Author: Henry Wray

The commission proposed in H.R. 3233 to investigate the January 6, 2021 attack on the U.S. Capitol could make major contributions to assessing the chaotic events of that day and recommending steps to avoid a recurrence. Most important, the commission could develop an accurate, comprehensive narrative of what actually took place and, hopefully, get to the bottom of the epic law enforcement failures that allowed a mob to take over the Capitol and temporarily prevent the Congress from executing its constitutional responsibilities. Perversely, an unwarranted fixation on Trump and disingenuous Republican objections may doom the commission legislation. This would deprive the public of valuable insights into the January 6 fiasco that an independent commission—and perhaps only such a commission—could provide.

The January 6 attack on the United States Capitol was a huge affront to our democracy and a severe national embarrassment. Clearly, many aspects of the events of that terrible day cry out for thorough, objective investigation. A bill (H.R. 3233, 117^th Cong.) to establish a commission to investigate the January 6 attack was developed through bipartisan negotiations in which Democrats made significant concessions from their original proposal. In terms of structure and staffing, the compromise version closely follows the model of the successful 9/11 Commission. The bill recently passed the House with significant bipartisan support (35 Republicans) despite the opposition of Minority Leader Kevin McCarthy and other House GOP leaders. The bill faces an uphill battle in the Senate where Minority Leader Mitch McConnell as well as a number of other Republican senators have announced their opposition.

An all too familiar and politically dubious phenomenon underlies Republican opposition: continuing fear of Trump. Many Republicans still feel the need to appease Trump; others simply want to avoid rehashing his outrageous conduct relating to the January 6 attack. No doubt a particular concern for McCarthy is being pressed to testify about his January 6 phone call with Trump in the midst of the attack. (To be fair, Democrats surely relish the prospect of a commission keeping Trump’s transgressions in the public eye.)

Fixating on Trump in relation to the commission, however, is both ironic and perverse. It is ironic because the commission probably would not develop much new evidence about him. It is perverse because defeating the commission bill based on political concerns over Trump would deprive the public of much potentially useful work on other January 6-related subjects that the commission—and perhaps only such a commission— could accomplish.

Trump’s conduct obviously is a legitimate subject of inquiry and needs to be pursued. Practically speaking, however, there is little that the commission stands to contribute on this front. In typical Trump fashion, his outrageous conduct on January 6 and the days and weeks preceding it occurred mainly in full public view; it is already widely known and notorious. Indeed, it was enough to justify his impeachment and draw strong condemnation even from Mitch McConnell. The commission might unearth some further details, such as exactly what transpired in the Trump-McCarthy phone call, but it would be hard pressed to develop fundamentally new insights. Trump and his allies would likely stonewall the commission, and the commission probably would run out of time to force their testimony before the year-end deadline for completion of its work. Additionally, an investigation focused intensively on Trump would undoubtedly bog down the commission in partisan discord and distract from more fruitful lines of inquiry.

There are two areas in which the commission should be able to make more important contributions. One is developing a comprehensive, coherent, and accurate understanding of what actually transpired before, during, and in the wake of the attack. Thus far, accounts of the chaotic events of January 6 are fragmented and often conflicting. An even more important contribution by the commission would be to sort out and analyze the monumental intelligence, security, and operational failures that allowed a mob to seize the Capitol building and temporarily bring Congress’ functioning to a halt—specifically, its constitutionally mandated duties relating to the presidential election.

The law enforcement issues relating to January 6 have been obscured by conflicting accounts, obfuscations, recriminations, finger-pointing, and deflections among the many government entities involved. There is a compelling need to penetrate through all of this in order to gain an understanding of how the massive security breakdown occurred and how to ensure that it never happens again. Congress itself is ill suited to do this investigating since the most prominent entities involved (Capitol Police, House and Senate Sergeants at Arms) operate under its direct responsibility. It is also likely that the actions of individual Members of Congress will come under scrutiny. An independent body outside of Congress thus appears to be the only source capable of credibly investigating and resolving these issues.

Given our hyper-polarized times, it is reasonable to question whether a commission whose members are appointed by Democratic and Republican politicians could function effectively on a bipartisan basis and produce a credible product. At the very least, however, the potential benefits of a January 6 commission surely justify giving it a shot. Here’s hoping that ten Republican senators find the courage to buck their craven leadership (as 35 of their House colleagues did) and push the commission bill over the finish line.

Donald Trump is toxic to the Republican Party and the American political system. Any future role for him either as candidate or kingmaker can only do further damage to our already badly fractured politics. Yet elected Republicans still try to ignore his outrages, or even worse, seek to appease him. These strategies are not only unprincipled and cowardly but politically fraught. Until Republican leaders muster the courage and common sense to confront Trump’s lies, he will remain a serious threat both to their party and our democracy.

House Republicans are poised to remove Liz Cheney from her leadership position for daring to speak the truth about Trump. This latest episode began when Trump declared that the 2020 presidential election, which he still falsely claims was stolen from him, “will be, from this day forth, known as THE BIG LIE!” Cheney responded with the obvious truth that the election was not stolen, adding that anyone making such a claim is spreading the real “BIG LIE” and “poisoning our democratic system.” She doubled down in an op-ed urging Republicans to “steer away from the dangerous and anti-democratic Trump cult of personality.”

Rep. Anthony Gonzalez, one of Cheney’s few supporters, wryly observed: “If a prerequisite for leading our conference is continuing to lie to our voters, then Liz is not the best fit.” Her likely replacement, Rep. Elise Stefanik, is clearly a better fit from this perspective. Stefanik has become a Trump acolyte who shamelessly espouses his lies. However, while purging Chaney may suit the exigencies of the moment, such pandering to Trump does not bode well for the future of the Republican Party or the broader political landscape.

Most elected Republicans surely recognize the truth of what Cheney said. Many no doubt share her concerns as well as her distain for Trump. However, they are paralyzed by fear of antagonizing Trump and his perceived formidable base of hard-core supporters. In this, Republicans fall into two camps: those, like Senate Minority Leader McConnell, who struggle to turn a blind eye to Trump’s continuing outrages in the hope that he will somehow fade away; and those, like House Minority Leader McCarthy, who actively embrace and appease Trump in the apparent belief that he is still a political asset. Both strategies are, of course, unprincipled. They are also unlikely to succeed. What they probably will do is further embolden Trump, thereby creating more problems for their party (and the rest of us) going forward.

As a matter of principle, the case for repudiating Trump is open and shut. Republicans can point to some noteworthy accomplishments during Trump’s presidency. As Cheney notes, however, the problem is Trump himself. Trump is a deeply flawed individual who spent four year proving himself morally and temperamentally unfit to be president. He lied incessantly, violated minimal norms of presidential behavior, and governed erratically. He relished being a polarizing figure and made no effort to reach beyond his base. He ultimately failed because he was too undisciplined and self-absorbed to be the leader the Nation needed during the COVID-19 crisis.

Trump reached his nadir in the aftermath of the 2020 presidential election with his bald- faced lies about widespread fraud and his encouragement of unconstitutional efforts to overturn the election result. These actions led to his second (and more serious) impeachment, which would have justified conviction and removal had he not already left office. Even McConnell declared Trump “practically and morally responsible for provoking” the January 6 attack on the Capitol with his “wild falsehoods,” describing Trump’s actions preceding the riots as “a disgraceful dereliction of duty.” He added that once the riots were underway, Trump failed to “take steps so federal law could be faithfully executed, and order restored,” and instead, “watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election!”

(McConnell has since reverted to his trademark cynicism and hyper-partisanship. When asked recently whether he would support Trump if he was the Republican nominee in 2024, McConnell replied “absolutely.” Likewise, McCarthy initially urged Trump “to accept his share of responsibility” for the attack on the Capitol, but quickly resumed his obsequiousness toward Trump.)

The current Republican strategies for dealing with Trump are politically short-sighted as well as unprincipled. While they can sideline Cheney, Republicans cannot avoid a reckoning over Trump indefinitely. As the next elections approach, their candidates will surely be pressed hard either to repudiate or embrace him both by their Democratic opponents and by Trump himself. Trump, of course, will insist that earning his support requires first and foremost endorsing his lies.

It’s hard to envision siding with Trump as a winning political strategy in any election contest that turns on voters beyond his base. Trump left office as one of the most unpopular presidents in recent history. He scored the lowest first-term average approval rating of any modern president (41%), and fell into the 30’s at the end of his term. Not only was he one of the few recent presidents to fail reelection but Republicans lost control of both the House and Senate on his watch. His tantrums are widely blamed for Republican losses of the two Senate seats in Georgia runoffs. There are indications that he is losing ground even among Republicans since leaving office.

Trump particularly figures to be an albatross in the 2022 Senate elections. Six of the nine Senate races currently rated as potentially competitive are in states Biden won in 2020. Continued allegiance to Trump will probably also impede Republican chances of regaining the presidency in 2024. Even if Trump won the Republican nomination, he would have little chance of being elected again. It’s equally doubtful that a would-be Trump clone such as Sen. Hawley or Cruz could win.

A better political strategy for Republicans is to focus on policy positions likely to appeal to a broader range of voters than Trump’s base and to promote candidates who don’t carry Trump’s massive baggage. Trump resonated with millions of disaffected voters who are not faring well economically and feel that the elites of both parties ignore their interests. While this constituency is often denigrated as consisting only of angry “working class” whites, it is coming to include more minorities as well. Candidates who appeal to these voters in a less divisive way than Trump could have even greater success. Such candidates could also attract the many voters who lean toward traditional conservative policies and values or disfavor liberal overreach but couldn’t bring themselves to pull the lever for Trump.

The first step is for sensible Republicans, indeed all non-masochistic Republicans, to just say no to Trump.

Criticism of the new Georgia election law is wildly exaggerated and bears little resemblance to its content. While the motives underlying the law may be suspect, its provisions are unremarkable and similar to those of other states. It contains nothing that plausibly resembles “voter suppression” or “Jim Crow” and is unlikely to deter citizens interested in voting. On the other hand, politicization and misrepresentation of the law could further discourage those chronic non-voters who are already turned off by our fractured politics.

Donald Trump is gone but our polarized, hyper-partisan, and often dishonest political discourse continues. One example is the furious attack on a recently enacted Georgia election law by Democrats and much of the media. They portray the law as a racist voter-suppression measure that is equivalent to, or even worse than, the notorious “Jim Crow” laws that once prevailed in the segregated South. President Biden led the charge with gross exaggerations and outright falsehoods about the law that would be the envy of Trump. He absurdly described the law as “Jim Crow on steroids,” mischaracterized a provision dealing with water for voters, and repeatedly asserted the patently false claim that the law reduces voting hours. (It actually expands them.) He strongly encouraged Major League Baseball to move its all-star game out of Georgia in response to the law, which it promptly did. Taking their cue from such polemics, a number of corporate executives also condemned the law.

An examination of the content of the law tells a different story. The most remarkable thing about the Georgia law is how unremarkable it is. Like every state election statute, the Georgia law strikes a balance between ease of voting and safeguards to ensure the integrity of the vote. It contains provisions that make voting more convenient as well as provisions that impose new security-related requirements on voters. (See, e.g., here, here, and here.) Most provisions of each kind resemble those found in the laws of many other states, both “red” and “blue.”

Here are some of the provisions that have encountered the most withering criticism:

• Applications for mail-in ballots will not be sent automatically to all registered voters. Some states send unsolicited applications to all voters; most do not.
• The earliest date for requesting mail-in ballots is reduced from 6 months to 78 days before an election. Whatever the reason for this change, 78 days seems more than ample time.
• A numerical ID (e.g., driver’s license number) is required for mail-in ballots, as opposed to relying on more time-consuming and subjective signature matching to verify them.
• Early voting in runoff elections is reduced from three weeks to one week, which seems adequate since runoffs involve fewer candidates and ones who are already familiar to voters.
• Drop boxes for depositing completed ballots, which were not allowed at all before 2020, are permanently authorized but they are limited in number, must be located inside government offices, and are available only during regular office hours. The latter two provisions obviously enhance security over the open-air, unmonitored drop boxes that were available 24-7 during the 2020 election.  
• Non-election officials cannot give food or water to voters within 150 feet of polling places. This provision has been widely seized upon by critics and mischaracterized as an inhumane “ban” on water for voters stuck in election lines, particularly minority voters who tend to face longer lines. (E.g., here.) It is a variant on laws in most states that prohibit partisan electioneering within certain distances of polling locations. The Georgia law specifically authorizes election officials to make water available to voters. The law also contains several provisions aimed at the truly humane and more important goal of reducing voter wait times.
• The law provides the state greater authority over local election officials. Cynical critics assert that this will enable state officials to fraudulently alter voting results. Proponents view these provisions as enhancing accountability for the efficient conduct of elections, such as by reducing voter waiting times and tabulating votes more quickly.

The above provisions and others highlighted by critics seem reasonable on their face and do not  appear to impose significant barriers for voters, minority or otherwise. (Assertions that minority voters are less capable of complying with voting rules are condescending if not themselves racist.) None of the provisions plausibly resembles “voter suppression” or “Jim Crow.” It is noteworthy that Georgia election official Brad Raffensperger, who was widely praised for his honesty and courage in rejecting Trump’s false claims of election fraud in 2020, strongly supports the law. He equates the disinformation being spread about the law to Trump’s outrageous disinformation campaign.  

In one of the few insightful media contributions, New York Times election expert Nate Cohn observes that the Georgia law is unlikely to significantly affect turnout and could even increase it. He concludes: “In the final account, it will probably be hard to say whether [the law] had any effect on turnout at all.” Citing several studies, Cohn points out that convenience of voting is simply not as important as often assumed because voters can readily adapt to most requirements.  

The intense controversy over the Georgia law stems less from its substance than from false narratives promoted by both political parties. Many Republicans shamefully embraced Trump’s false claims of widespread fraud in the 2020 election. With considerable justification, Democrats view the Georgia law and similar initiatives in other states as a response to Trump’s “big lie.” However, Democrats go to the other extreme and treat the absence of proof of widespread voter fraud as somehow meaning that most election security measures are per se unnecessary and therefore must be efforts to suppress the vote. In this regard, they are pushing legislation known as the “For the People Act” (H.R. 1 and S. 1, 117^th Cong.) that would largely federalize election procedures and supersede many security features of state law.

Political strategies over election law also have less to do with citizens who want to vote than the approximately one-third of citizens eligible to vote but who show no interest in doing so. Ironically, these competing strategies (Republicans favor security; Democrats favor ease of voting) flow from two dubious impressions that both political parties share. One is that most chronic non-voters would favor Democrats over Republicans. However, studies suggest that they would likely add fairly equal shares of Republican and Democratic votes. The other is that making voting even easier than it is now would get many of these folks to the polls. However, opinion surveys indicate that inconvenience is not a major reason why they decline to vote. Instead, the main reasons are cynicism regarding our political system and simple lack of interest. The false narratives and misimpressions now indulged by both parties and abetted by the media serve only to re-enforce the cynicism and apathy of these non- voters

If our politics were less dysfunctional, both parties would abandon their false narratives and work together to craft neutral election rules that ensured both ease and security of voting. They could then rely on promoting their respective policy agendas as their primary means to attract and retain voters.

The textualist case against trying Trump is compelling. A straightforward, holistic interpretation of the Constitution’s impeachment provisions offers no support for including persons other than specified officeholders. Proponents of extending impeachment to former officials take isolated constitutional provisions out of context and read too much into them. Originalist considerations also weigh against trying him. While former officials were impeachable under English law, the framers of the Constitution departed fundamentally from the English model regarding persons subject to impeachment. Historical and policy arguments favoring inclusion of former officials are weak at best, and in any event, cannot override the plain meaning of the constitutional text.

In the final analysis, three key points cannot reasonably be disputed:

• The Senate would try Trump not as President but as a private citizen.
• The Constitution grants Congress no power to discipline private citizens; that is the exclusive function of the justice system.
• There is no clear basis (to say the least) to read into the Constitution a sweeping exception for former presidents and the many other private citizens who once held public office.  

The second Trump impeachment project is losing steam politically. Forty-five Republican senators recently voted against a trial, thereby confirming that conviction is out of reach. The Biden Administration and Senate Democrats show little enthusiasm for this exercise and are looking for ways to get it over with as quickly as possible. Meanwhile, debate over the constitutionality of continuing the impeachment process is intensifying. New op-eds pro and con appear daily (some referenced here). One recent statement in support boasted 150 signatures. While proponents of going forward have stronger numbers, they have the weaker case.

Textualist arguments

Proponents struggle to overcome the seemingly clear language of the Constitution limiting impeachment, trial, and conviction to incumbent officials. Article II, section 4 of the Constitution delineates those persons subject to impeachment as follows:

“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Trump obviously no longer fits this description. He will not be tried or convicted as “President” and he cannot be “removed from office” since he holds no office. Thus, Article II, section 4 is now inapplicable to him by its express terms. The constitutional requirement that the Chief Justice preside “when the President of the United States is tried” affirms that Article II, section 4 means what it says and does not extend to former presidents. The framers included this requirement to avoid the conflict of interest that would arise if a president’s potential successor, the vice president serving as president of the Senate, presided. This applies only if the “President” being tried is the incumbent. Indeed, Chief Justice Roberts will not preside at a second Trump trial.

Proponents rely on another constitutional provision as authority to proceed against him. Article I, section 3, clause 7 states:

“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” 

They maintain that while a former president cannot be removed, disqualification remains possible. However, they read far too much into the provision. The language referencing disqualification is on its face nothing more than a limitation on “judgments in cases of impeachment” under Article II, section 4. It leaves Congress the option to add disqualification to removal, which follows automatically upon an impeachment conviction, but prohibits Congress from imposing any further sanction. The language gives no hint of conferring additional, free-standing jurisdiction on Congress to impeach and disqualify anyone other than a person who is subject to and removed under Article II, section 4. It says removal “and” disqualification, not removal “or” disqualification.

Several proponents take a different tack. They concede that only incumbent officials designated in Article II, section 4 are impeachable. However, they maintain that the Trump case can go forward because the House impeached him before his term expired. While the House had jurisdiction to impeach Trump during his presidency, how can the Senate act now that he is no longer in office? They find this authority in the Senate’s power under Article I, section 3, clause 6 to try “all” impeachments.

This is too heavy a lift for the word “all.” It cannot be taken literally to mean that the Senate has power to try whatever impeachments the House sends its way. The Senate dismissed the very first impeachment it received for lack of jurisdiction. (See below.) The most natural reading of Article I, section 3, clause 6 is that it does no more than assign the Senate sole and exclusive responsibility to try impeachment cases. It cannot reasonably be construed to enlarge the Senate’s authority to try impeachment cases or to convict anyone beyond the scope of Article II, section 4. The Constitution requires a two-step process of impeachment by the House and conviction by the Senate to impose any sanction. While Trump was subject to the House’s impeachment power as president, the fact remains that he is not now an officer subject to the Senate’s power to try and convict under the plain terms of Article II, section 4. It’s hard to see how the House’s jurisdiction has any bearing on the Senate’s.

One other, rather facile, argument is that the disqualification sanction, when imposed, applies only to former officials since any impeached incumbent is automatically removed from office by virtue of an impeachment conviction. But this ignores the obvious point that a valid impeachment conviction is prerequisite to disqualification of anyone and begs the question of how a former official is subject to Senate conviction under Article II, section 4.

In sum, the natural and holistic interpretation of the language and structure of the Constitution’s impeachment provisions from a textual viewpoint is straightforward: Article II, section 4 is the key substantive provision. It establishes who is subject to impeachment, trial, and conviction; states the grounds for impeachment; and mandates removal from office upon conviction. The other constitutional provisions cited above set limits and establish impeachment processes, but they do not expand the jurisdiction or authority of Congress beyond what is stated in Article II, section 4. Proponents of going forward read these other provisions in isolation and out of context, exaggerating their significance in the overall constitutional scheme.

Originalist arguments

Many proponents, including some conservatives, argue that reading former officials into the  impeachment language is supported by the public meaning of impeachment at the time the Constitution was adopted. They assert that the framers of the Constitution looked to the English model and understood that former officials were impeachable under English practice. One academic maintains that it would have been “obvious” to the framers that the impeachment power covered former officials since they “imported” this power from England. The proponents note further that the English case of Warren Hastings, who had been impeached as a former official, was ongoing at the time of the constitutional convention and was referred to by the framers.

The originalist argument might have some force if the framers had imported the English impeachment power wholesale, but they did not. While they adopted some English features (grounds for impeachment, indictment by one chamber of the legislature and trial by the other), what they wrote into our Constitution bears little resemblance to the English model on the central issue here: who is impeachable.

The English Parliament of yore had power to impeach “any peer or commoner.” Thus, its impeachment power reached not only incumbent government officials but also former officials as well as private citizens having no current or previous connection to the government. Punishments also extended well beyond removal and disqualification up to imprisonment or death. Impeachment was one of several tools by which Parliament could inflict punishment of any kind on any citizen. Another tool was the bill of attainder. Thus, Parliament exercised virtually limitless power to dispense justice to perceived wrongdoers. It once went so far as to have a deceased former official exhumed, hung, and beheaded.   

The framers took a fundamentally different approach by limiting impeachment to specified government officials and restricting its consequences to the non-lethal and largely remedial sanction of removal with the option of disqualification. In a total departure from the English model, they eschewed any role for Congress in disciplining private citizens. The circumscribed impeachment power clearly excludes private citizens and Article I, section 9 prohibits bills of attainder.

Actually, the understanding of the framers regarding impeachment of former officials is unknowable since they never discussed this subject during their deliberations. (The framers’ references to the Hastings case focused on the grounds for impeachment, not the fact that he had left office.) If any inference can be drawn, however, the more plausible one given the framers’ much narrower view of impeachment than the English is that they would not have envisioned it applying to any private citizens, even those who were once government officials. Proponents also note that some states provided for impeachment of former officials in the pre-Constitution era. However, they did so by explicit language in their governing law. Presumably, the framers of the federal Constitution would likewise have included explicit language if they meant to follow this model.

Congressional precedent

Proponents point out that Congress has in fact impeached and tried former officials. This is true, but the precedent value is limited. There are only two cases in the history of the United States in which the Senate tried officials who had resigned; neither resulted in conviction. One, the very first impeachment, involved a former senator, William Blount, whose case was dismissed by the Senate for lack of jurisdiction. It’s unclear whether the dismissal was based on the grounds that he was no longer in office or that senators were not subject to impeachment. The other involved an ex-secretary of war, William Belknap. After lengthy debate, the Senate voted 37-29 that he was subject to impeachment. However, lingering doubt over his impeachability was the decisive factor in Belknap’s acquittal.

These two cases also represent the exception rather than the rule. Congress usually ends impeachment proceedings if the official subject to them resigns. One prominent example is Richard Nixon. Furthermore, Congress has never before attempted to try any official after completion of his term. In any event, Congress’ assertion of power to impeach and convict former officials does not make it so. The courts would have the final say. While courts steer clear of reviewing how Congress exercises its impeachment authority, they probably would adjudicate a lawsuit challenging whether such authority existed in a particular case.

Policy arguments

Proponents of impeaching former office holders rely heavily on policy arguments. They claim that the value of disqualification by impeachment as a deterrent and accountability mechanism would be lost if officials could escape it by resigning, or as here, if the misconduct occurred too late in an incumbent’s term to allow completion of the process. However, disqualification ranks low on the scale of potential deterrents. The justice system offers far more serious punishments, and the same constitutional provision that limits impeachment remedies affirms that former officials remain subject to those punishments. While impeachable conduct need not be criminal, it usually is. In this case, Trump could possibly face prosecution for actions covered by the specific impeachment as well as his other dubious conduct.

Furthermore, extending impeachment to former officials presents anomalies of its own. It would subject private citizens including ex-presidents and numerous others to potential impeachment and disqualification for the rest of their lives simply because they once held federal office. In fact, there is no obvious limiting principle that would even restrict their impeachment to conduct occurring during their time in office.

Finally, as far as accountability goes, there is another, better way for Congress to hold Trump accountable than a largely partisan impeachment that is bound to fail: a concurrent resolution of censure. This is clearly constitutional and, if strongly but reasonably worded, would surely attract enough bipartisan support to easily pass both houses of Congress. It would also send a more unified and unifying message. Unfortunately, the chances of gaining significant Republican support for this alternative will fade if the dubious and divisive impeachment effort continues.  

The impending second Senate impeachment trial of Donald Trump poses a number of legal, political, and practical issues. One issue flying somewhat under the radar is who will preside. The answer will certainly impact how the trial is perceived and may even affect the outcome.

Chief Justice John Roberts presided over Trump’s first impeachment trial pursuant to Article I, section 3 of the Constitution, which requires the chief justice to assume this role “when the President of the United States is tried.” In the second impeachment, however, Trump will be tried as a private citizen, not as president, thus making this provision inapplicable by its terms. The rationale for having the chief justice preside likewise will not apply. The framers included this provision for the purpose of avoiding the obvious conflict of interest that would arise if an incumbent president’s potential successor, the vice president serving as president of the Senate, presided. This, of course, has no relevance to Trump’s second trial. Kamala Harris, not Mike Pence, will be Vice President and there will be no change in the presidency since removal from office is not on the table.  

Without Article I, section 3, there is no apparent legal authority for the chief justice to preside at the impeachment trial. To the contrary, having the head of the judicial branch preside over the Senate except as specifically required by the Constitution would seem to violate the constitutional separation of powers. Finally, even if Roberts somehow could opt to preside if requested by the Senate, he probably would want no part of this exercise and would respectfully decline. With Chief Justice Roberts out of the picture, Vice President Harris would be in line to preside. Alternatively, if the Biden Administration was reluctant to participate directly in this fraught and potentially distracting endeavor, Senate President Pro Tempore Patrick Leahy or another senior Democratic senator could be chosen to officiate.

The  above considerations are significant in at least three ways. First, the fact that Article I, section 3 is so incongruent here is another indication that the Constitution was not designed for impeachment of former presidents. Second, substituting a politician for the chief justice as presiding officer will detract from the gravitas and objectivity of the proceeding and fuel the notion that it is a partisan exercise. Third, a trial without the chief justice is considerably more likely to survive a motion to dismiss at the outset on the substantial grounds that an individual who has left office is no longer subject to the impeachment process. The chief justice might well grant such a motion but a Democrat in the chair would almost surely reject it. The presiding officer’s ruling, regardless of who makes it, is subject to reversal by majority vote of the Senate. However, a ruling by the chief justice would doubtless carry greater weight with senators (and the public) than one by a political figure.         

Trying Trump in a “late impeachment,” i.e., after he is no longer president, would be inconsistent with the plain language of the Constitution and the fundamental purpose of impeachment, which is to remove an incumbent from office. A process with the sole effect of punishing an individual by disqualification from future office would abuse congressional impeachment authority and resemble an unconstitutional bill of attainder. Pursuing impeachment of a former official who has left office is also a sharp departure from congressional norms, and conviction would be unprecedented in U.S. history.

The House’s second impeachment of President Trump so near the end of his term may be understandable politically. Trump’s behavior in the wake of his election defeat has been reprehensible and includes actions that are widely viewed as impeachable. His conduct cries out for condemnation. The House impeachment complied with the literal terms of the Constitution, even though it never had a realistic chance of leading to his removal from office. Continuation of this impeachment in the Senate, however, is a different matter. Since Senate action will not begin before Trump leaves office, he will be tried not as president but as a private citizen.

There is much debate over whether the Constitution sanctions late impeachment. Law Professors Laurence Tribe, Ilya Somin, and Brian Kalt and Frank Bowman, among others, say yes. Former Federal Circuit Judge J. Michael luttig says no. While outnumbered, Judge Luttig makes the far stronger case

Luttig bases his argument on a straightforward reading of the key constitutional text. Article II, section 4 of the Constitution, the primary authority governing impeachment, specifies which individuals are subject to impeachment and conviction as follows: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Trump will not be the “President” if and when tried and he cannot be “removed from office” since he would occupy no office at that time. Thus, a Trump impeachment conviction would be outside the scope of the express terms and fundamental purpose of the Article II impeachment authority.

The law professors holding the opposite view offer elaborate argumentation but no persuasive rebuttal to Luttig’s textualist case. Their only counterargument with reference to Article II is that it does not explicitly limit impeachment to incumbent presidents. But there is no ambiguity in the text; it applies to the “President” and there is only one President at any given time—the individual who currently occupies that office. How could the language be any clearer? There is no basis to read it as including former presidents and the fact that it does not explicitly prohibit impeachment of former officials hardly constitutes affirmative legal authority to do so.

Late impeachment proponents cite another constitutional provision, Article I, section 3, which states in part: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” They maintain that removal and disqualification from future office via impeachment are two different things; while removal is inapplicable to a former president, disqualification is still relevant.

This is half right; the two are different in that impeachment can lead to a judgment of conviction and removal without disqualification from future office. However, the converse is not true. The language and structure of the Constitution clearly foreclose disqualification that is not part of an impeachment conviction within the scope of Article II. In other words, Article I, section 3 is not a free-standing, independent source of authority for Congress to disqualify individuals from future office; nor does anything else in the Constitution provide Congress with disqualification authority. Indeed, absent a valid impeachment conviction, a disqualification imposed by the Senate would amount to an unconstitutional bill of attainder.

Late impeachment proponents rely heavily on historical evidence to bolster their position. The short answer is that these considerations cannot override the clear meaning of the constitutional text. As discussed below, they are not persuasive in any event.

A Congressional Research Service (CRS) report (pp. 16-17) observes that Congress usually ends impeachment proceedings if the official subject to them resigns. One prominent example is Richard Nixon. Late impeachment proponents point to only two cases in the history of the United States in which the Senate conducted impeachment trials of officials who had resigned; both ended in acquittal. One involved a former senator who was acquitted on the grounds that senators were not subject to impeachment. The other involved an ex-secretary of war, William Belknap. According to Professors Kalt and Bowman, the Senate debated for over a month and ultimately voted 37-29 that he was impeachable. However, the CRS report suggests that lingering doubts by some senators over his impeachability probably was the decisive factor in Belknap’s eventual acquittal. In short, late impeachments are a rare exception and have never led to conviction. It’s also noteworthy that the Senate has apparently never before held an impeachment trial of a former official who completed his term.  

Proponents also note that the framers of the Constitution were influenced by the British case of Warren Hastings, a late impeachment that was ongoing at the time of the constitutional convention. However, the framers’ interest in the Hastings case evidently focused on the grounds for impeachment rather than the late impeachment aspect. The proponents make no mention of anything the framers said on the subject of late impeachments in the context of the Hastings case (or otherwise) during their deliberations.

Finally, proponents advance various policy arguments in favor of late impeachments. Obviously, these arguments cannot override the clear import of the Constitution’s text. Anyway, late impeachment carries many downsides of its own from a policy perspective. As discussed here, a largely partisan impeachment of dubious constitutionality that will almost surely end in failure to convict does little to hold Trump accountable and may be dismissed by many as a political stunt. On the other hand, a concurrent resolution strongly rebuking Trump’s conduct probably would have drawn much more bipartisan support, easily passed both houses of Congress, and sent a unified and unifying message.

Whether Trump remains subject to impeachment is probably a moot point at this stage. No doubt the Senate will have the final say on whether a second impeachment trial goes forward and how it proceeds to conclusion. While Trump can move the Senate to dismiss the case, that motion will probably fail, particularly since Chief Justice Roberts won’t be present to weigh in on it. It seems inevitable that a second Trump impeachment trial would end in acquittal. However, he would have a much more viable challenge in the extremely unlikely event that the Senate convicted him and barred him from future office.

Courts steer clear of reviewing how Congress exercises its impeachment authority. Thus, in Nixon v. United States (Walter not Richard Nixon), the Supreme Court held that the way in which the Senate conducted the trial of an impeached federal judge was a nonreviewable “political question.” In Trump’s case, however, the question would not be how Congress exercised its impeachment authority but whether it had any such constitutional authority over a former official and now private citizen. The courts would likely accept such a case. The Nixon decision affirmed that “courts possess power to review either legislative or executive action that transgresses identifiable textual limits” and that–

“whether the action of [either the Legislative or Executive Branch] exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.” (citations omitted)

For all the reasons discussed above, it’s also likely that Trump would win. Accordingly, Trump will not necessarily cease to be a potential future political candidate even if Congress purports to disqualify him.

Calls to impeach Trump based on his latest outrages are understandable and legally justified. However, impeachment at this late date is problematic for a variety of reasons. A better option—in fact, the only one that can accomplish something positive—is for Congress to censure him by concurrent resolution.

President Trump has repeatedly attempted to overturn the 2020 presidential election outcome through extrajudicial means, including pressuring state officials to alter election results, urging his vice president to violate his constitutional responsibilities, and, most recently, inciting an assault on Congress to prevent acceptance of state election certifications as provided for in the Constitution. There can be little doubt that these actions constitute impeachable offenses. Trump’s unhinged behavior also raises legitimate concern that his continuation in office even for the last few days of his term could threaten national security. However, even if the House impeaches Trump this coming week, it would be virtually impossible for the Senate to convict and remove him from office before his term expires. According to Senate rules, a Senate trial could not begin before January 20.

This means that impeachment is not a viable option to prevent Trump from taking dangerous action during the remainder of his presidency. Instead, Congress must rely on executive branch officials—the vice president, agency heads, and military leaders—to ensure that this does not happen. (It is highly likely that officials are already monitoring Trump and their own chains of command closely to ensure that he is reined in. If Trump should try something deranged, they can stop it and, if necessary, invoke section 4 of the 25th Amendment to have Vice President Pence supplant him for the rest of his term.)

Impeachment would have negligible punitive effect even if it is legal to convict Trump after his term expires, a debatable proposition. Some assert that Trump could lose significant financial benefits accorded to former presidents. However, under the plain terms of the Former Presidents Act, these benefits are denied only to a president who is actually “removed” from office by impeachment and conviction—not one who is convicted after his term ends. It is perhaps possible that Congress could disqualify from future office a president who is impeached and convicted even on an ex post facto basis. As a practical matter, however, Trump has already forfeited any realistic prospect for future election by his recent conduct.   

Given the above, impeachment at this stage would be little more than a symbolic gesture, and one that carries negative political consequences. While Trump’s actions have been widely condemned, a rushed impeachment and post-removal trial would be highly divisive and probably attract little bipartisan support. Such an unprecedented and legally fraught undertaking would be all too easy for Republicans to oppose even if they disapprove of Trump. The effort might well be viewed by many as an unserious partisan stunt, making it very difficult to attract the two-thirds vote necessary to convict in the Senate. Moreover, it is doubtful that President-elect Biden would relish a Congress bogged down in a distracting, protracted, hyper-political battle like this early in his administration. If for this reason Democrats delayed a Senate trial for a time, as has been suggested, the effort would lose its momentum. Whenever it occurs, however, the trial would almost certainly end in acquittal, thereby imposing no consequences and sending no clear or unified message.

A better option for Congress is to adopt a concurrent resolution condemning Trump’s actions. While likewise symbolic, this option has a much greater chance of succeeding and having a significant impact in terms of holding Trump accountable. A concurrent resolution would focus exclusively on Trump’s behavior, avoiding the side issues and baggage of impeachment described above. It would be very hard for Republicans to oppose and should therefore attract considerable bipartisan support. At the very least, it could almost surely achieve the simple majority vote needed to pass the House and Senate. At best, it could provide a strong, bipartisan, and unifying affirmation by Congress that misconduct like Trump’s is intolerable and must never occur again.  

Democrats picked the right candidate. Given the closeness of the presidential election and relatively poor Democratic results in down-ballot races, any Democratic candidate to the left of Biden probably would have lost.

Election spending was prodigious but not necessarily effective. Spending on the 2020 elections (presidential and congressional) totaled $14 billion, more than twice what was spent in 2016. Four 2020 Senate elections are now the most expensive ever, with the vast majority of the money coming from out of state. (These records may be eclipsed by the upcoming Senate runoff elections in Georgia.) However, monumental spending rarely led to great results. Democrats contributed almost twice as much as Republicans in total spending but achieved only a narrow presidential victory in terms of swing state margins and generally disappointing results in Senate, House, and state races. The most expensive Senate race of all was in North Carolina, where Thom Tillis eked out reelection. Huge amounts were invested in attempts to oust Republican Senators McConnell, Graham, Ernst, and Collins. All won reelection handily.

Thankfully, it appears the courts will not play a major role in the election. While Trump is mounting legal challenges to election results in several states, almost all appear to be either frivolous or insignificant. The Supreme Court dodged a bullet on the one potentially serious challenge—the Pennsylvania Supreme Court’s likely unconstitutional decision to override state election law by extending the deadline for receipt of ballots past election day. (See here for background.) Since Biden’s margin of victory in Pennsylvania far exceeded the number of ballots received after election day, this case now seems to be moot. For the future, however, courts and election officials should be very wary of superseding state election laws absent a compelling legal justification. At least five Supreme Court justices evidently regard such action as violating the Constitution, which assigns legislatures (not judges or other state officials) the role of prescribing the times, places, and manner of holding elections.    

The media and pollsters were way off again in their predictions. There is already much analysis and discussion of this problem. One striking aspect is that almost all the mistakes affecting presidential and down-ballot contests go in the same direction: overestimating Democratic performance and underestimating Republicans. Defective polling can’t be blamed on so-called “shy” Trump voters since it was so pervasive across different areas and races. In one particularly noteworthy example, not a single poll predicted Susan Collins’ easy win in Maine.

Voters put a damper on identity politics. According to exit polls, Trump picked up some support among Black and Hispanic/Latino voters while Biden gained ground with white voters. Minority voters still went heavily Democratic, but perhaps Democrats can no longer treat them as monolithic voting blocks. Instead, this may signal a gradual trend toward sorting out minority voters not by race or ethnicity but along the same lines as other voters–age, sex, economic and educational level, etc. It’s also significant that California voters soundly rejected an initiative to revive race preferences in public hiring, education, and contracting.

In the election’s aftermath, Trump is erasing any lingering doubts about his unfitness for office. He continues to undermine democratic norms and now the integrity of our election system itself by refusing to concede in the face of a clear outcome delivered by the voters (see below), asserting evidence-free claims of systemic election fraud, and impeding the transition process. It remains to be seen what further damage he will inflict during his waning days in office.  

Republicans need to take a stand against this debacle, and soon. More than a week after the election, Trump’s forces have yet to produce any evidence of systematic fraud and a macro analysis of voting patterns strongly militates against this possibility. Very few, even on the right, take Trump’s claims seriously or dispute that Biden won the election fair and square. Yet most Republican politicians remain unwilling to acknowledge Biden as the winner and call on Trump to concede, or at the very least demand that he allow the transition to proceed. These craven, cynical folks are apparently focused exclusively on the runoff elections in Georgia and doubtless fear offending Trump and his base, whose enthusiastic support they will need. However, things will come to a head regarding the presidential election well before the Georgia runoffs in January. Under the schedule prescribed by federal law, the “safe harbor” deadline for states to certify their election results is December 8 and the electoral college meets on December 14. At some point very soon, Republican office holders must put country over party by affirming Biden’s election and condemning this most recent Trumpian farce.       

Judge Barrett is eminently qualified for the Supreme Court

Judge Barrett looked like a high-quality nominee when first announced and her performance at the hearings strongly reenforced that impression. Without relying on notes, she demonstrated a remarkable breadth and depth of knowledge of the law. She was highly articulate and skillful in her exchanges with senators. While resolute, she displayed grace and poise in the face of hostile, repetitive questioning over many grueling hours. She deftly parried “gotcha” questions designed to take her where a Supreme Court nominee should not go. (See below.) In short, she clearly demonstrated outstanding substantive abilities and judicial temperament. If confirmation votes were based on merit rather than politics (as they used to be), the Senate would confirm her by an overwhelming, bipartisan majority.

No bloodbath this time

Although highly partisan and contentious, the hearings were remarkably civil by recent standards (granted, an extremely low bar). For the most part, Democrats wisely refrained from attacking Judge Barrett’s personal integrity or religiosity. Instead, they concentrated their fire on the process, Trump, and their Republican colleagues.

Process objections ranged from the arguable to the absurd

Democrats vigorously condemned Republican hypocrisy in pushing Barrett’s confirmation after the Garland fiasco of 2016 and their rush to confirm her before the election. As discussed here, these are fair points but they don’t provide a principled basis for opposing her confirmation. Another stated concern was potential Covid risk. Notably, however, almost all Judiciary Committee members opted to appear in person along with their staffers and safety protocols were generally followed.

Unfortunately, many Democrats went beyond criticizing the process as hypocritical, unfair, or unwise and falsely maintained that it was “illegitimate.” They continue to argue that the SCOTUS seat created by Justice Scalia’s death was “stolen” from them. This is nonsense. A vacant seat belongs to no one and, while nominees deserve good faith consideration and a vote, they are not entitled to confirmation. Allegations that filling the SCOTUS vacancy created by Justice Ginsburg’s death somehow constitutes another seat-stealing or some kind of “court packing” are equally ludicrous. Most absurd of all is the contention by some Democrats, including Joe Biden, that there is something “unconstitutional” about the Barrett nomination process. All of these spurious arguments can be easily dismissed now. The concern is that Democrats are using them to lay the foundation for a real court-packing scheme once they seize power, which would do tremendous damage to the Court.    

The Affordable Care Act (ACA) was a huge red herring

Throughout the hearings Democrats relentlessly promoted the theme that Judge Barrett’s confirmation would be the final nail in the coffin of the ACA. This is a clever but disingenuous line of attack. It’s true that the Trump Administration is pushing to nullify the ACA in a case the Supreme Court will hear in early November. However, as Democrats surely know, this effort is almost certain to fail. The lawsuit is viewed across the political spectrum as quite far-fetched on the merits. (See, e.g., here, here, and here.) Indeed, it has aptly been described as legal and political malpractice. The Court may declare the ACA’s individual mandate unconstitutional but that will have no practical effect since Congress already gutted this provision. It is extremely doubtful that the Court, with or without Barrett, will invalidate the entire law. Interestingly, Republican senators were apparently too cowed by Trump to offer this obvious rebuttal during the hearings.

The usual kabuki dance with a few wrinkles

Senators’ questioning of Judge Barrett followed a familiar pattern. Republicans lobbed mostly softballs, although they were patronizing at times. Democrats peppered her with questions that would be foolish or unethical for her to answer and then criticized her for being evasive. She did duck some questions that seemed to have obvious answers. However, these questions, like most others, were designed to launch her onto slippery slopes that would eventually lead to inappropriate subjects. She was wise not to take the bait. Democrats also tried to get her to comment on various outrageous statements by Trump and to address a range of hot button political issues, some having no apparent relevance to her qualifications as a potential justice. She sensibly deflected these efforts as well.

Barrett’s refusal to cooperate with such lines of attack led some Democrats to insultingly caricature her as a robotic clone of Scalia and a toady for Trump. No sentient, fair-minded person who followed the hearings would buy this. Judge Barrett consistently showed herself to be a strong, independent thinker who radiates integrity. She left no doubt that she will decide cases impartially based solely on her interpretation of the applicable law.  

Contrasting views on the role of judges

One enlightening aspect of the questioning and speechifying was to highlight the contrast between Democratic and Republican visions of what the judiciary should be. Democrats focused heavily on the results in individual cases, making clear which outcomes they approved or disapproved from a policy perspective. They seem comfortable with the notion of courts as an extension of the legislature. Republicans focused on methodologies (textualism and originalism) they believe judges should employ to decide cases based on the law as written, leaving policy issues for resolution by the people through their elected representatives.

Some clear winners; no big losers

Judge Barrett was an obvious winner. Republicans won too, for now. They are poised to achieve one final major victory on judicial confirmations before probably losing the presidency and their Senate majority. Of course, payback may be lurking around the corner. (See, e.g., court-packing, above.)

Democrats came out even. They couldn’t block Judge Barrett but avoided doing further harm to themselves. Their relatively anodyne approach to her saved them from the kind of self-inflicted wounds they suffered in the previous two SCOTUS confirmations—their foolish filibuster of the Gorsuch nomination, which resulted in turning them into largely irrelevant spectators at subsequent confirmations, and their over-the-top Kavanaugh tactics, which probably cost them Senate seats in 2018.  

Likewise, the public more-or-less broke even. They were spared another embarrassing, demoralizing spectacle like the Kavanaugh confirmation and treated to an excellent performance by a super talented nominee. On the other hand, SCOTUS confirmations remain hyper-partisan exercises that ill serve the public interest.

Arguments that there is something wrong with moving ahead now to fill the Supreme Court vacancy caused by Justice Ginsburg’s death are bogus. Judge Barrett’s confirmation should proceed except in the unlikely event that holding off could produce a bipartisan deal to deescalate the toxic politicization of judicial confirmations. An ideal compromise would (1) reinstate the 60-vote threshold for confirming federal judges and (2) revive the standard that judicial confirmations should be based on merit rather than politics.

The Barrett nomination and confirmation schedule are appropriate

Prior to the Merrick Garland fiasco, there was no apparent problem with Supreme Court nominations and Senate confirmations during the last year of a president’s term. Presidents possess the full range of their authorities for their full time in office and clearly have the right to submit nominations whenever Supreme Court vacancies occur. Those who elected them expect no less. Likewise, the Senate has full authority, and even an ethical duty, to consider such nominations in good faith.

The projected timetable for Judge Barrett’s confirmation of about 38 days is short but not unprecedented. For example, the Washington Post reports that Justice Ginsburg was confirmed in 42 days, Sandra Day O’Connor in 33 days, and John Paul Stevens in only 19 days. In any event, the confirmation timeline should not depend on an arbitrary number of days but on whether it gives the Senate enough time for its due diligence. Judge Barrett was nominated and confirmed to the Seventh Circuit in 2017; thus, she is recently vetted and a known quantity to the Senate. She appears to be an exceptionally well qualified nominee, both professionally and personally. While issues could arise that legitimately require more time, there is no reason at present to dismiss the proposed confirmation timeline. 

The Garland debacle should not become the new normal

Democrats and the liberal media are in high dudgeon over the Barrett nomination based on Republicans’ refusal to consider former President Obama’s nomination of Merrick Garland during the last year of his term in 2016. Their stance was rightly condemned by Democrats, the media, and many others. The hypocrisy Republicans now display by their reversal of position is palpable. However, none of this constitutes a substantive justification for opposing Judge Barrett’s confirmation. For one thing, Democrats and the media are being just as hypocritical in reversing their own stance from 2016. Also, there’s little doubt that if the situation were reversed, Democrats (with liberal media support) would have done what Republicans did in 2016 and would do now what Republicans are doing. Sadly, Supreme Court confirmations have become so politicized that hardly anything said by either side is worth taking seriously.

More importantly, the contention that the Senate should not confirm a Supreme Court nominee in the last year of a president’s term, which liberals now invoke as “the Garland principle,” was unprincipled nonsense when Republicans disingenuously conjured it up in 2016 and still is today. It would be equally wrong for Democrats to embrace it now and probably perpetuate it. While the Senate has the raw power to deny good faith consideration to Supreme Court nominations, this surely amounts to an abuse of its constitutional advise and consent role and a dereliction of its duty at least from an ethical standpoint.

There is an overriding need to deescalate politicization of judicial appointments before it destroys the judiciary

While acting on the Barrett nomination now is fully justified, there may be a better option for those who take a longer-term view and care foremost about preserving the integrity of the judicial branch. The federal judiciary can function effectively only if judges are nonpartisan and independent in reality and perception. However, judicial appointments, particularly to the Supreme Court, have been politicized to the point of jeopardizing the credibility of the judiciary. The process has degenerated further with each recent confirmation. The Barrett confirmation promises to continue this sorry trend. Democrats and the media are already spewing hyperbole and threatening drastic retaliation if the nomination goes through. Their worst threat is to “pack” the Court, which would utterly destroy its stature. Reversing this downward spiral is arguably more important than any individual confirmation.   

Restoring the 60-vote threshold for judicial confirmations

Longstanding Senate rules can force a 60-vote majority to confirm federal judges. However, in 2013 Democrats invoked the so-called “nuclear option” (well named to capture its extremism) to override the rules and enable confirmation of lower court federal judges by simple majority vote. In 2017, Democrats’ mindless filibuster of the Gorsuch nomination forced Republicans to abandon the 60-vote rule for Supreme Court confirmations as well. In the closely divided Senate, reviving the 60-vote threshold would necessitate significant bipartisan support for judicial confirmations.

Restoring confirmations based on merit

Not too long ago, Supreme Court nominees were confirmed or rejected based on their merits: intellect, background and experience, and personal integrity. Nominees’ judicial philosophy made little difference so long as they were within the mainstream of legal thought; nor did it matter whether the nominating president was a Republican or Democrat. Applying this standard, bipartisan Senate majorities overwhelming confirmed nominees as ideologically disparate as Ginsburg (96-3) and Scalia (98-0). It also was considered inappropriate to apply “litmus tests” to nominees or press them to reveal how they would vote in specific cases. (The latter became known as “the Ginsburg standard” since Justice Ginsburg espoused it forcefully at her confirmation hearing.) Returning to these merit-based standards along with reimposing the 60-vote rule would go a long way toward restoring integrity to judicial confirmations.

Is compromise possible?

The Senate has sunk so low that any effort at rational, bipartisan compromise is a long shot. However, the above steps are hardly radical; they simply restore the status quo that existed for many years. The 60-vote rule applied until very recently. With several notable exceptions, broad bipartisanship and merit-based standards held sway through 1994 when Justice Breyer was confirmed by an 87-9 vote. Nominees continued to receive significant bipartisan support as recently as Justice Kagan in 2010.

The hyper-partisan Senate leaders on each side would be of no help in forging a compromise. However, a handful of courageous, institutionalist senators from each party (if they can be found) could form a critical mass to force reform. Now is as good a time as any to try. While Republicans currently have the upper hand, they are at considerable risk of losing both the presidency and their Senate majority. This would open the floodgates for Democrats to add judges (and maybe justices) in the immediate future. The stakes are even higher for Democrats. This is the first appointment in decades that would dramatically change the Court’s ideological composition. Replacing Ginsburg with Barrett probably would guarantee a conservative majority of justices for years to come even if Democrats sweep the election.

While a bipartisan compromise along the above lines may be the ideal outcome, it is probably a bridge too far. If so, and if no shocking developments occur in the confirmation process, Judge Barrett should be confirmed.