Brett Kavanaugh

Historically Significant Leaders Guide Senate, House

House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell have already cemented their congressional legacies. Now those legacies may be tested as they face another deadline to forge a border security compromise that can pass Congress and President Trump will accept, avoiding another potential government shutdown.

House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell have already cemented their congressional legacies. Now those legacies may be tested as they face another deadline to forge a border security compromise that can pass Congress and President Trump will accept, avoiding another potential government shutdown.

We may be witnessing historically significant congressional leaders in Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi. What they do next in response to continuing demands by President Trump to fund his controversial border wall may affect their legacies.

History-making by McConnell, the Republican, and Pelosi, the Democrat, is as different as night-and-day and as the Senate and the House. Pelosi is known for muscling major legislation on health care and consumer protection through Congress. McConnell’s legacy is laying the groundwork for a GOP agenda outside Congress in the scores of conservative judges he has ushered through the Senate. 

The New York Times Magazine featured McConnell over the weekend, noting he recognized the parliamentary obstacles in the Senate to passing any kind of major legislation, so he turned his focus on federal judgeships. He has steered through two new Supreme Court justices and 83 lower-court judges. And he famously blocked the confirmation of Supreme Court nominee Merrick Garland during President Obama’s last year in office.

“When Brett Kavanaugh was confirmed to the Supreme Court on October 6, after McConnell played a key role in ushering him through a month of arguments over and investigations into allegations of sexual assault, the scope of the majority leader’s influence on American governance snapped into focus.”

A similar epiphany occurred when Pelosi stared down Trump over his demand for funding for his border wall that led to a record-shattering five-week partial federal government shutdown. Pelosi was hailed by supporters and critics alike as the most powerful female elected official in America.

McConnell is following in the tracks of legendary Senate majority leaders such as Lyndon Johnson, who passed the first modern-day civil rights bills in 1957 and 1960 and Mike Mansfield, the longest-serving majority leader who steered through the more famous Voting Rights and Civil Rights legislation, as well creation of Medicare and Medicaid as part of Johnson’s Great Society.

While McConnell admires Mansfield, NYT magazine says, “McConnell is the first majority leader whose career has been built on the assumption that the Senate could produce the great legislative works of his predecessors is a thing of the past.” 

He is partially responsible for his own view. As minority leader and then majority leader during the Obama presidency, McConnell was a fortress of obstruction. Or as NYT Magazine described it, “He fashioned himself as the essential impediment to Obama’s vision of a sequel to the Great Society, using tactics that were once the province of Senate factions as a strategic blueprint for the entire Republican caucus.” 

McConnell admits to being an obstructionist. “Far be it from me to complain about obstruction when I’ve been involved in it,” he said. McConnell justifies his obstruction by adding, “There was a point to it.”

His obstruction stretched beyond Obama-backed legislation to include blocking a pre-2016 election warning about Russian interference. Armed with US intelligence about Russian meddling, Obama said he would only release the information if all four of the Senate and House caucus leaders agreed to avoid any appearance of politicizing the intelligence data. House Speaker Paul Ryan, Pelosi and Senate Minority Leader Chuck Schumer agreed. McConnell said no. 

McConnell may seem an unlikely obstructionist-in-chief. Not especially photogenic or charismatic, McConnell has used “this blankness to his advantage, made it a carrier for designs greater than himself.” NYT Magazine reports McConnell was willing to take positions viewed as politically distasteful such as opposing campaign finance reform with a “shrugging willingness to play a villain when a villain was required.”

Pelosi is a more electric figure. She is the first woman elected House Speaker, the first woman to lead a party in Congress and the first Speaker to lose, then win back the position since Sam Rayburn in 1955. Her leadership in the 2018 midterm election resulted in a record-setting number of women winning election to Congress. All that cements her legacy as a historical congressional figure.

She is best known – and most often demonized – by her leadership in passing the Affordable Care Act without a single Republican vote. A Republican congressional observed her effort “as masterful a piece of legislating as I have ever seen.”

Her relentless drive to push a progressive agenda, which included a climate change bill, gets part of the blame for the GOP congressional takeover in the 2010 midterm election. 

Pelosi became Speaker in 2007 toward the end of President George W. Bush’s second term and growing public frustration with the Iraq war, which she opposed, and deepening economic recession. In the face of potential economic collapse, Pelosi mustered the needed votes for a Wall Street bailout plan in the House. 

Her steadfast opposition has posed an insurmountable obstacle, at least so far, to Trump’s border wall. Her hardball tactic of denying Trump a congressional stage during the prolonged government shutdown underscored her image as a “force of nature.” Or as Pelosi herself observed about Trump that he may unfamiliar dealing with “women in power.” [After the shutdown ended, Pelosi extended an invitation to Trump to give his State of the Union speech on February 5.]

Congress faces a three-week deadline to resolve the border security issue. Trump has resumed his demand for $5.7 for the border wall, threatening to block any legislation without it and declaring a national emergency. 

There is a bipartisan consensus in the congressional shadows that would agree to $5.7 billion or more for border technology, additional border agents, modernized ports of entry and increased Coast Guard drug interdictions. A sliver of money might even be included for physical barriers where appropriate, but not the full-fledged border wall Trump wants. 

That presages another showdown and potential shutdown, even though the one that just ended cost the nation an estimated $11 billion in lost economic activity and $3 billion in federal revenue, not to mention stress and loss of morale for federal workers who went without pay for a month. 

The odds in the showdown may be in favor of Pelosi whose approval rate has soared while Trump’s have sagged.

This time around, the fate of border security and heading off another punishing government shutdown may revolve around the historically significant figures who lead the Senate and the House. It could boil down to a battle between a skilled obstructionist and an equally skilled legislative tactician with their legacies on the line. Or, it could blossom improbably into a bicameral, bipartisan push-back for a troubled President. That certainly would be history-making for both.

 

A ‘Fringe Idea’ to Apply Term Limits to the Supreme Court

A ‘new’ debate is emerging on reforming the Supreme Court, including imposing term limits on justices. What has been a fringe issue may be moving into the mainstream and even the 2020 presidential race. Debating the size and composition of the Court could be a refreshing dip into a rich part of American history that has occurred when the nation was founded, grappled with nationhood, recovered from civil war and addressed the ravages of the Great Depression.

A ‘new’ debate is emerging on reforming the Supreme Court, including imposing term limits on justices. What has been a fringe issue may be moving into the mainstream and even the 2020 presidential race. Debating the size and composition of the Court could be a refreshing dip into a rich part of American history that has occurred when the nation was founded, grappled with nationhood, recovered from civil war and addressed the ravages of the Great Depression.

While the Capitol is buzzing with news about averting a government shutdown, criminal justice reform and a resolution to exit the Yemeni civil war, a new debate is quietly entering the stage that could radically change the US Supreme Court.

With two new conservative justices appointed by President Trump sitting on the high court, liberals are talking about ideas to apply term limits to justices, restrict when presidents can appoint new justices and add more justices to the court. Fivethirtyeight calls the conversation a “fringe idea” that is gaining mainstream attention.

As Fivethirtyeight recalls, court-packing isn’t new or novel. The Supreme Court’s size was shrunk by outgoing Federalists from six to five to prevent incoming President Thomas Jefferson from making an early appointment. Republicans quickly returned the Court to its original size and later added a seventh justice so another Republican could be named.

The Court was increased to nine justices to give President Andrew Jackson two additional seats to fill as part of his battle to end the national bank. Following President Lincoln’s assassination, a Republican Congress reduced the Court to seven to deny his successor, Democrat Andrew Johnson, any nominations that could interfere with their reconstruction plans. Franklin Roosevelt tried court-packing to remove judicial obstacles to his New Deal, but his transparent objective sank his attempt.   

The impetus for the latest spasm of interest in Supreme Court “reform” was the decision by Senate Majority Leader Mitch McConnell to deny a hearing or confirmation vote for President Obama nominee Merrick Garland in 2016. The spectacle surrounding Brett Kavanaugh’s confirmation hearings earlier this year didn’t squelch interest in reforms.

“The whole idea was born out of bleakness,” says David Faris who wrote “It’s Time to Fight Dirty,” which Fivethirtyeight describes as a “highbrow manual” to achieve institutional change. His book includes a chapter on changing the trajectory of the Supreme Court, with ideas Faris credits to Fix the Court, a group that says it is dedicated “to open up the most powerful, least accountable part of government.”

One of the group’s main ideas is to end lifetime appointments for Supreme Court justices and impose 18-year term limits. It says that idea was originally suggested by none other than current Chief Justice John Roberts, who has served on the court since 2005.

“To paraphrase a John Roberts' 1983 memo, term limits would restore an important check on the most powerful, least accountable branch of American government, would increase the rotation of justices serving and would broaden the pool of potential nominees – all positive outcomes no matter where you stand politically.” He wrote the memo while working as associate counsel to White House counsel Fred Fielding during the Reagan administration.

According to Fivethirtyeight, the only elected official to express vocal support for Supreme Court justice term limits is freshman California Congressman Ro Khanna, who took his law degree from Yale University, has taught law and co-authored an amicus brief to the Supreme Court to allow race discrimination suits under the Fair Housing Act. Khanna, who worked in the Obama administration, doubts his former boss would favor the idea, but he thinks American voters might. “Americans love term limits,” he says.

For the idea to have any political legs, Khanna explains, it must be bipartisan. He and others who are intrigued by the idea of court reforms expect the issue to rise up in the 2020 presidential election as part of a broader debate over rehabilitating American democracy.

“Every presidential candidate should talk about their relationship to the Supreme Court, what they would do to reform the court, if anything, how they would go about selecting justices, and what they would do if there was a constitutional crisis,” Khanna told Fivethirtyeight. Polling has shown that candidate Donald Trump’s promises to appoint conservative justices was a factor in securing critical support, including from evangelical religious groups.

One of the other ideas being tossed around is limiting Supreme Court nominations to the first and third year of a presidential term, an idea ironically spawned by McConnell’s defense of ignoring Garland’s nomination in Obama’s final year in office. It also has been suggested to increase the size of the Supreme Court from nine to 11 or 13 justices – “depending on how many justices Trump winds up appointing.”

Term limits can cut both ways. Political conservatives might be thrilled to see Justice Ruth Bader Ginsburg, who joined the Court in 1993 and the subject of a new film, gone. Political liberals would feel likewise about Justice Clarence Thomas, who took his seat in 1991 following a contentious confirmation hearing that featured Anita Hill and charges of sexual harassment.

A current-day debate over the Supreme Court would be like a refreshing dip into American history. The reforms would be newly expressed, but bound to the nation’s ever-evolving democracy over issues such as judicial review, racial discrimination and gender equality.

 

Congress on Sidelines as Politics, Events Pass It By

Congress returns from its summer recess, but still will be mostly on the sidelines as Trump tweets, court rulings and midterm elections dominate the daily news cycle. [Photo Credit: Associated Press]

Congress returns from its summer recess, but still will be mostly on the sidelines as Trump tweets, court rulings and midterm elections dominate the daily news cycle. [Photo Credit: Associated Press]

What goes on in Congress matters less these days than what goes on about Congress.

The five-day memorial for the late Senator John McCain drew attention to his lifelong dedication to duty, honor and principle, as well as a willingness to reach across the political aisle to compromise.

The mid-term elections have taken on amplified importance as a virtual referendum on President Donald Trump and as a contest for the heart of both the Republican and Democratic parties. Republican primaries are judged as battles between GOP moderates and Trump backers. Democratic primaries are viewed as tests of how far left the party may swing.

Trump’s hardline, nationalist approach to trade continues to ruffle feathers abroad and at home as farmers, manufacturers, workers and consumers fret over the end game. Congress ultimately will have to decide on any new trade deals, but for now is sitting on the sidelines. Congress is beginning to tackle the one-time subsidies Trump proposed to help farm producers cope with the impact of his tariffs.

The courts have played an outsized role in curbing Trump policies, including a ruling that forced reunification of families separated at the border, blocked blanket detention of asylum-seekers and elimination of DACA and delayed a rollback of fuel efficient standards.

The Robert Mueller investigation into Russian election meddling and potential Trump campaign collusion plugs along, with recent convictions, new grants of immunity and the pall of more indictments. Trump tells campaign rally audiences that a Democratic takeover of the House will lead to his impeachment. There are other investigations and lawsuits about Trump Organization business practices that also result in indictments, including of Trump family members.

Capitol Hill hasn’t gone completely quiet, however. This week will see the start of confirmation hearings on Trump Supreme Court nominee Brett Kavanaugh, amid Democratic complaints that documents have been suppressed that might shed light on Kavanaugh’s views about executive privilege and prosecution. While the hearings could be confrontational, it appears likely Kavanaugh will win confirmation.

As the end of the federal fiscal year approaches, which in recent times has been tense with the threat of a partial government shutdown, Congress has dutifully moved 12 appropriations bills for Fiscal Year 2019. No shutdown will occur, even though Trump said it might be a good thing. Congress has even been upstaged by Trump on spending as the President unilaterally blocked scheduled federal worker pay increases.

Facebook and Twitter remain in the congressional line of sight. After being blamed for turning a blind eye to false-flag accounts, the social media platforms are being accused of putting the squeeze on conservative political voices. Trump has gone further and alleged Google has manipulated search results to play up critical news stories about him and downplay positive stories.

There is an eerie silence in the halls of Congress on efforts to denuclearize North Korea, advance a major infrastructure package, act on immigration reform or respond to the looming denouement of the Syrian conflict, which many observers believe will be a massive humanitarian crisis.

Trump tweets remain the dominant story in most daily news cycles, whether he chastises the FBI and his Attorney General, whines about his treatment by the press or insults US allies or his critics. Apart from the content of the tweets, what troubles Republicans on the Hill are their unpredictability and inconsistency, which makes pursuing a congressional agenda more difficult.

The long, smothering shadow of Trump’s tweets does give congressional Republicans more time to start their own digital firestorms. Ryan Gosling’s biopic of Neil Armstrong’s first step on the moon has drawn criticism from GOP Senators Ted  Cruz and Marco Rubio for failing to feature the astronaut planting the US flag.

Cruz, who is running for re-election this fall, and Rubio said Armstrong’s achievement was a distinctively American moment, paid for by US taxpayers. Gosling defended the omission by saying Armstrong’s achievement “transcended borders and countries.”

Of course, the back-and-forth sniping has nothing to do with Congress.

The Difference a Day Can Make - Or Not.

Anyone can have a bad hair day. President Trump had a hair-on-fire day this week with two former associates headed to prison, an early congressional supporter indicted, the White House counsel talking to the special prosecutor and Facebook removing another trove of Russian fake accounts. [Photo Credit: Aaron P. Bernstein/Bloomberg]

Anyone can have a bad hair day. President Trump had a hair-on-fire day this week with two former associates headed to prison, an early congressional supporter indicted, the White House counsel talking to the special prosecutor and Facebook removing another trove of Russian fake accounts. [Photo Credit: Aaron P. Bernstein/Bloomberg]

Anyone can have a bad hair day. President Trump had a hair-on-fire day yesterday. His former campaign manager was convicted on bank and tax fraud charges, his personal attorney-fixer plead guilty to fraud and one of his first GOP congressional supporters was indicted for misuse of campaign funds.

Facebook announced it removed 652 fake accounts peddling misinformation that it said originated with Russian and Iranian sources. The New York Times reported White House counsel Donald McGahn has met in three interviews lasting 30 hours with Special Prosecutor Robert Mueller’s investigative team.

Most people would chalk that up as a “terrible, horrible, no good, very bad day.” However, Trump spent last evening performing at another of his free-wheeling campaign rallies, inciting his West Virginia audience to chant “Lock her up!” – an ironic anthem on the day two of his associates started on the road to prison.

Trump’s spokesperson downplayed the Manafort conviction – “nothing to do with the President” – and Cohen’s plea – “he said what he did as part of a plea deal.” Democrats unleashed attacks about corruption in the Trump camp and began referring to the President as an “unindicted co-conspirator.”

Despite all the buzz, it remains doubtful anything will change. Mueller’s special investigation into Russian meddling will continue. Chances of Congress starting an impeachment process are close to nil. And Trump supporters seem unfazed.

The 47-page indictment of GOP Congressman Duncan Hunter and his wife for improperly using campaign funds could put his bid for re-election in his San Diego congressional district in jeopardy. In the wake of the indictment, House Speaker Paul Ryan stripped Hunter of his committee assignments, but Hunter still may win re-election in what a local San Diego newspaper calls a “very red district.”

Some Senate Democrats canceled meetings with Supreme Court nominee Brett Kavanugh, saying it is inappropriate to move forward on a confirmation process for someone nominated by Trump after he was implicated by Cohen in a federal elections law conspiracy. However, the confirmation hearings are slated to begin in early September and it appears Senate Republicans are congealing to support Kavanaugh, along with two or three Senate Democrats up for re-election in red states.

The Manafort conviction, Cohen plea and Facebook action on fake Russian accounts are unlikely to sway Trump supporters, though they may steel the resolve of Democrats to get out their vote to retake control of the House. Even that prospect is in doubt. Polling indicates as many as 74 House seats held by Republicans could be in play in the midterm election in November, but that number is likely to drop substantially as campaigns pick up steam in the fall.

Trump’s legal team, which appears to have convinced the President to avoid an interview with Mueller’s investigators, keeps egging the special prosecutor to wrap up his investigation before the November election. Trump’s lawyers believe – or hope – nothing will stick to the President in the final report. But even if the report points to obstruction of justice and some level of conspiracy with Russians on election meddling, there is no guarantee Trump’s supporters or even Republicans in general will be swayed. The same partisan divide will remain, with even deeper trenches.

At the end of the day, the hair-on-fire day for Trump may be just another comet news cycle that glows, then fades, replaced by new political brush fires.

 

Senators Seething in DC Humidity and Heat

GOP Senate Majority Leader Mitch McConnell has annoyed Democrats, especially those facing tough re-election bids in states carried by Donald Trump in 2016, by shrinking the traditional August recess to one week, tying his colleagues to their desks in the DC heat and humidity.

GOP Senate Majority Leader Mitch McConnell has annoyed Democrats, especially those facing tough re-election bids in states carried by Donald Trump in 2016, by shrinking the traditional August recess to one week, tying his colleagues to their desks in the DC heat and humidity.

While members of the House of Representatives are enjoying their normal full month of August recess, the Senate is being forced to work in the festering hot swamp that is Washington DC.

GOP Majority Leader Mitch McConnell eliminated the time-honored August recess for all but one week despite 90-degree-plus temperatures and drenching humidity and the annoyance of Democrats who would prefer to be home to campaign. 

McConnell wants to use the extra floor time in August to press senators to confirm pending judicial nominees, make progress on appropriations bills and set the stage for Brett Kavanaugh’s eventual confirmation to the Supreme Court.

There is a political reason, too. McConnell is forcing Senate Democrats to stay in DC so they can’t campaign in their home states for the November election. It’s another savvy move by the seasoned Senate leader in this lopsided year where the Senate map strongly favors Republicans. Democrats are defending 26 Senate seats this November, while Republicans only need to defend nine seats. 

All 26 of those Democrats would much rather be back in their states solidifying their electoral support and raising money to build momentum for the general election. In particular, Democratic incumbents in Montana, Missouri, West Virginia and North Dakota are feeling especially constrained running for re-election in states that Trump won in the 2016 presidential election.

McConnell’s tactic will build momentum for a busy fall congressional schedule. Republican Leaders in the House and the Senate are looking to avoid a government shutdown and both chambers are ahead of schedule in passing FY19 appropriations bills. The Senate has passed seven of 12 appropriations bills, while the House has passed six. This is the best progress made on the appropriations front since 2000.

With the Senate in town, Supreme Court nominee Kavanaugh can meet with senators in August and lay the groundwork for a relatively quick nomination process in September.

Democrats are trying to slow confirmation by insisting on seeing the millions of pages of documents Kavanaugh wrote during his time in the George W. Bush White House, but the delay tactic could come at their own peril. Many pundits believe the closer the Kavanaugh confirmation vote is to the November election, the better it is for Republicans to motivate their political base. Democrats will have to decide between an all-out political fight with a slim chance of blocking Kavanaugh versus getting the vote over with in September. 

One more major item on the fall legislative schedule will likely be on a provision dubbed “TaxCut 2.0.” Republicans are trying to set a trap for Democrats by bringing up legislation that will permanently extend the individual tax cuts passed last December, which will expire in five years. Corporate tax cuts were all made permanent. Republicans want to get vulnerable Democrats on record on taxes close to the election. There also is a potential trap for Republicans who would be voting to deepen the federal deficit and remind voters about the tax cut, which hasn’t been as widely popular as GOP advocates predicted – or hoped.

A wild card McConnell cannot control is what Special Counsel Robert Mueller will do before the November election. His team is engaged now in a high-profile trial of former Trump campaign manager Paul Manafort and conducting ongoing negotiations to schedule an interview with the sitting President.

One possibility is Trump’s team declines Mueller’s terms for a face-to-face interview and Mueller follows through on his threat to subpoena Trump. The subpoena could trigger a court case by Team Trump challenging whether a sitting President can be compelled to testify. Depending on timing, questions surrounding a presidential subpoena could engulf the Kavanaugh nomination in the Senate because of his previous defense of expansive presidential powers, his reflections on the role of special prosecutors and the reality he could be sitting on the Supreme Court when and if the case gets that far.

Mueller is not politically tone deaf, so he may cut off any public actions on the Russian meddling investigation after Labor Day. However, it is unlikely he will wrap up the investigation before the November election.

If you can believe Trump tweets, indictments are possible for members of his family in connection with the June 2016 Trump Tower meeting, which Trump has now acknowledged was scheduled to get dirt on his opponent from Russian sources. That could scramble McConnell’s well-laid legislative schedule, adding to the irritation of his Senate colleagues who spent their summer recess tied to their desks in DC.

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Joel Rubin is a partner and leader of CFM’s federal affairs team based in Washington, DC. He has worked on Capitol Hill and now represents Pacific Northwest interests in Congress and with federal agencies.