It’s Joe Biden’s mess and, apparently, President Obama thinks the vice president is obligated to try and clean it up. The administration knows that Biden’s record is an impediment to its campaign to discredit the refusal of Senate Republicans to acquiesce to the president’s effort to ensure a liberal majority on the Supreme Court before his term ends. Under similar circumstances in 1992 — a president in the last year of his term and a Senate controlled by the other party — Biden stood up on the Senate floor and declared that Democrats would not even consider anyone nominated to the Supreme Court until after the presidential election was held. But now that the shoe is on the other foot and his party wants to secure the court before the people have their say in November, Biden is stuck explaining a speech that has made the GOP grateful for the wonders of the C-SPAN video archive.
Biden has been forced to eat his words for breakfast, lunch, and dinner every day since the death of Justice Antonin Scalia gave the president an opportunity to tip the court to the left. More than Senator Chuck Schumer, who made a similar declaration about stopping any appointments from George W. Bush in the last 18 months of his term in office, Biden’s speech is the definitive argument against conducting a nasty and ideological battle over a Supreme Court nomination in the middle of a presidential election. So in order to put an end to the Republicans throwing the “Biden rule” in the face of Democratic opponents, Biden trooped to Georgetown University Law School to give a speech to put the whole thing to rest. Did he succeed? Not even close.
I won’t waste much time on Biden’s efforts to talk himself out of this predicament, and neither should anyone else. That inconvenient C-SPAN tape is still there refuting his efforts to say he didn’t say what he said in 1992, or that he didn’t mean it. Biden’s claim is that what he wanted was for the first President Bush to consult with the Democratic Senate majority before appointing another justice. But, like Schumer’s warning to the second Bush, Biden’s intent was clear. The Democrats wouldn’t go along with a Republican president getting another shot at changing the court with only months to go before an election could put a Democrat in the White House. Since replacing Scalia with a lifelong liberal Democrat like Garland would transform the court, Republicans feel the same way about Obama.
As observers who are able to put aside their partisan or ideological loyalties aside for a moment must admit, neither side is arguing from the moral high ground. Where you stand on this issue depends on where you sit and both Republicans and Democrats would be saying the opposite things today, as they did in 2007, if control of the White House and the Senate was reversed. So in order to prevail in this argument and to cajole weak-willed Republicans who worry about a backlash from the voters, to cave in, Democrats can’t just say they should get their way because they want the court to have a liberal majority. They must instead, spout high-flown arguments about democracy and the Constitution to demonstrate why they should get their way. And it is that portion of Biden’s oration that deserves at least some cursory attention.
According to the vice president, the Constitution obligates the Senate to hold hearings and a vote on anyone nominated by the president. That sounds reasonable and if there were even a remote chance that such a nominee could be confirmed then there would be no argument against doing that. But you don’t have to have a law degree from Georgetown, Delaware (as Biden has) or from Yale and Harvard (as all of the sitting members of the court and Judge Garland have), to understand that Biden is making up the part about hearings and a vote being a positive obligation of the Senate.
Such a rule is like a lot of the things that liberals have found in the margins or the spaces between the lines of the Constitution in order to invent rights that would have astonished the Founders. It doesn’t exist. The Constitution merely says that court nominees require the “advise and consent” of the Senate. If the majority of the Senate doesn’t want to confirm a nominee, and it may do so for any reason whether substantial or arbitrary, it doesn’t have to hold hearings or a vote. It may say no in any manner it likes. And if that means no hearings or a vote, so be it.
Given the stakes involved and the fact that in a few months the voters can determine which party controls the executive, legislative and judicial branches, deferring a choice until after November seems prudent. That may strike Democrats as unfair but it isn’t any different from what Biden said in 1992.
In a world where Senate deliberations about the worthiness of nominees to the Supreme Court focused solely on their legal acumen and ethics, such a delay would be unthinkable. But we don’t live in such a world and one of the principle architects of the politicization of the current confirmation process is none other than Joe Biden. He is right to point out that he presided over eight SCOTUS nominations during his time as Judiciary Committee chair and that all got hearings and up and down votes. But it was Biden along with his friend Ted Kennedy that changed the process from a dignified inquiry into a judge’s resume into a politicized circus when they turned Robert Bork’s name into a verb after President Reagan nominated him to the court. Biden and the liberal Democrats broke the court then and they can’t pretend that we can go back to the past now just because it would be to their advantage. If you don’t believe me, then listen to what President Obama said in 2006 when he filibustered Justice Alito’s nomination even though he was ready to concede that the judge was both qualified and had no ethical issues.
Nor is there any more credibility to Biden’s claim that a Republican refusal to consider Garland is an offense to democracy or the future of the court. The Constitution doesn’t specify a number for the composition of the court and while an odd number of justices will produce fewer ties, it can function quite nicely until next year when a new president and Senate can try again.
More importantly, Biden’s appeal to bipartisanship is not just hypocritical. In this case, it also distorts the intent of the Founders. The system they created was intended to create checks and balances that would thwart the efforts of an executive branch to force its will on the entire government. Gridlock may be frustrating but it is the natural consequence of divided government, which is exactly what the voters asked for when they elected a Democrat to the White House in 2012 and put Republicans in charge of the Senate in 2014. Under the new rules that Biden helped create when he politicized the confirmation process 29 years ago, that means the only way to confirm a judge to a swing seat like the one that Scalia occupied is to wait for the voters to have their say again. Far from undermining democracy, Republicans, in this case, are actually supporting it.
Of course, such a stance may not work out the GOP’s advantage if Donald Trump leads them to disaster in November and next January a President Hillary Clinton is able to send a liberal nominee to a Senate controlled by the Democrats. But since despite the disingenuous effort to sell Garland as a moderate, he would tip the court to the left anyway and Republicans can’t concede the election in advance, they have no choice but to stand their ground.
But no matter how this turns out, we need no more lectures from Biden about democracy, the Constitution or how to pick Supreme Court justices. He’s already done enough damage. If President Obama wants to persuade any wavering Republicans to bend to his will, he’d be well advised to tell Biden to give us all a break and just stop talking.
A New Biden SCOTUS Rule: Shut Up
Must-Reads from Magazine
Are the rewards worth the costs?
Universities may be non-profit, but they are big business. At the end of fiscal year 2015, for example, Harvard, Yale, and Princeton’s endowments were $38 billion, $26 billion, and $22 billion respectively. Those are correspondingly equivalent to the gross domestic products of Mongolia, Cyprus, and the West Bank and Gaza. University presidents make salaries on par with and often higher than corporate CEOs. Fundraising—traveling the world glad-handing alumni and lobbying—rather than academe has become the primary function of many university presidents.
To be fair, universities have become ever more expensive to run. Government regulations and mandates attached to the receipt of federal funds have burdened campuses with ever more administrators. So, too, has the culture of victimhood, which requires an ever-expanding support staff. Add into the mix the transformation of universities into country clubs competing to offer increasingly luxurious amenities, and management of a university requires ever more cash.
Universities pride themselves on diversity, which they too often define superficially in terms of skin color. Attracting international students to campus kills two birds with one stone: diversity plus full tuition since the foreign students accepted seldom qualify for financial aid from the university.
I am fortunate in my current job to be able to visit perhaps ten different colleges and university campuses each year, sometimes for stand-alone lectures but often for debates. During these visits, I am able to talk to students, professors, and administrators. In addition, many of my peers from graduate school are now tenured faculty, and rising through the ranks of their respective universities. Some of them have raised concern that certain dynamics surrounding ever increasing numbers of foreign students from certain countries have been counterproductive to universities’ educational mission.
The Peoples’ Republic of China sends several hundred thousand students to U.S. colleges, for example. Saudi Arabia sends 60,000. Many of these students fit in and receive a top notch education, but many also cheat on their applications. Academic corruption is fairly commonplace in both countries. In the most blatant cases, students pay others to take various exams required for college admissions, such as the Test of English as a Foreign Langue (TOEFL). Politically-connected students in each country can ensure that their transcripts and extracurricular portfolios highlight what American universities seek rather than what reality is.
Once admitted and on campus, it is clear that these students are not what they claimed to be. In some extreme cases, they cannot speak English well-enough to communicate and cannot understand what is said in class. This forces a choice upon the university: expel the sub-par students or expel them. The former maintains the school’s quality of education; the latter protects its bottom line. The unending quest to raise funds leads universities to choose the later. Some justify this practice because the tuition paid by the substandard students or their governments subsidizes the financial aid awarded to other students. Others recognize the problem but feel they have no recourse. Add into the mix the fact that some Chinese national students appear to be conducting surveillance on their peers, and the dynamics only get more complicated.
To be fair, fewer university administrations succumb to the quid pro quo of loosening standards than do those which rationalize limits to free speech and intellectual inquiry. The general pattern seems to be that middle-ranked undergraduate programs and masters programs at elite schools make the greatest compromises.
How to resolve the problem? Financial discipline among management would go a long way. So, too, would be a no-nonsense approach to standards. If necessary, universities should proctor their own exams overseas. After all, if dozens of mainland Chinese students can pay $50,000 per year to a university, that university should be able to find $5,000 to send a proctor to one or two cities in that country to oversee and mark exams and conduct in-person interviews.
American universities are facing multiple crises. The Foundation for Individual Rights in Education (FIRE) has documented threats to free speech on campus and, admirably, stands on objective principle; it does not pass its judgment through partisan litmus tests. Threats to free speech may get the headlines—and deservedly so—but as American universities increasingly become global campuses, willingness to bend standards after the fact when foreign nationals admitted do not match the abilities reflected on their applications can have a deeply corrosive effect on educational quality in America’s most elite colleges and universities.
So many foreigners—the sons and daughters of political and business elite—flock to American universities because they offer the best and broadest education. To destroy that reputation for short-term gain would be mismanagement in the extreme.
Expect the impossible.
If the 2016 presidential election cycle demonstrated anything, it was that Republicans suffer from a crippling lack of imagination. That ordeal should have established that the unprecedented is not impossible. Even now, Republicans seem as though they are trying to convince themselves that their eyes are lying to them, but they are not. The tempo of the investigation into President Trump is accelerating, and a nightmare scenario is eminently imaginable. Only congressional Republicans can avert disaster, and only then by being clear about the actions they are prepared to take if Trump instigates a crisis of constitutional legitimacy.
The events of the last 36 hours unrolled like a cascade. Late Wednesday, the New York Times published an interview in which Trump delivered a stinging rebuke for Attorney General Jeff Sessions, scolding him for recusing himself from the investigation into the campaign’s ties to Russian operatives. In that interview, Trump appeared to warn special counselor Robert Mueller not to dig too deeply into his personal finances, or else.
Hours later, Bloomberg News revealed that Mueller’s probe was investigating Trump’s business transactions and tax records—a leak surely made in response to Trump’s arm-twisting. More leaks from the investigation confirmed that former Trump campaign manager Paul Manafort was being investigated for involvement in a money-laundering scheme, a revelation made more discomfiting by the discovery that he owed pro-Russian interests $17 million before joining the Trump campaign.
With the noose tightening, the lead attorney on Trump’s personal defense team, Marc Kasowitz, and the legal team’s spokesperson, Mark Corallo, resigned. The Washington Post reported that “Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the probe.” Trump’s spokespeople insist the president has no intention of pursuing the dismissal of the special counsel investigating his campaign, but his every action indicates that this is a lie.
Prominent Republicans reacted to all this incredulously. “There is no possible way anybody at the White House could be seriously thinking about firing Mueller,” Sen. Bob Corker insisted. “We all know the president,” said Sen. Orrin Hatch. “He makes some of these comments that he really doesn’t mean.” Sen. Susan Collins was willing to go a bit farther: “It would be catastrophic if the President were to fire the special counsel.”
Off the record, however, Republican lawmakers are far less circumspect in relaying their fears about what the president is capable of doing to the republic. “Any thought of firing the special counsel is chilling. It’s chilling,” an unnamed GOP senator told CNN. “One gets the impression that the President doesn’t understand or he willfully disregards the fact that the attorney general and law enforcement in general—they are not his personal lawyers to defend and protect him,” another added.
These tepid comments for the record, with courage reserved only upon condition of anonymity, expose how Republicans in Congress have again failed to meet the measure of the moment. These are dangerous days, and it is incumbent upon Donald Trump’s party in Congress to deter the executive branch from overstepping its authority. The only way to do that is to be clear about what the consequences for that kind of transgression will be.
The Congressional Research Service defines how the president could execute a nuclear option against the independent counsel’s office. The Attorney General has recused himself from campaign-related investigations, so Trump would have to insist Deputy Attorney General Rod Rosenstein remove Mueller. If Rosenstein declined, his resignation would likely be on offer, and his acting replacement (Associate Attorney General Rachel Brand) would have to field the same request. At this point, the comparisons between the Trump White House’s behavior and that of the Nixon administration ahead of the 1973 “Saturday Night Massacre” are no longer hyperbolic.
In lieu of any ability to contain or control the special counsel’s office, Trump’s defenders have mounted a public relations campaign designed to undermine its authority and discredit its members. That will rally Trump’s diehard supporters, but the president remains unsatisfied. National Review’s Rich Lowry speculated convincingly that Trump would have little choice but to move against Mueller. Sooner rather than later, the conditions the president said would force his hand—a probe of Trump’s personal finances—will be met. Lowry observed that Trump seems to believe his tax records and business practices should be off limits and his experience has taught him “that fortune favors the recklessly bold.”
Republicans in Congress must stop comforting themselves with the notion that the worst cannot happen. They have to summon the courage to state publicly what they so freely tell reporters on background. If they are so concerned that the norms and traditions that have preserved the rule of law in this republic for 240 years are in jeopardy, they must say so. And they must say what the consequences will be for Trump, his associates, and his family if he goes too far. Republicans in office are disinclined to pursue a course of action against Trump that might jeopardize their standing with the voters who love him. None of that matters. Prioritizing their parochial careerist considerations over the best interests of their party and their country is how they got themselves into this mess.
Republicans may dislike the prospect, but it’s fast becoming time for them to start saying the “I” word if only to save the president from his most reckless impulses. The longer they tell themselves that the unthinkable is impossible, the more likely it becomes.
Are the warplane's secrets safe?
The F-35 Joint Strike Fighter is the newest generation air platform for the U.S. Air Force, Navy, and Marines. Lockheed-Martin, which builds the F-35, describes it as “a 5th Generation fighter, combining advanced stealth with fighter speed and agility, fully fused sensor information, network-enabled operations and advanced sustainment.” For both diplomatic reasons and to encourage sales, Lockheed-Martin subcontracted the production of many F-35 components to factories abroad. Many program partners—Australia, Canada, the United Kingdom, Denmark, for example—are consistent U.S. allies.
Turkey, however, is also part of the nine-nation consortium producing the plane, which gives Turkey access to the F-35’s technology. “As a program partner, Turkish industries are eligible to become suppliers to the global F-35 fleet for the life of the program. In total, F-35 industrial opportunities for Turkish companies are expected to reach $12 billion,” the warplane’s website explained. “Turkey plans to purchase 100 of the F-35A Conventional Takeoff and Landing variant. Its unsurpassed technological systems and unique stealth capabilities ensure that the F-35 will be the future of Turkish national security for decades to come.”
But is the F-35 safe with Turkey? In recent years, the Turkish government has leaked highly-classified information to America’s adversaries in fits of diplomatic pique. Back in 2013, for example, Turkey leaked to the Iranians the identities of Israeli spies in Iran. Danny Yatom, former head of the Mossad, told USA Today that the incident would damage U.S. intelligence efforts, “because we will be much more reluctant to work via Turkey because they will fear information is leaking to Iran… We feel information achieved [by Israel] through Turkey went not only to Israel but also to the United States.”
On July 19, the Pentagon criticized Turkey’s state-controlled news agency for exposing ten covert U.S. bases in Syria in a way that can enable both the Islamic State and Iranian-backed forces to target Americans. Bloomberg reported that the leak also detailed aid routes and equipment stored at each base.
Both these incidents raise serious questions about whether Turkey can be trusted with the F-35, especially given Turkey’s growing military and diplomatic ties to Russia, and the wayward NATO state’s recent cooperation with China as well. The United Kingdom’s Ministry of Defense is rightly concerned about the security implications of a plan to service its F-35s in Turkey, but such concern should only be the tip of the iceberg.
Should Turkey even receive F-35s and, to the extent the program relies on Turkish factories, is it time to stand up quickly a Plan B? To do otherwise might squander the billions of dollars already spent on the program, risk increasing President Recep Tayyip Erdoğan’s ability to blackmail the West, and potentially land America’s latest military technology on Kremlin desks.
Too many martyrs make a movement.
If the GOP is to be converted into a vehicle for politicians who evince Donald Trump’s brand of pragmatic center-right populism, Trump will have to demonstrate his brand of politics can deliver victories for people other than himself. Presidential pen strokes help to achieve that, as do judicial appointments. Nothing is so permanent, though, as sweeping legislative change. On that score, the newly Trumpian Republican Party is coming up short. If the passive process of transformational legislative success fails to compel anti-Trump holdouts in the GOP to give up the ghost, there is always arm-twisting. It seems the Republican National Committee is happy to play enforcer.
The RNC’s nascent effort to stifle anti-Trump apostasy by making examples of high-profile heretics has claimed its first victim: New Jersey’s Lieutenant Governor Kim Guadagno. The Republican is running to replace the nation’s least popular governor, Chris Christie, and the effort has been a struggle. Trailing badly in the polls and facing the headwinds associated with trying to succeed an unpopular outgoing GOP governor in a blue state, Guadagno needs all the help she can get. That help won’t be coming from the RNC. According to NJ Advance Media, the committee’s objection to helping Guadagno isn’t the imprudence of throwing good money after bad. It’s that she was mean to President Trump in 2016, and she must be punished.
“[The president] is unhappy with anyone who neglected him in his hour of need,” said a source billed as an RNC insider. The specific complaint arises from an October 8 tweet from the lieutenant governor said that “no apology can excuse” Trump’s “reprehensible” conduct on the infamous “Access Hollywood” tape. “Christie was not as stalwart as some people in the party, but at least he didn’t go against him the way she did,” the insider added.
This source’s version of events was supported by former two-term New Jersey Governor Christine Todd Whitman. “She went down there, and the (Republican National) Committee was reluctant to back the campaign in the way one would have expected,” she said. “The implication was, ‘Well you were not a Trump supporter in the primary, and so don’t expect much money.'”
This is almost certainly a pretext. Republicans are facing stiff competition and an unfavorable political environment in November’s gubernatorial elections in Virginia and New Jersey. In 2017-2018, 27 GOP-held seats are up for grabs, nine of which are in some jeopardy of falling to Democrats. Republicans are going to have to husband their resources and triage their officeholders. That’s a forgivable, if demoralizing, condition. Declaring Guadagno to have offended the leader and to be cut off from the font of Republican goodwill is not only unjustifiable, it’s terribly foolish.
If Republican women are to be punished for saying that Trump’s comments about sexually assaulting unsuspecting females were unacceptable, there are going to be a lot fewer Republican women. Moreover, the RNC has invited the perception that there is a double standard at play here. A slew of Republicans called on Trump to drop out of the race after that tape, but the RNC is unlikely to withhold support for Senators Rob Portman or John Thune when they need it. Among those calling on Trump to drop out was his own chief of staff, Reince Priebus—a fact the president reportedly won’t let Priebus forget.
Cults of personality can be bullied into existence, but they rarely outlast the personality around whom they form unless that personality can claim some lasting achievements. In lieu of any compelling rationale, the effort to remake the GOP in Trump’s image by force will only create dissidents. The ideological conservatives who once dominated the Republican Party are unlikely to make peace with the ascendant populist faction at gunpoint. And the RNC is not solely to blame for this boneheaded move. Even if the notion that Guadagno is being punished for disloyalty is a pretense, it is a response to a clear set of incentives promoted by this White House.
Maybe the most intriguing question of the present political age is whether or not conservatives in the GOP will come to terms with a man they once saw as a usurper. A heavy hand will only catalyze resistance, and Trump needs his own party as much or more than they need him. Guadagno’s gubernatorial bid is on no firmer ground today than it was yesterday, but the Republican candidate’s allies can now legitimately claim persecution at the hands of personality cultists. Too many martyrs make a movement. The White House and the Republican National Committee should tread lightly.
Podcast: Conservatism in shackles while O.J. goes free?
On the second of this week’s podcasts, I ask Abe Greenwald and Noah Rothman whether the health-care debacle this week is simply a reflection of the same pressures on the conservative coalition Donald Trump saw and conquered by running for president last year—and what it will mean for him and them that he has provided no rallying point for Republican politicians. And then we discuss OJ Simpson. Give a listen.
Don’t forget to subscribe to our podcast on iTunes.