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.
Choose your plan and pay nothing for six Weeks!
A New Biden SCOTUS Rule: Shut Up
Must-Reads from Magazine
Moore, Duterte, and the NSA
On the first COMMENTARY podcast of the week, the gang (minus Noah Rothman) covers the accusations of sexual misconduct against the Roy Moore, his strange defense, and his even stranger defenders. We also talk about President Trump’s press conference with Rodrigo Duterte and the explosive news of a massive cyberattack on the NSA. Give a listen.
Choose your plan and pay nothing for six Weeks!
The rights of the survived.
Tom Mortier didn’t get a chance to change his mother’s mind or even to say goodbye. On April 19, 2012, his mother, Godelieva De Troyer, asked two friends to drive her to the Free University of Brussels. There, Wim Distelmans, Belgium’s leading euthanasia proponent and provider, gave her a lethal injection. She was 64 and in good physical health. Mortier didn’t find out until the following day. Distelmans didn’t notify him before taking his mother’s life.
Mortier was shattered. His mother’s death transformed the chemistry professor from a mild supporter of Belgium’s ultra-liberal euthanasia law into its most outspoken opponent. In a country where the “right to die” is an article of the national creed, his advocacy has been met with ridicule and stonewalling. Campaigning has forced him to relive, daily, the psychological traumas that marked his life with his mentally ill mother.
But Mortier may finally have a shot at justice. This week, the religious-liberty organization Alliance Defending Freedom lodged an appeal in his case with the European Court of Human Rights (ECHR). If accepted, the appeal could shed much-needed judicial light on Belgium’s euthanasia industry.
I interviewed Mortier in August at his modest home in the suburbs of Leuven, a university town in Belgium’s Dutch-speaking Flanders region. School was out, and two of his three children were watching television in the living room. “Going to a hospital and getting an injection isn’t much different from someone jumping in front of a train,” Mortier told me, his voice rising above the din of cartoons in the background. “Is this humane? I don’t think this is humane.”
A few weeks earlier, local prosecutors had dismissed his complaint against Distelmans, citing a “lack of evidence.” That outcome meant that Mortier had exhausted his legal options at the national level and could now take his case to the Strasbourg-based ECHR. The European Convention on Human Rights requires states to protect “everyone’s right to life.” States have a particular duty of care to vulnerable people: prisoners, children and teenagers, and those, like De Troyer, whose mental condition leaves them unable to protect their own lives.
Mortier and his lawyers contend that Belgian authorities failed to protect De Troyer’s right to life and that the failure was abetted by the country’s euthanasia law. The 2002 law, they argue, provides neither safeguards for the vulnerable nor sufficient accountability for providers. They have a formidable case.
Before it was enacted, proponents assured the public that euthanasia would be rare. Yet the number of euthanized patients has risen steadily since legalization. In 2013, the number of cases rose to 1,807, up from 235 in 2003. By 2015, the total had reached 2,021. That’s according to data from the Federal Control and Evaluation Committee, the body that is charged with overseeing the practice. The control committee suggests that euthanasia accounts for about 2 percent of all deaths in the country.
The real figure may be much larger. A March 2015 Belgian study published in the New England Journal of Medicine found that, in Flanders alone, “the rate of euthanasia increased significantly between 2007 and 2013, from 1.9 to 4.6% of deaths.” The NEJM data came from questionnaires submitted to doctors issuing death certificates, as opposed to the control committee’s self-reporting mechanism for euthanasia providers. The inescapable conclusion is that many doctors are killing their patients without the main oversight body even finding out.
Proponents of the law also insisted that it would only be applied in terminal cases, i.e., patients who were nearing death and could no longer bear the anguish associated with their conditions. Yet the law opened the door to other kinds of cases. A patient seeking euthanasia, the relevant provision reads, must be in a “medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.”
The number of patients euthanized for non-physical, non-terminal ailments has exploded since legalization. By the 2014-15 reporting period, 15 percent of total cases were non-terminal and 3 percent involved people with mental or behavioral conditions. There had been a “notable increase” in dementia cases, according to the control committee. That raises serious questions over whether physicians (or family members of the euthanized) are riding roughshod over the requirement that patients “requesting” euthanasia are “legally competent.”
Sometimes Belgians are euthanized merely because their lives take a sudden dark turn. Distelmans in 2012 authorized euthanasia for 45-year-old deaf twin brothers after they found out they were going blind. The following year, he euthanized a 44-year-old patient whose female-to-male sex change operation had failed. The patient felt that she looked like a “monster.”
Then there was Mortier’s mother. Godelieva De Troyer had suffered from depression since she was a teenager. At age 23, she married a radiologist, who gave her two children, Tom and his sister, Els. When Mortier was 3, his father divorced his mother and abandoned the family. Two years later, he committed suicide.
“My mother was always comparing me with my father,” Mortier told me. “So it was an enormous pressure on my shoulders. And it was a very negative relationship. She saw in me the same monster that my father was. In fact, she hated me. She wouldn’t admit it, but I could feel it. I was the result of her broken marriage with a husband who left her with two children.” Still, Mortier did his best to support his mother. “I was raised really always with my mother coming to me, shouting and crying, and I had to comfort her. It was never the other way around.”
But De Troyer had her ups and downs. As the New Yorker noted in a 2015 feature on Mortier’s case, De Troyer maintained a diary in which she “colored” her daily moods. The diary wasn’t always black.
Depression is an episodic illness, and events in De Troyer’s life noticeably altered her mood. There were good times—when Mortier’s children were born ,when she found a new boyfriend, and so on. At various points, she told her son, she felt like she was making progress. But the progress screeched to a halt in 2010, when her latest boyfriend broke up with her. Mortier found himself in the caretaker role once more. He spent hours with his mother on the phone and invited her to stay with him and his wife. “Please try to be a grandmother like you always said to us you wanted to be,” he would tell her.
It didn’t work, for old scars crisscrossed their relationship. Meanwhile, a busy life bore down on Mortier. He had two children, and a third would soon be on the way. In addition to his academic job at the University Colleges Leuven-Limburg, he was tasked with finding a nursing home for his grandmother—De Troyer’s mother, from whom she was estranged. He had had it. There was a rupture, and, for a while, mother and son didn’t communicate.
Then, in January 2012, De Troyer wrote an email to Mortier’s sister that was addressed to both of her children. “Dear Els and Tom,” it read:
I have requested euthanasia for psychic suffering with Prof. Distelmans. I went through the whole procedure, and I’m now waiting for the result. I have been in therapy since I was 19 years old with several psychiatrists. I asked [my regular psychiatrist] what he could do for me. His answer was: “I can listen to you and I can prescribe medication.” After that I have been searching for a way toward a life ending with dignity.
Throughout the years, I have had many sufferings. I experienced a lot of losses. I have known so much pain that I cannot live. I’m sorry that I will cause you some pain. But I can’t continue. Loneliness, and no chance to be cured after years of therapy, leave me with no life-perspective. Dying with dignity is the only option I have left in my life. I fought as hard as I could, and I did my best.
Mortier’s sister, who was living in Africa at the time, replied via email that “it isn’t easy for me to live with the idea that both of my parents will be suicides. But I can’t do more than respect your decision. I am powerless, and I need to protect myself.”
Mortier wasn’t sure how to proceed. “You ask people, ‘What would you do?’” he told me. “Some would say, ‘I would call her immediately.’ But this mother thinks that I’m the same man as my father. So she hates me. What do I have to do?”
He consulted De Troyer’s psychiatrist, who advised him to wait. He also asked experts at his university, and they, too, suggested that he keep his powder dry. One told Mortier: “I know Distelmans, and he will never approve this.” The language of De Troyer’s email was also reassuring: “I’m now waiting for the result,” she had written (my emphasis). That suggested that her request might be turned down, or that there would be an intermediate stage at which Mortier could intervene.
There was no news for three months until he received a phone call at work informing him that his mother had been killed. Hospital officials asked him to come to the morgue to fill out the paperwork necessary for turning over his mother’s remains to the department of experimental anatomy, per her request.
“I have a trauma now,” Mortier told me. “There is no care for me! Nothing! It all has to go here,” tapping his heart.
His first reaction was to start blogging about his situation. What he didn’t know was that criticizing Distelmans—winner of the University of Brussels’s 2015 Award for Humanism—meant taking on one of the most powerful and entrenched forces in Belgian society. The counterpunch came fast and strong. Mortier, an ardent secularist, was accused of being a crypto-Catholic and an emotional weakling.
Mortier “is a teacher at the Catholic University of Leuven, and this makes his [advocacy] more intentional,” wrote one editorialist. “If you can’t deal with it,” Mortier told me, “then you must be a Catholic . . . If you can’t cope with the fact that an oncologist has killed your mother because of chronic depression, then you must have emotional dysfunctionality. I thought I was a humanist. But if this is humanism, then I’m not a humanist.”
The available legal channels proved equally fruitless. The Federal Control and Evaluation Committee has only referred a single case, out of thousands since legalization, for potential criminal prosecution, according to the Alliance Defending Freedom. Distelmans, who didn’t respond to requests for comment for this article, has been a chairman of the control committee since its founding. How Belgian authorities tolerate this glaring conflict of interest is a mystery, though in the past other committee members have claimed that Distelmans doesn’t weigh in when his own cases come up for review.
There were other conflicts of interest. Under the 2002 euthanasia law, a physician considering a euthanasia request must get a second opinion from another doctor. “The physician consulted must be independent . . . of the attending physician.” Yet in De Troyer’s case, at least one of the physicians consulted, a psychiatrist named Lieve Thienpont, has published academic research with Distelmans and served alongside him as a founding member of the “Ulteam,” a practice dedicated to “death with dignity” cases (“Ul” stands for “ultimate”).
It is unclear, moreover, if the control committee ever examined De Troyer’s full euthanasia record. Every report submitted to the committee contains two portions. The first contains anonymized, general information, while a second, secret file lists the name and other personal details. Two-thirds of committee members must vote affirmative to open the secret file.
“The committee didn’t open it or touch it,” Mortier said of his mother’s report. “Even the prosecutors didn’t open the case. They asked for the files but they didn’t open it, because it’s medical secrecy . . . There is no way to get this in front of a judge.”
Now there might be a way. The real defendant in Mortier’s appeal is Europe’s barbarous culture of death.
Corrections: Tom Mortier teaches at the University Colleges Leuven-Limburg, not the affiliated University of Leuven. His father committed suicide when Mortier was 5 years old. The article misstated Mortier’s age at the time of his suicide. Mortier was never friendly with the editorialist who claimed that Mortier’s anti-euthanasia activism was inspired by Catholicism. We regret the errors.
Choose your plan and pay nothing for six Weeks!
Lost visibility, increased strength.
On Tuesday, Democrats showed that they could mobilize a coalition of voters and begin to take the country’s elected offices back from the Republicans who seized them over the course of the Obama era. You might think this would be cause for celebration among the so-called anti-Trump “Resistance.” But just 24 hours after a stunning series of Democratic victories across the country, the mood on the streets among the resisters was mixed. Perhaps that was, in part, because there were so few of them.
For months, a nationwide series of protests were planned by anti-Trump liberals to mark the one-year anniversary of his election victory. When the day came, however, attendance was sparse. The Weekly Standard’s Alice Lloyd was on the ground in Philadelphia at the site of one such event, billed as a “primal scream against Trump.” And that’s literally what the organizers planned to do: come together for one giant display of impotent rage. A roll call on Facebook suggested as many as 700 would attend, but only a fraction of that number arrived. “I was hoping for a cathartic experience,” one attendee told Lloyd, “and I’m disappointed at the lackluster turnout.” A version of these protests in New York City, where demonstrators planned to “scream at the sky” in a display of utter powerlessness, was only marginally better attended. Still, the demonstrators who protested against a “fascist America” and the coming “nuclear war” in New York struggled to fill even a tight shot of the event.
This is a pretty stark contrast to the spontaneous, grassroots demonstrations that followed the election of Donald Trump, and which shut down major metropolitan downtown areas for days. Those events were followed by the cartelization of the various “Resistance” movements, which popped up ahead of inauguration day. Some of these movements were violent and inchoate while others were placid and sympathetic. None of these self-indulgent, purgative therapy sessions were, however, politically effective. Then something changed; the streets started emptying out and #TheResistance got organized.
Studying the work of University of Maryland sociologist Dana R. Fisher for the New York Times Review of Books, Judith Shulevitz explored the transformation of this loose amalgam of malcontents into a coherent and effective political organization. The primary catalyst for early anti-Trump demonstrations was, of course, Trump. But the groups that devoted themselves to letter-writing campaigns, contacting members of Congress, dominating town hall events, and recruiting candidates up and down the ballot are animated today by a traditionally Democratic issue set. “[T]he big issues for the resistance,” Shulevitz confessed, “are health care and gerrymandering, followed by dark money in politics, education, and the environment.” Notably missing from this list is the subject that has proven the source of most of this decade’s grassroots political upheavals: the economy.
The last left-leaning movement to put as many bodies in the streets as the anti-Trump Resistance movement did in 2016-2017 was, arguably, the Occupy Wall Street movement. The character of these two factions could not have been more different. Before Occupy descended into a squalid archipelago of refugee camps typified by lawlessness, immorality, the abuse of women, and insalubrious filth, it was seen by many as a sympathetic expression of economic helplessness. The movement went global as Europe struggled with a sovereign debt crisis and the freshly ascendant Republicans in the United States promised to cut off the spigot of public funds that had flowed freely for nearly two years.
Economists and political commentators like Jeffrey Sachs heaped praise on this movement, which vindicated his long-held preconceptions about economic inequality. Democrats ranging from Minority Leader Nancy Pelosi to President Barack Obama prematurely declared Occupy both effective and compelling. Their hunger to midwife a Democratic answer to the Tea Party led these and others on the left to abandon prudence. Occupy soon became more of an embarrassment to the Democrats who had embraced it than a source of electoral strength. Indeed, Occupy was never interested in elections. Its organizers had no interest in participating in the political process. They were, in fact, generally contemptuous of the Western capitalist system and the republican governmental structures that support it.
It’s a unique irony that the modern left, which came to power on the back of an economic crisis and believed that crisis’s lingering effects would preserve their political position, is only starting to recover as the economy improves. Democrats swept the off-year elections on Tuesday with a national unemployment rate at just 4.1 percent. The number of Americans collecting unemployment benefits is the lowest it has been in 44 years. The economy has grown by a sustainable 3 percent for two consecutive quarters, and the Dow Jones Industrial Average seems to reach a new record high just about every other day. Wages remain depressed and a staggering number of Americans remain outside the labor force, but the economy is good enough that it didn’t even register with Democratic organizers. What’s more, voters do not seem to be giving the president much credit for the state of the economy. It’s as though economic considerations are a virtual non-factor.
Democratic organizers have abandoned the streets and the rabble that typically populates them in times of tumult in favor of traditional political organizing, and it has served them well. Contrary to so much conventional wisdom, this time, it’s not the economy, stupid.
Choose your plan and pay nothing for six Weeks!
Among the more confusing aspects of the uniquely confusing 2016 election cycle was the unfailing kinship evangelical Republicans displayed toward Donald Trump, a man who not only did not share their ostensible values but so frequently offended them. The thrice-married, boastfully adulterous Trump won 81 percent of born-again or Evangelical Christians, and their support has not waned. Evangelical leaders and voters alike have conspicuously refused to criticize the president, even when he deserves it. Sympathetic portraits of a culture in crisis supposedly justified this cognitive dissonance because, even if Trump weren’t perfect, he was the last bulwark against the tyranny of liberal secularism.
The expectation Trump would serve them better than Democrats has led Evangelical leaders to defend Trump’s demonstrable mendacities and brush aside his boorishness and divisiveness. Still more disturbing, when Trump urges police not to be “too nice” when making arrests or when he lumps those who oppose dismantling Confederate monuments with neo-Nazis, for example, none dares object too loudly. To speak up would be to threaten the project.
That’s immoral, and stifling yourself for fear of providing the Democrats and liberals with political ammunition is weakness. If Evangelical Christians really do feel existentially threatened to the point that they must compromise their values, they will have made a fatal error. The sad and sordid story that just broke involving the Republican Senate nominee in Alabama, Roy Moore, exemplifies this.
Moore is accused of having had improper sexual contact with several minors when he was a district attorney in his 30s. The Washington Post’s account is meticulous; four women—some on the record and some anonymous—have come forward with their stories, all of which the Post published in lurid detail. They include the allegation that Moore tried to get a girl as young as 14 drunk and molest her, and he was undeterred from making a second attempt despite having been informed of her age. Moore denies these stories and says they amount to defamation. The allegations are decades old and will likely be neither proven nor disproven. Either way, Moore’s political career is indelibly stained.
As of this writing, nearly half the Republican Senate majority has called on Moore to step down from his nomination. Some have appended the caveat “if proven true,” but others have not couched their demands at all. A decent Republican would step down, but Moore is not decent Republican. He endeared himself to his constituents by supporting religious litmus tests that would bar Muslim-Americans from public office and has advocated for making certain sexual practices illegal. Moore made a name for himself nationally by standing athwart proper standards of civic conduct. He was forcibly removed from the state Supreme Court bench after refusing multiple orders to remove a 5,000-pound Ten Commandments monument and vacated the bench again only after he was going to be removed for refusing to enforce the U.S. Supreme Court decision that legalized gay marriage. Sensing a pattern? Moore has a habit of wrapping himself in religious virtue to justify his contempt for the Constitution. That kind of fraudulence should offend the millions of moralists for whom Moore pretends to speak, but such public expressions might diminish his electoral prospects. And we can’t have that.
A generation of conservatives whose political maturation occurred in the 1990s as an army of thought leaders and columnists denounced the illegality and immorality of the Bill Clinton White House must now wake every morning in fear of who will prove themselves an irredeemable hypocrite. Every day, it seems, another of Clinton’s fiercest critics prove his moral flexibility in the Trump era. It would appear their condemnations were only ever a means to an end; the pursuit of power at any cost, even personal integrity and the trust of millions. Millions of us who were convinced of the virtue of the right’s righteous attacks on the liberal left’s moral profligacy thought they really meant it. Right now it’s hard to argue they ever really did.
Choose your plan and pay nothing for six Weeks!
Podcast: Digging out from the tsunami.
On the second podcast of the week, the COMMENTARY crew takes up the question of how bad the 2017 election results are for the GOP and what they herald for next year, whether the damage might be mitigated by a tax reform bill, and whether Democrats can be responsible stewards of their own future and keep themselves from going off the ledge into a leftist maelstrom. Then we discuss the terrifying prospect of Jeremy Corbyn’s ascension to 10 Downing Street. Give a listen.