry.

Also: If you have never heard of Tammy Haddad, Leibovich will remove your innocence. You will be sadder but wiser.

Because Mark is such a fine writer, he operates with a scalpel; those of us who have only a baseball bat to work with can only stand back in awe at the way he carves up his subjects. Still, I found myself occasionally wishing he’d grab his bat and do to some of these scum-sucking leeches what David Ortiz did to that dugout phone in Baltimore.

Mike Allen of Politico, for instance, comes off as an oddly sympathetic character despite the damage he and his news organization have done to democracy with their focus on politics as a sport and their elevation of trivia and gossip. (To be sure, Leibovich describes that damage in great detail.) I could be wrong, but it seems to me that that Mark was tougher on Allen in a profile for the Times Magazine a few years ago.

Thus I was immensely pleased to hear Mark (or, rather, narrator Joe Barrett) administer an old-fashioned thrashing to Sidney Blumenthal. It seems that Blumenthal, yet another former Phoenix reporter, had lodged a bogus plagiarism complaint against Mark because Blumenthal had written a play several decades ago called “This Town,” which, inconveniently for Sid Vicious, no one had ever heard of. More, please.

I also found myself wondering what Leibovich makes of the Tea Party and the Republican Party’s ever-rightward drift into crazyland. The Washington of “This Town” is rather familiar, if rarely so-well described. The corruption is all-pervasive and bipartisan, defined by the unlikely (but not really) partnership of the despicable Republican operative Haley Barbour and the equally despicable Democratic fundraiser Terry McAuliffe.

No doubt such relationships remain an important part of Washington. But it seems to me that people like Rand Paul, Ted Cruz and their ilk — for instance, the crazies now talking about impeaching President Obama — don’t really fit into that world. And, increasingly, they’re calling the shots, making the sort of Old Guard Republicans Leibovich writes about (Republicans like John Boehner and Mitch McConnell, for instance) all but irrelevant.

But that’s a quibble, and it would have shifted Mark away from what he does best: writing finely honed character studies of people who have very little character. “This Town” is an excellent book that says much about why we hate Washington — and why we’re right to keep on doing so. Hold the uplift. And make sure the shower you’ll need after reading it is extra hot.

How Kennedy and Obama are alike, for good and for ill

Kennedy with Nikita Khrushchev in 1961

I’m most of the way through Robert Caro’s “The Passage of Power,” the latest in his series of Lyndon Johnson biographies. And I’ve been struck by his description of John F. Kennedy’s governing style, and of the similarities to President Obama.

What they share is a daunting intelligence; level-headedness in moments of confusion and  anxiety, which served them in good stead when high-stakes foreign-policy decisions had to be made quickly (the Cuban missile crisis, the raid on Osama bin Laden’s compound); and the ability to give a terrific speech, undermined to some degree by their aloof detachment.

The downside? Kennedy comes across as utterly clueless in working the levers of power with Congress, a failing he shares with Obama. Yes, it often appears that the Republicans are going to say no to Obama regardless of what he proposes. But Caro describes a coalition of Republicans and conservative southern Democrats in the early 1960s that was no less intractable than the Tea Party Republicans of today.

Kennedy, Caro writes, concluded that working with Congress was hopeless as he watched his tax-cut bill and civil-rights legislation go nowhere. But when Johnson became president, he engaged in a combination of cajoling, flattery and threats that he mastered in the 1950s as Senate majority leader. What Kennedy had seen as the pragmatic acceptance of reality turned out to be a rationalization of his own shortcomings.

Could Obama have gotten more than he has from Mitch McConnell, John Boehner and Eric Cantor? It seems unlikely. But given Bob Woodward’s description of the president’s hapless dealings with the Republican leadership, perhaps a leader more willing to engage with the opposition could have had better results.

Not to get carried away. It’s hard to imagine a better schmoozer in the White House than Bill Clinton. Yet his tax plan was approved without a single Republican vote — and on health care, Obama succeeded where Clinton failed. (I enjoyed Clinton’s speech last week as much as anyone, but his invocation of the 1990s as a time of bipartisan cooperation was pure fiction. I assume the Big Dog hasn’t forgotten that he was impeached for his personal behavior.)

Still, it’s interesting to think about how the past four years might have been different if Obama was a little less JFK and a little more LBJ.

Photo via Wikimedia Commons, from the U.S. Department of State in the John F. Kennedy Presidential Library and Museum, Boston.

Who needs the T-word when you’ve got the H-word?

Mitch McConnell

Thanks to intemperate remarks by pundits such as Tom Friedman and Joe Nocera, and to an anonymously sourced item in Politico about Vice President Joe Biden, liberals have been on the defensive about civility following the debt-ceiling debate. It seems that folks like Boston Globe columnist Jeff Jacoby think it’s wrong to call Tea Partiers and right-wing Republicans “terrorists.”

If you want to be offended, be my guest. I agree that it’s uncivil, and frankly I’d much rather call Tea Partiers economic illiterates, which is more descriptive and more accurate. Economists explain.

But now comes Senate Republican Leader Mitch McConnell of Kentucky, who, according to the Washington Post, wants us to know that it’s perfectly all right if we want to refer to Republicans as hostage-takers and to crack wise about them shooting their victims. After all, he does. This is amazing:

“I think some of our members may have thought the default issue was a hostage you might take a chance at shooting,” he said. “Most of us didn’t think that. What we did learn is this — it’s a hostage that’s worth ransoming. And it focuses the Congress on something that must be done.”

Ah, yes. You see, McConnell is a moderate Republican, which in 2011 means you hold the hostage for ransom, like civilized folks do. Although he concedes that those who wanted to shoot the hostage have a point, too. After all, he has to keep the caucus together.

You. Can’t. Make. This. Up.