Author: Henry Wray

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.  

The tragic death of George Floyd at the hands of Minneapolis police and other recent incidents feed the narrative promoted by Black Lives Matter (BLM) and re-enforced by much of the media that cops are engaged in deadly warfare against African Americans. The BLM website  (www.Blacklivesmatter.com/whatwebelieve) asserts that Blacks are the victims of “rampant and deliberate violence inflicted on us by the state.” Statistics and objective studies flatly refute this narrative.

Most police killings (of both Blacks and Whites) occur where police encounter armed, violent individuals who threaten them or others. Such encounters involve African Americans disproportionately. While Blacks are killed at a much higher rate than their share of the population, this disparity vanishes when their disproportionate rate of violent crime (overwhelmingly committed by young Black males against other Blacks) is factored in. The reality is that disproportionate police killings of Blacks will subside only when disproportionate Black violent crime subsides.

At the same time, it bears emphasis that disproportionate Black crime rates reflect a host of other racial disparities impacting African Americans that do stem from racism and persist after centuries of overt race discrimination. Fatal police encounters are only one symptom of these deeper problems. Until policymakers address the underlying problems, little is likely to change.

Data sources

Comprehensive data on police killings of civilians is limited since there is no official, comprehensive database–a serious shortcoming in itself. The best available data sources come from outside government. The following analysis relies primarily on the Washington Post’s “Fatal Force” database because it covers all lethal shootings by police from 2015 forward and is readily searchable by race and other relevant criteria. While George Floyd’s killing did not involve firearms, shootings comprise more than 90 percent of all fatal intentional use of force cases involving police. This analysis also relies on a series of studies that have been done in recent years as described here, here, here, here, here, here and here.      

Preliminary observations

A few overall points are worth making before delving into the statistics and studies. First, the vast majority of African Americans, like other citizens, are law-abiding individuals who never experience violent encounters with police.

Second, police killings of civilians of any race are rare. Nationwide, cops interact with civilians over 50 million times each year and make over 10 million arrests annually. Fatalities at the hands of police constitute a minuscule percentage of these interactions. According to the Post’s database, police on average fatally shoot close to 1,000 civilians per year, of whom about 225 to 250 are Black. This represents less than one death out of every 10,000 arrests and at most one Black death out of every 40,000. Of course, all such deaths, Black and otherwise, are concerning and deserve scrutiny. However, they hardly show a pattern of rampant violence directed against Blacks or anyone else.

Third, police killings of unarmed civilians are rarer still. Over 90 percent of those shot dead by police are armed. Nationwide, 55 unarmed shooting fatalities occurred in 2019, including 14 Blacks and 25 Whites. Moreover, some victims classified as “unarmed” were killed while attacking police officers. Almost all persons killed by police, armed and unarmed, resisted the police in some way. Several highly publicized cases (including Floyd’s) involve police encounters that began fairly routinely but escalated due to actions of the victim.

Objective studies refute the narrative of racial animus in police killings

With the foregoing perspectives in mind, what do the data show about fatal police encounters? While police fatally shoot more Whites than Blacks each year, the percentage of Black victims significantly exceeds their representation in the general population. African Americans constitute roughly 13 percent of the Nation’s population but account for about 24 percent of fatal police shootings. Many contend that this disparity proves racial bias. However, looking only at demographic representation has little probative value. For example, using this sole criterion would mean that police engage in massive sex discrimination since 96 percent of fatal shooting victims are male.  

What, then, does explain disproportionate police killings of Blacks? Studies consistently find that the statistical disparity in police shootings of Blacks evaporates when the even more disproportionate share of violent crime they commit is factored in. Blacks account for 58 percent of all murder arrests and 40 percent of those apprehended for all violent crimes. Most police killings occur when cops encounter potentially violent situations with armed, threatening individuals. Such encounters involve African Americans disproportionately, the great majority being young armed males. It is also noteworthy that the studies find no disparity in the race of police officers doing the shooting; Black officers are just as likely as White officers to shoot Black victims.

Activists and the media turn a blind eye to all of this and focus instead on a few individual cases that appear (at least at first blush) to be the most egregious, particularly those rare instances in which the victim was unarmed. Some cases, such as Floyd’s killing, do seem wholly unjustified. In other highly publicized cases, however, police culpability is ambiguous or nonexistent. The highly publicized 2014 killing of Michael Brown in Ferguson, Missouri, fits the latter category. The cop who shot Brown was exonerated both by local officials and the Obama Justice Department, yet his case is still widely invoked as a prime example of police racism and prominent politicians still falsely describe Brown’s killing as “murder.”

Those promoting the narrative of racist police killings also ignore the fact that dubious police-involved killings are not unique to Blacks. As one commentator observed, for every Black person killed by police, there usually is at least one White person killed in a similar way. For example, the 2016 killing of a White man (Tony Timpa) by Dallas police was strikingly similar to Floyd’s. Like most cases of White victims, Timpa’s death received little if any national publicity.  

The victims of violent crime committed by Blacks are overwhelmingly Black.

The toll that violent crime takes on Black lives is still another obvious fact that activists and the media either ignore or deflect. According to the FBI, 2,870 Blacks were murdered in 2016; at least 2,570 (90%) were killed by other Blacks. Shockingly, homicide is the leading cause of death for Blacks up to age 45. Blacks between the ages of ten and 43 die of homicide at thirteen times the rate of Whites, according to the Centers for Disease Control. Thirty-eight juveniles have been murdered by gun violence in Chicago so far this year, including five under the age of 10.

Less policing leads to increased Black deaths

The so-called “Ferguson effect” posits that police become less proactive when they are subjected to withering criticism, which in turn leads to increased crime. The term was coined to explain the rise in crime in Ferguson, Missouri, following widespread outrage over the Michael Brown killing. Another dramatic example is what happened in Baltimore in the wake of the controversial death of Freddie Gray while in police custody and the widespread protests and rioting that followed. Many American cities are experiencing a surge in murders following the George Floyd killing and other recent police-involved incidents. The Ferguson effect theory has its detractors as well as proponents. However, a  recent study by Harvard economists provides supporting data for it. The study found that in cases of police killings of Blacks that went “viral” (i.e., generated great controversy), there followed large and statistically significant increases in homicides and total crime.  Other studies (described here) reach similar conclusions.

The Ferguson effect probably explains at least in part the recent dramatic increases in murders. This is particularly likely where politicians berate police before investigations are complete. An example is the non-fatal shooting of Jacob Blake in Kenosha, Wisconsin. The Wisconsin governor immediately condemned the police and the lieutenant governor described the shooting, bizarrely and without evidence, as “some sort of vendetta taken out on a member of our community.” While acknowledging that the facts need to be investigated, vice presidential candidate Kamala Harris nonetheless asserted that the police officer who shot Blake should be charged with a crime.  

Some police reforms are needed

The lack of evidence of racial animus in police killings does not mean there are no problems with policing. Studies find race-based disparities in a variety of more routine police actions that do not involve fatal force. Blacks are more likely than Whites to be subject to traffic stops and “stop and frisk” encounters. Blacks also report rough physical treatment and verbal abuse from police at a higher rate than Whites. (A recent Washington Post article catalogs studies finding such racial disparities in policing, among other components of the criminal justice system.) These disparities likely result from widely-held stereotypes of Black males as potentially dangerous and prone to criminal behavior. They also explain why African Americans have significantly less confidence than Whites that police will treat them fairly, although a majority of Blacks (71%) are at least somewhat confident of receiving positive treatment from police.

Race aside, there are also concerns that police resort to force too quickly and use force excessively against both Blacks and Whites. Even legally justified killings by police may still be avoidable. Some reforms to address these problems have been enacted in the wake of the Floyd killing, such as limiting “chokeholds” and other dubious police techniques, improving police training, and enhancing accountability. Reforms such as these have the potential to improve policing and strengthen relationships between police and the citizens they serve.

Bottom line: The key to reducing disproportionate Black deaths at the hands of police is to reduce disproportionate Black violent crime

Demonizing police and reducing police presence, particularly in high crime areas, will not save Black lives–at least innocent ones. On the contrary, it will cost innocent Black lives. What’s needed is not fewer police but better policing. Well-conceived reforms can enhance law enforcement and save lives. However, as long as combating violent crime remains a core police function and Blacks commit a disproportionate share of that crime, they will inevitably remain disproportionate victims of police killings.

George Floyd’s tragic death unleashed unprecedented national outrage over police killings of African Americans. Unfortunately, the directions this outrage has taken so far offer little hope for real change either in police outcomes or other racial disparities that underlie them. Instead, they promote more polarization and divisiveness through distortions from activists and much of the media, posturing and demagoguery from politicians, and symbolism over substance. These reactions feature heavy doses of tribalistic, stereotyping rhetoric that demeans both Blacks and Whites and impedes constructive debate. Until we come together in honest, good faith dialogue the problems will only grow worse.

Black Lives Matter (BLM) along with other activists and most media promote the narrative that police are engaged in ongoing lethal warfare against Blacks. This is demonstrably false. Even worse, measures they advocate would cost Black lives rather than save them and exacerbate racial disparities.            

State and local politicians cravenly attack their police departments to deflect attention from their own leadership failures. They control the police and bear direct responsibility for police performance. If cops systematically engage in bad practices, these officials allow it. If police unions have too much power, these officials approved it. Whatever excess funding or responsibilities police have these officials provided.

Symbolic actions coming from many quarters, including Whites intent on demonstrating their “wokeness,” are shallow and largely empty gestures. Destroying statues, renaming things, confessing to White privilege and racism, as well as other forms of virtue-signaling do nothing to save Black lives. Protests over Floyd’s death and more recent incidents have descended into riots and looting, sometimes apparently spearheaded by White anarchists. The ongoing protests in Portland seem to be an end in themselves and a form of local sport that has turned deadly. These actions repel rather than attract support for their supposed causes. 

The overheated rhetoric that permeates social media, academia, and much of what passes for civil discourse likewise turns off well-meaning people who would be receptive to rational debate. Branding everyone and everything “racist” trivializes that concept and robs it of meaning. Many of today’s “anti-racist” practitioners (often Whites) insult all races and discourage dialog. They seek to shoehorn everyone into monolithic tribal groups defined by ridiculous stereotypes. Whites are privileged racists who benefit from America’s defining history of suppressing minorities. Blacks are hapless victims who lack individual agency and the ability to affect their own destinies. As one (African American) reviewer observed, Robin DiAngelo’s best-selling book White Fragility, a prime example of contemporary anti-racist dogma, “entails an elaborate and pitilessly dehumanizing condescension toward Black people.” Similarly, another reviewer described her book as based on the “unstated assumption . . . that all black people are emotionally immature and child-like.”

What, then, can be done to harness the outrage into something productive? Serious efforts to reduce racial disparities in fatal police encounters must start with dispassionate, fact-based analysis. Two hard truths lie at the heart of the problem:

1. The cause of disproportionate Black deaths at the hands of police is not racism but the disproportionate rate of Black violent crime, overwhelmingly committed against Black victims. Disproportionate police killings of Blacks will subside only when disproportionate Black violent crime subsides. This will also save many more Black lives than police take.
2. Disproportionate Black violent crime, in turn, stems from a host of other racial disparities that persist  after centuries of true race discrimination. For example, Black males on average earn less money, are less likely to graduate from college, and die at younger ages than other American men. Until these underlying disparities are addressed, disproportionate Black crime is unlikely to subside.

BLM activists and their allies ignore the first truth; BLM critics and their allies ignore the second. Until all sides acknowledge and address both, little will change.

Remedying broader racial disparities requires attacking their root causes. Some are obvious, such as dangerous, drug- and gang-ridden neighborhoods and failing public schools. At a bare minimum, every American deserves physical security and every child deserves a decent education in a safe environment that is conducive to learning. Other root causes involve more complex problems such as entrenched segregated housing patterns and a range of sociological and cultural issues.

Paradoxically, activists like BLM and “woke” elites promote policies that diminish rather than enhance Black lives. This is manifestly true of calls to “defund” the police. Police reforms are appropriate to reduce excess use of force, enhance accountability, and improve relationships between police and minority citizens. However, reducing police presence, especially in high-crime neighborhoods, will increase innocent Black deaths. Unsurprisingly, few African Americans favor this approach. They want better not less policing.

Similarly, activists undermine the cause of racial justice by disparaging as “White values” such obviously beneficial paths to achievement as the nuclear family, traditional education, rational thinking, and individual responsibility. This also is hypocritical since elites embrace these values in their own lives and for their own families. Along the same lines, activists as well as academic and media elites increasingly espouse once-fringe “critical race theory” that portrays the United States as an irredeemably White supremacist country defined by “institutional” and “systemic” racism whose stated ideals are nothing but lies. These spurious charges not only turn off most Americans but also create what one critic describes as an ”activist black hole” that offers only a cynical message of victimhood and despair.

Another commentator noted that such assertions “create in the minds of students and teachers of all races a vision of America that is imbued with a permanent malignancy that is hostile to the dreams of students of color” and promotes “the soft bigotry of low expectations.” He contrasted this with the positive message of former President Obama, who argued that a constructive path forward for African Americans calls for–

“taking full responsibility for our own lives—by demanding more from our fathers, and spending more time with our children, and reading to them, and teaching them that, while they may face challenges and discrimination in their own lives, they must never succumb to despair or cynicism. They must always believe that they can write their own destiny.”

As President Obama recognized, the United States, like most countries, has a complex history that features both shameful episodes and those that inspire hope for the future. Our Nation has consistently evolved to reverse past shortcomings. It practiced slavery and engaged in legalized race discrimination but later fought a war to end slavery, outlawed race discrimination, and enacted numerous laws to promote racial equality. Anyone serious about eliminating racial disparities in police encounters and other areas needs to embrace and build upon this foundation—not tear it down.

The recently concluded Trump impeachment had no upsides and many downsides. It proved to be counterproductive at the end of the day. Trump avoided any accountability for his misbehavior regarding Ukraine and, unsurprisingly, claimed total “vindication” by his acquittal. It apparently benefited him politically judging from his rising poll numbers since the impeachment began. It certainly seems to have emboldened him. The impeachment and its aftermath intensified the visceral contempt for each other among the combatants. Witness the infantile conduct of Trump and Speaker Pelosi at this year’s State of the Union address. It provided yet another example of Washington’s partisan dysfunction and added to the polarization and pervasive cynicism that infect our national politics.

It didn’t have to be this way. From start to finish, the most reasonable take on the impeachment case was that Trump’s behavior was seriously inappropriate but not sufficiently egregious to justify the ultimate sanction of removal from office. The Democrats’ impeachment project was politically motivated overreach based on ambiguous and incomplete facts as well as dubious legal theories. It never had a chance to succeed. However, there’s a good chance that censuring Trump rather than impeaching him could have achieved significant bipartisan support and succeeded. It certainly would have been much harder for Republicans to vote against censure than impeachment.

A concurrent resolution of Congress to censure Trump was the best option. Concurrent resolutions require only a simple majority to pass in each chamber and are not subject to veto. Such a resolution probably would have picked up some Republican votes in the House and attracted at least the four Republican votes needed to pass the Senate. While carrying no legal consequences, a bipartisan, bicameral condemnation of Trump would have denied him any basis to claim validation of his conduct. While we’ll never know, it might even have chastened Trump to some degree. What we do know is that the failed impeachment had the opposite effect.  

What can be learned from the failed effort to remove President Trump from office? This is more than an abstract question. If Trump wins reelection and Democrats retain control of the House, there surely will be pressure for more impeachments. Even if political alignments change, the approach taken in this case could signal greater openness to impeachment as a response to future disputes between a president and Congress.

Key takeaways

The impeachment was destined to fail from the outset. Democrats launched their impeachment investigation as a partisan project and it never moved beyond that. After voting to impeach, they continued to treat it as a political exercise by holding a signing ceremony complete with souvenir pens and then delaying submission of the supposedly urgent impeachment articles to the Senate. The impeachment attracted zero Republican votes in the House and a single Republican vote on one article in the Senate. It failed to gain ground with the public despite heavy media promotion. Opinion polls hardly budged throughout the process; they consistently showed Democrats strongly in favor, Republicans strongly opposed, and independents roughly split.

House Democrats never attempted an impartial investigation. The Ukraine-related allegations against Trump certainly warranted congressional investigation. Had Democrats investigated them through the regular order and in a less partisan manner, the outcome might have been different. Once it became clear that impeachment would not gain bipartisan support, they could have opted to censure Trump instead. A censure resolution probably would have drawn significant Republican votes and passed both the House and Senate. However, Democrats made no effort to follow the regular order or work with Republicans. The investigation was assigned to House Intelligence Committee Chairman Adam Schiff, a highly partisan and long-time Trump antagonist, despite having nothing to do with intelligence matters. It was quickly designated an “impeachment” investigation. From then on, there was no chance of attracting Republicans or for Democrats to step back from impeachment.

Senate Republicans didn’t conduct a meaningful trial. The Senate was derelict in not obtaining witness testimony. There was no plausible justification for not calling John Bolton, at a bare minimum. The whistleblower also would have been an important witness. He could have explained his interactions with Democrats before filing his complaint and elaborated on the information provided to him. It doesn’t matter that the House failed to do its job or that Democrats probably didn’t really want witnesses either. Nor does it matter that witnesses might have extended the process. The Senate could have suspended the trial and initially obtained testimony through depositions.      

Hardly any participants in the impeachment process distinguished themselves. The opposing factions mirrored each other in many ways, none of which provided a good look:

• The House impeached Trump on an overwhelmingly partisan basis without fully developing the facts; the Senate acquitted him on an overwhelmingly partisan basis without fully developing the facts.
• During the House and Senate proceedings, advocates on both sides regularly distorted what facts they had and engaged in hyperbole and demagoguery.
• The media largely assumed the role of cheerleaders for one side or the other, depending on their biases, and served as uncritical echo chambers for their favored side. As a result, media coverage was sorely lacking in objective reporting and thoughtful analysis.
• Members of Congress on both sides acted like craven partisans. Many Republicans surely recognized that Trump’s behavior was improper but very few voiced even the slightest criticism of him. Many Democrats no doubt understood that impeachment was an overreach, yet only three House Democrats voted against it and not a single Democratic senator voted against conviction on either impeachment article.
• For his part, Trump attempted to stonewall the process from start to finish and spouted his usual malign nonsense throughout.    

The only person to clearly distinguish himself was Chief Justice Roberts, who presided over the Senate trial with remarkable patience and equanimity. Mitt Romney might deserve honorable mention for at least showing some independence.

House Democrats lowered the bar for impeachment. Democrats struggled to fit their case within the constitutional grounds for impeachment, floating different theories at different times. The “abuse of power” article they finally settled on was essentially that Trump exercised legitimate powers of his office “corruptly,” i.e., with self-serving political motives. However, presidents regularly factor their political interests into their actions and have vast legitimate authority to take actions that stand to benefit them politically. The Democrats’ theory of the case—that Trump elevated his political interests over the national interest—could convert a wide range of policy disputes between Congress and a president into potential impeachments.

Key lessons learned

Partisan impeachments are fundamentally a bad idea. Nancy Pelosi was right the first time when she counseled against them. Impeachments that lack significant bipartisan and broad-based public support are bound to fail and result only in further degrading our politics.  

Don’t be too quick to attach the “impeachment” label to investigations of presidential misconduct. Once the impeachment card is played, both sides dig in and perspectives harden. This leaves little room to bridge political divides and explore bipartisan responses. Better to wait until it’s likely that impeachment and conviction are both viable options.   

If the House is determined to impeach, do a thorough job of it. House Democrats rushed through Trump’s impeachment with incomplete facts and squishy legal theories and then pressed the Senate to fill in the blanks. It was a losing strategy. They also punted on pursuing  litigation to get more facts that would also have established important judicial precedents to demarcate the rights of the legislative and executive branches in future impeachment cases.  

Impeachment should be limited to presidential misconduct that is unlawful by some objective standard. It is and should be exceedingly hard to make an impeachment case out of presidential conduct that is legal on its face. Impeachable conduct need not be limited to violations of criminal statutes; it can include violations of the Constitution. In order to be impeachable, however, constitutional abuses of power should involve an action that clearly exceeds a president’s constitutional authority or a failure by the president to carry out a constitutional duty. An impeachment case that turns entirely on the president’s subjective motives is problematic at best.

If there’s a next time, do it right. Follow the regular order and normal jurisdictional lines in conducting investigations of presidential misconduct. Take the time to develop the relevant facts as thoroughly as possible, pursing litigation if necessary. Try to work with the minority party. Don’t go the impeachment route unless and until the facts and law clearly justify that approach.