Originally published September 21, 2018
The freedom enjoyed by the British public depends upon a sovereign Parliament, the impartiality of the courts, judicial freedom from governmental interference, and the supremacy of the common law.
–Introduction to the Study of the Law of the Constitution, 1885, by British jurist A.V. Dicey, who is widely credited with the popularization of the term, “the rule of law.”The rule of law implies that every person is subject to the law, including lawmakers, law enforcement officials, judges, and political leaders.
–The Great Chief Justice: John Marshall and the Rule of Law, by Charles Hobson, 1996.
In spite of his oath to defend the Constitution, Donald Trump has in recent months only accelerated his war on the rule of law. He persistently attacks the institutions of government and law enforcement as well as their individual members whom he views as disloyal or threatening. He encourages his base, explicitly and implicitly, to do the same. He blatantly flouts the legal and ethical constraints on his office. He undermines and threatens a legal investigation into the Russian attack on our democracy. He makes clear his inclination to pardon those in his circle who are convicted of crimes. He regularly castigates his Attorney General and anyone else in the Department of Justice who opposes him. Only one criterion exists in his personal sense of justice: what is best for Donald Trump?
If Trump is the poster child for fledgling autocrats, our best exemplar of his antithesis is obviously Robert Mueller. Eschewing the spotlight that Trump craves, Mueller has given no interviews and held no press conferences in 15 months as Special Counsel. Rather, he has single-mindedly pursued his job of thoroughly investigating Russian interference with the 2016 election. Matt Apuzzo’s excellent profile of Mueller in the NY Times reveals a man who is only interested in finding facts, following where they lead, and prosecuting any law-breakers found in the process.
Don’t you wish we could say the same for the recent history of Supreme Court Justice confirmations? Here we see the rule of law being undermined even more insidiously than by the President, who, say what you will, at least says what he thinks.
First, President Obama’s nomination of Merrick Garland was denied consideration by the majority Republicans in the Senate. Leaving the seat unfilled for nearly a year, this cynical perversion of the Senate rules paid off when Trump became president.
Now, the Kavanaugh hearings are robbing Republicans of even the pretense of legitimacy. Whether in a hurry to finish before the midterms or anxious to hide troublesome details in Kavanaugh’s record, most of the documents associated with the judge’s career have been withheld from Democratic committee members, or released too late to be studied. By some accounts, up to 90%.
Of course, the bombshell in the form of a last-minute accusation of sexual assault is the big news. And the biggest recent test of the Senate’s ability to act as if it were our highest legislative body. If Robert Mueller were chairing the committee, time would be spent to find and examine all the facts, interview the participants and witnesses, and give unbiased consideration to determine the most credible account.
Instead, we are braced for yet another display of politics and power over wisdom and fairness. We fervently hope for the latter, but are conditioned to expect the former. Fresh in our minds is the travesty of the Judiciary Committee’s handling of the Anita Hill testimony, rerun repeatedly on television the past week. Inconceivable after a momentous #MeToo year that we might witness a 2018 sequel, but not quite conceivable it will be better.
Evidence of the Republican intention to disregard the allegations against Kavanaugh was published just in the past few hours in the Washington Post.
“Here’s what I want to tell you,” (Mitch) McConnell said Friday morning at a summit for social conservatives. “In the very near future, Judge Kavanaugh will be on the U.S. Supreme Court. So, my friends, keep the faith. Don’t get rattled by all this. We’re going to plow right through it and do our job.”
Are you getting the same mental image I did? A dozen old white men trampling Dr. Christine Blasey Ford, who overcame her fear of being trampled in order to come forward with a relevant and credible story. If that is what happens, they will be trampling on the rule of law as well.
A law professor, Kate Shaw, wrote a piece in the NY Times today, titled “How Strong Does the Evidence Against Kavanaugh Have to Be?” She makes a compelling argument that even a credible allegation should be enough to disqualify him. And in her final two paragraphs she explains why failing to do so could erode the rule of law:
…the accusations against Judge Kavanaugh are directly connected to his ability to perform the job — to rule in ways that members of the public trust and accept as legitimate, whether or not they agree with him. (Trust) is critical to the court’s functioning: The public’s perception of the court as legitimate is in many ways the source of its power.
Putting Judge Kavanaugh on the Supreme Court in light of credible allegations against him could raise troublesome questions about the court’s legitimacy. And that’s a genuine problem, both for the court’s ability to function and more broadly for the rule of law.
Dr. Ford has asked for two things in order to testify next week before the committee. Safety and fairness. Anyone can understand that. Everyone feels they deserve that. In fact, safety and fairness are what we we try to achieve with the rule of law. We expect our legal system to keep us safe and treat everyone equally. We all know it sometimes fails, laws need to be changed, law enforcement needs to improve. But, if our trust in the rule of law erodes too far, the result will be unimaginable. That is why Trump must be a one term president and why we must replace our leaders with those who will prioritize people above power and politics.