The Deadly Variables

 

The late British Prime Minister, Harold MacMillan, when asked what he feared most politically, allegedly replied, “Events, dear boy, events.” I am not sure I would have agreed with him. Instead, I would have turned to the Greek legend of Achilles, which holds that he was dipped into the river Styx by his mother in order to make him invulnerable. His heel wasn't covered by the water and he died from an arrow wound to his heel. For me, the Achilles heel of politics is variables, the “what ifs” which, if not properly and fully explored and planned for, can bite you in the bum, never mind the heel.

The best recent example of a variable ignored is “Brexit.” Ex-Prime Minister Cameron, agreed to a referendum on the European Community, believing it would result in a strong Remain vote. Allegedly, he ordered the Civil Service not to waste time planning for a Leave vote. Some eight months after the referendum, the UK government remains in disarray, struggling to find a way through the intensely dangerous mine field of Brexit.

In America, the new President is wielding a broad sword as he wades into government. He is ruling by one Executive Order after another, seemingly in the belief that he is supreme and need not consider the legality of his actions. But he has come up against “an event,” in the guise of a federal judge who has told the Trump administration that the travel ban on Muslims seeking to travel to USA from specified countries is prima facie unlawful and will be stayed. The Federal Court of Appeal has refused an application by the administration to lift the stay. There was a full hearing yesterday. At the time of writing this Blog, the Appeals Court has reached no decision. Regardless of the ruling, the issue will not be resolved for weeks if not months, as the case will almost certainly go to the Supreme Court.

I doubt Trump considered there was even a variable. He seems to follow the dictum of Richard Nixon who, in the Frost/Nixon interviews, told David Frost that “the law is what the President says it is.” I have no doubt that in the months before the election, Trump told his billionaire friends that once he was in the White House, he would knock America into shape. What is it that makes Republican Presidents believe that being harsh and uncompromising equates with being smart? George W Bush bombed sand in Afghanistan as he embarked on the War Against Terror, something no longer mentioned. Ronald Reagan lied to Congress and the American public over the Iran/Contra affair, backing “freedom fighters” along the way.

 

In case you believe I am biased, I can point to one of the greatest Democratic Presidents, Franklin Roosevelt, who, in his first 100 days in office, ran roughshod over the American Constitution. Numerous government Bills and Executive Orders, such as the grant of monopolies and price controls, habitually offended the doctrine of Separation of Powers. It took two years for the Supreme Court to hear appeals and effectively destroy the First New Deal. Perhaps what is not so well known is that FDR’s Attorney General Joseph Jackson, the same man who prosecuted at Nuremberg, advised FDR and his cabinet that the New Deal laws were unlawful. The administration took a chance on the programs standing because they believed the country was in dire straits, much like Trump & Co seem to believe today.

 

I have to say I don’t “get” Republican Presidents. Reagan took offence at the partitioning of Berlin and constantly told the Russians, “tear down that wall.” Now Trump takes offence at Mexico and Mexicans who come into America as illegals but who keep the produce economy of America going. He has told them, “We will build a wall, a beautiful wall.” I for one would appreciate more consistency.

I’m turning to another matter which may cause Trump trouble. The President’s nominee for the Supreme Court vacancy, Neil Gorsuch, may find his confirmation hearings hazardous because the Senate Republicans may not have thought through the variables. I should say I know very little about Justice Gorsuch, therefore I shall not offer a view about his likely rulings if he is confirmed to the Court.

Usually, a candidate is carefully scrutinised by the White House before nomination. Gorsuch has received the usual Presidential accolades, telling the public he is “totally qualified” for the Bench. But don’t forget George W. Bush told the American public the same thing when he tried to get his family lawyer, Harriet Miers, onto the Supreme Court.

Gorsuch has been making the rounds of Capitol Hill before the Senate Judiciary Committee examines him in public. Assuming he passes, he will be the subject of a confirmation vote by the full Senate, where the Republicans hold a 52/48 majority. Thus Gorsuch’s nomination looks likely to succeed. What could prevent it? If the Judiciary Committee hearings disclose something seriously adverse, for example that Justice Gorsuch had an extra-marital affair, the nomination would probably fail. But this kind of disclosure is highly unlikely.

To defeat the nomination, the Senate Democrats will have to mount a filibuster and talk the nomination out. To defeat a filibuster, a cloture vote of 60 Senators is needed. Could the Republicans find eight Senate Democrats to cross the aisle? Doubtful, so will the Republicans activate what the media calls “the nuclear option,” changing Senate rules outlawing the filibuster and allowing instead a simple majority vote on the Senate floor to confirm the nomination? Such a change of rules could set a disastrous precedent because it would open the way for justices with extreme views, left and right, onto the high court. 

There is Republican chutzpah afoot. The Senate Republicans blocked an Obama hopeful, Merrick Garland, from a seat on the Court because, they said, the vacancy occurred in Obama’s last year in office and the seat should be filled by the new President and Senate. Now, Vice-President Pence says the vote must be allowed because the voice of the people would otherwise be denied. Talk about double standards.

Wise heads say Senate Republicans will not have to change the rules to get rid of the filibuster because the Democrats will not fight. Instead, they will give Gorsuch an up-or-down vote on the Senate floor.  It is not that the Democrats do not have the spine to filibuster, although some suggest Democrats lack the will to fight as hard as the Republicans. It is concern for the future which will stop them. They will want to keep their filibuster powder dry because two Democratic-leaning Justices, Ruth Bader Ginsberg and Steven Breyer, are elderly and nearing the end of their terms of office. Two vacancies might occur during Trump’s incumbency and it may be better for the Senate Democrats to run away and fight another day. There is also the variable of the mid-term Senate election in 2018.

Like I said, in politics it’s the variables that will get you. President Trump must recognise he presides over a nation of laws, that Executive Orders are the weakest form of law and that he needs to work with Congress and be more respectful of the Supreme Court and lower court judges if he wants his program to get anywhere. If he fails to heed this lesson, keeps making references to “so-called judges” and expects members of Congress to do his bidding as they doff their caps, he is in for a rude awakening.

 

I will be taking a short break and will blog again at the end of the month.