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Many political trial balloons have been floated in the contest for the 2020 Democratic presidential nomination. One truly awful idea–advanced by such groups as “the 1/20/21 Project,” “Demand Justice” and the aptly-named “Pack the Courts”–is to increase the number of Supreme Court justices in order to nullify the current majority, whose decisions they don’t like. This radical idea should have died in the 1930s with the failure of FDR’s infamous court-packing scheme. Regrettably, however, several presidential candidates have expressed openness to it.

Why is this such a terrible idea? Because it poses an existential threat to the federal judiciary. Federal courts can’t function effectively unless their judges are politically independent and objective both in fact and in public perception. Every federal judge takes a statutory oath to “do equal right” to all litigants by dispensing justice impartially. Controversial cases arise frequently, often producing decisions that are unpopular with one political faction or another and subject to intense debate over their legal merits. This is to be expected. However, the judiciary will lose its credibility, and hence its value in our system of government, if its decisions come to be widely viewed as the product of political bias rather than objective legal analysis.

The resurrected court-packing scheme rests on two premises that are antithetical to the concept of an independent, impartial judiciary. One is the explicit and spurious charge that the Supreme Court as now constituted is illegitimate. The other is an implicit mindset that judges are mere politicians in robes who serve the agenda of the party responsible for their appointment. As one leading court-packing proponent, former Hillary Clinton political operative Brian Fallon, puts it:

“At Demand Justice, we strongly believe that reforming the court — especially by expanding it — is the cornerstone for re-building American democracy . . . The Kavanaugh court [sic?] is a partisan operation, and democracy simply cannot function when stolen courts operate as political shills. We are thrilled to work in coalition with the team at Pack the Courts to undo the politicization of the judiciary.”

The hypocrisy in describing court-packing as a means to depoliticize the Court is breathtaking. Over recent decades, both parties have done everything within their power to politicize judicial appointments to the Supreme Court and lower federal courts. The court-packing proposal, if implemented, would put the final nail in the coffin. Court-packing is fundamentally an exercise in raw political power designed to offset one group of supposed “political shill” judges by adding political shills more to the proponents’ liking. Its objective is not to depoliticize the Court but to re-politicize it in a different direction by shifting its alleged bias from right to left. The claim that this will somehow advance democracy is equally risible.

In addition to its intellectual dishonesty, this ultimate escalation in partisanship would likely trigger a continuous expansion in Court membership with no end in sight. If Democrats won the White House and Senate in 2020 and succeeded in packing on enough additional justices to shift the majority to their side, Republicans could be counted on to add even more justices in order to regain the majority the next time they controlled the appointment process.  

Like other proponents (see here and here), Fallon contends that the current Court majority is illegitimate because Republicans “stole” a Supreme Court seat from the Democrats when they stonewalled President Obama’s nomination of Merrick Garland to replace the deceased Antonin Scalia. This argument is disingenuous since Democrats almost surely would have stonewalled a Republican president’s nomination had the situation been reversed. (See here.) Both parties share a sordid history in recent years of blocking the other party’s judicial nominees for political reasons. One particularly shameful example was the Chuck Schumer-led filibuster against Miguel Estrada’s nomination to the Court of Appeals for the D.C. Circuit. Schumer feared that placing such an outstanding nominee as Estrada on the D.C. Circuit would position him eventually to become the first Hispanic-American elevated to the Supreme Court.

The notion that the Supreme Court seat was “stolen” from Democrats also is nonsense. Obviously it never belonged to them in the first place. No president is entitled to confirmation of his or her nominations; the Senate has the constitutional right to withhold its advice and consent to Supreme Court (and any other) nominations. Republicans deserved harsh criticism for denying Garland a confirmation hearing, but they had no obligation to confirm him. In the final analysis, Democrats “lost” the vacant Supreme Court seat (if they insist on viewing it that way) not by theft but because they lost the 2016 presidential election. In fact, this vacancy may well have determined the outcome of the election. Polling confirms that Supreme Court appointments are a key consideration for presidential voters, and the pending vacancy was a major factor in 2016 voting, particularly among Trump voters.

No one who values and respects the federal judiciary could embrace the court-packing proposal as a matter of principle. Supporting it probably is bad politics as well. While court-packing may offer red meat to Democratic primary voters, at least those on the far left, it would likely be a significant political negative in the general election. Unlike court-packing advocates, most Americans favor an independent, nonpartisan federal judiciary and are concerned that the courts are already too politicized. (See below.)

There is a desperate need to halt the downward spiral of cynical moves and counter-moves by both parties that have driven judicial appointments ever deeper into the hyperpartisan abyss. However, the remedy certainly is not to resurrect court-packing. Instead, we must somehow find a way to revive the bipartisan appointment process that served the Nation well in the not too distant past. It featured an understanding between the political parties that well-qualified judicial nominees of good character deserved confirmation regardless of which party controlled the White House and Senate. This understanding applied to both “liberal” and “conservative” nominees as long as they fell within the mainstream of legal thought. There was also a bipartisan consensus that election results matter and thus a president’s choice of nominees was entitled to some degree of deference.

Under this longstanding and commonsense regime, Supreme Court justices as ideologically disparate as Antonin Scalia and Ruth Bader Ginsburg were confirmed by overwhelming Senate majorities. Unfortunately, we have now descended to the point where party line votes are the standard practice for Supreme Court and even lower federal court confirmations. The threat this poses to the continued viability of the judiciary is quite real. While the public still has far greater confidence in the federal judiciary than the two political branches, they view judicial decisions as increasingly tainted by political bias. Court-packing would re-enforce this perception in spades.   

At a time when we need reliable media, the media is becoming ever less reliable. Public trust in it is low. While broad-based accusations of “fake news” against the mainstream media may be largely spurious, embarrassing examples of false stories surface with some regularity. Recent examples include the Special Counsel’s repudiation of a widely circulated BuzzFeed report, the Covington high school boys fiasco, and the Jussie Smollett hoax. Such media misfires stem from excessive and uncritical reliance on anonymous sources, mindless echoing of social media feeds, rushing stories to publication in order to scoop the competition, and failure to seek verification of stories deemed “too good to check”.  

Serious questions of tendentious or at least dubious editorial judgment frequently arise as well. One recent example is the Washington Post’s initial failure to publish Vanessa Tyson’s sexual assault allegation against Virginia Lieutenant Governor Justin Fairfax versus its decision to run full speed with Christine Blasey Ford’s accusation against Brett Kavanaugh. There is no apparent substantive justification for the Post’s starkly different treatment of the two accusations. Indeed, Tyson’s story seems, if anything, the more worthy of publication. Both accusers are serious people who leveled serious charges against prominent public figures. Tyson’s charge of actual rape by Fairfax was more severe than Blasey Ford’s allegation that Kavanaugh drunkenly groped her. Tyson’s account also was more plausible on its face since she offered full specifics while Blasey Ford could not provide many key details.

The Post explained its decision to decline Tyson’s story as follows:

“The Post, in phone calls to people who knew Fairfax from college, law school and through political circles, found no similar complaints of sexual misconduct against him. Without that, or the ability to corroborate the woman’s account—in part because she had not told anyone what happened—the Post did not run the story.”

This explanation doesn’t hold water. At the time the Post published Blasey Ford’s accusation, there were no similar complaints against Kavanaugh either. Likewise, there was no independent corroboration of her account—just a couple of somewhat vague statements she had made to third parties. Notably, the Post had the ability to seek independent corroboration of Blasey Ford’s account but made no serious effort to do so. She named “two other teenagers” who were present when she was assaulted, one who was a close friend of hers. However, the Post merely left messages for them on the day it published her story. When Senate investigators contacted the two individuals shortly after the story appeared, evidently without difficulty reaching them, neither corroborated her account.

On the surface, all that’s left to distinguish the two cases is that one of the accused is a white Republican while the other is an African-American Democrat. Thus, critics can easily portray this as an example of bias—political, racial, or both—on the part of a leftist, elitist publication.  

Unfortunately, media outlets rarely embrace the kind of transparency, candor and accountability regarding their actions that they demand from those they criticize. In fact, they are regressing. Several major news outlets, including the Post and the New York Times, abolished their internal “ombudsmen”. This not only freed them from somewhat arms-length internal critics but left the field open for less knowledgeable sources with their own biased agendas to fill the gap in media criticism.

Clearly, there is a need for greater self-awareness and critical self-examination on the part of the media. A first step in this direction would be for the Post and others to restore the ombudsman position. While this is far from a solution, it would at least show some openness to serious criticism and accountability. Surely it would also do more to promote increased public trust in the media than sponsoring Super Bowl ads.

President Trump recently announced his intention to issue an executive order that would deny United States citizenship to children born in this country to illegal immigrants. Whether this is a serious proposal or simply a pre-election political ploy remains to be seen. Regardless, it provides a useful case study in two contrasting theories of constitutional interpretation: “originalism” and “living constitutionalism.” “Originalists” (usually conservatives) believe that the Constitution should be interpreted and applied in accordance with the generally understood meaning of its language at the time of its adoption. They view the Constitution as a document whose provisions, as thus understood, are enduring law and can be changed only by formal amendment. By contrast, “living constitutionalists” (usually liberals) tend to view the Constitution as a fluid and malleable document whose meaning can change over time, without amendment, in order to accommodate evolving societal values, norms and conditions.

The Constitution’s birthright citizenship provision is set forth in the opening sentence of the Fourteenth Amendment, ratified in 1868, as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” On its face, this language clearly covers the American-born offspring of illegal immigrants. They are in fact born in the United States and are subject to its jurisdiction, i.e., its judicial authority and laws. The original understanding of the provision is consistent with its plain language. Its main purpose was to overturn the Supreme Court’s infamous Dred Scott decision and grant citizenship to African-Americans born in the United States. However, the congressional debates on the proposed constitutional amendment make clear that the language was viewed as all-encompassing with the sole exception of persons not “subject to the jurisdiction” of the U.S. Government. This exception, in turn, was understood to apply only to children of foreign diplomats and children of the members of certain Native American tribes which were not considered subject to U.S. law at that time. (A later law made all Native Americans citizens at birth.)

Given the above, it’s hard to see how any self-respecting originalist could support Trump’s proposal. If he implements it, the originalist majority on the current Supreme Court will undoubtedly rule against him in the event the proposal survives judicial challenge long enough to reach the high court.

It’s less certain that judges espousing the living Constitution theory of interpretation, and thus feeling less constrained by the original meaning of the constitutional language, would come out the same way. Living constitutionalists might reason that the framers of the Fourteenth Amendment never considered illegal immigrants, particularly at their current volumes, and could not have intended to confer automatic citizenship on all their children. Accordingly, they might well conclude that a broader, evolutionary reading of the “subject to the jurisdiction” exception would better serve contemporary conditions and needs—i.e., a reading that extends the exception to cover those in the country illegally who owe no allegiance to the United States.

I’d submit that the above analysis offers three cautions for those inclined to prefer living constitutionalism over originalism: (1) While originalism may be regarded as a conservative legal approach, it can produce liberal policy results. (2) The notion that the Constitution “evolves” does not necessarily mean that it evolves only in the direction of expanding constitutional rights; it can just as easily evolve to restrict such rights. (3) If judicial interpretation of the Constitution is not anchored to its text as originally understood, there are no objective criteria to constrain judges. They are left free to act on their own subjective views of how best to mold the Constitution to fit contemporary needs and values as they see them.

Given the hyper-politicization and downright toxicity that define Brett Kavanaugh’s confirmation process, it’s hard to predict what bearing an objective analysis of Christine Blasey Ford’s accusation against him will have on the outcome. Very little of the massive political and media attention heaped on this subject addresses the specifics of the case. Another challenge is the age of the accusation and lack of key factual details supplied by Blasey Ford. If one does focus on the specifics, however, a recent development looks to be highly relevant.

Last Saturday night CNN reported that Blasey Ford had identified a longtime friend, Leland Keyser, as someone who attended the party where the alleged assault occurred. After Keyser was contacted by the Senate Judiciary Committee, her lawyer submitted a statement to the Committee that “Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without Dr. Ford.” Keyser’s statement means that none of the four people named by Blasey Ford as attending the party support her claim that it ever happened. Kavanaugh and Mark Judge, whom she named as a witness to the assault, both vehemently denied her allegation. The other person she named as being at the party but not witnessing the assault, Patrick (“PJ”) Smythe, told the Committee he had no knowledge of any of it.

On top of the absence of witness corroboration, there seem to be no other investigative avenues available to either confirm or refute Blasey Ford’s accusation given her own lack of recall as to the date (even the year), location, and other basic aspects of the alleged assault. Therefore, the truth or falsity of her charges probably can never be determined definitively. Nevertheless, Keyser’s lack of knowledge casts serious doubt on Blasey Ford’s account as she has presented it thus far, particularly since Keyser is a close friend and supporter of hers. (She says she believes Blasey Ford even though she cannot vouch for any of her story.)

Blasey Ford and her lawyers brushed off Keyser’s lack of recall. Blasey Ford told the Washington Post that she didn’t expect Keyser to remember “because nothing remarkable happened there, as far as Keyser was aware.” In commenting on the CNN story, Blasey Ford’s lawyer added that Keyser couldn’t be expected to remember the party because “nothing of consequence happened to her.”

These explanations strain credulity when considered in relation to Blasey Ford’s account of the events of that night. According to her Post interview and letter to Senator Feinstein, the “stumbling drunk” Kavanaugh and Judge “corralled” her into a bedroom as she was headed for a bathroom up a short flight of stairs from the living room. They played loud music from the bedroom and Kavanaugh put his hand over her mouth to stifle her screams. She feared Kavanaugh might kill her. Kavanaugh was on top of her on a bed trying to remove her clothing. At some point Judge jumped on top of Kavanaugh and her, “sending all three tumbling.” She got away, ran across to the bathroom, and locked herself in. (It’s reasonable to assume that Blasey Ford would have resumed screaming audibly upon her escape from Kavanaugh.) Kavanaugh and Judge then “loudly stumbled” down the stairs and engaged the other two people who were there (Keyser and Smythe). She subsequently exited the bathroom, ran down the stairs, and “fled the house.”

The events Blasey Ford describes were raucous and dramatic to say the least. Surely they would have been quite “remarkable” to Keyser, as well as frightening and memorable, if she had noticed any of them. Moreover, it’s hardly plausible that Keyser could have been completely oblivious to the loud and chaotic scene going on around her, particularly since she was one of only two other people in the house. The lawyer’s suggestion that Keyser put all of it out of her mind because nothing bad happened to her personally is no more plausible.

Finally, victims of sexual assaults often fail to tell others about them for a variety of reasons. But is it plausible that Blasey Ford would not have said anything to Keyser about Kavanaugh and Judge either as she was fleeing the house or within days thereafter, if only to warn her about them? After all, she describes them as dangerous, perhaps even homicidal, sexual predators and it was certainly foreseeable that her close friend Keyser might encounter them again. At the very least, one would have expected Blasey Ford to give Keyser (as well as her other friends who ran in the same circles) a general warning to steer clear of these guys without necessarily going into the details of her assault.

Of course, none of the above proves that Blasey Ford’s accusation is untrue. Absent a Perry Mason moment at the upcoming hearing or another game-changing development, we probably will never know for sure where the truth lies here. However, the lack of recall by anyone supposedly present at the party, particularly Keyser, raises a host of questions for Blasey Ford. Hopefully, they will be explored fully and fairly at the hearing.

N.B. The Kavanaugh confirmation mess changes daily. New uncorroborated charges of sexual misconduct against him emerged last night. It would not be surprising to see more come out of the woodwork as the week progresses. However, such accusations may backfire against Kavanaugh’s opponents and generate sympathy for him if they continue to be unsubstantiated and increasingly far-fetched. For example, Michael Avenatti, showboating lawyer for porn star Stormy Daniels, claims to have multiple witnesses who say Kavanaugh organized and participated in gang rapes of drunken girls while in high school. If the FBI missed something of this magnitude during their many background investigations of Kavanaugh, calls for them to do more on the case clearly are misguided.

 

 

 

 

 

Republicans were roundly condemned for denying Merrick Garland a confirmation hearing. If his hearing would have degenerated into anything like Kavanaugh’s, maybe they did him a favor. The Kavanaugh hearing unfolded with all the seriousness and probity of a Jerry Springer show. CNN derided it as “one of the most vindictive and ill-tempered congressional hearings in memory.” The New York Times described it as the “new reality” of Supreme Court confirmation hearings, consisting of “pandemonium, protesters and razor-sharp partisan lines.” Republican Senator Lindsay Graham observed that comparing the hearing to a circus was unfair to circuses.

Republicans got it off on the wrong foot by pushing too quickly in their desire to get Kavanaugh seated by the start of the Supreme Court’s October term. This resulted in an obviously rushed document-production process featuring a massive data dump on the eve of the hearing and the initial withholding from public access of documents that were later cleared for release. However, disputes over documents were largely a sideshow. Most Democrats announced their undying opposition to Kavanaugh as soon as he was nominated or even before. It’s clear that all Democratic members of the Judiciary Committee were poised to vote no even had they been furnished every unredacted page of every document that passed Kavanaugh’s way during his White House years.

With Chairman Grassley only 13 words into his opening statement, Democrats began taking turns attempting to sabotage the hearing with carefully choreographed interruptions expressing faux outrage over document issues. They were abetted by equally organized outbursts from plants in the audience. One wonders how the protesters seemingly monopolized public seating. Did they crowd out ordinary members of the public who simply wanted to observe the hearing? Do they face any consequences? No matter; Democratic senators generally praised the protesters for their outrageous behavior. In a particularly disingenuous exchange, Senator Durbin told Kavanaugh:

“There have been times where [the protesting] was uncomfortable. I’m sure it was for your children. I hope you can explain this to them at some point but it does represent what we are about in this democracy . . . What we’ve heard is the noise of democracy.”

What was Kavanuagh to “explain” to his young daughters, that the vituperation heaped on their dad by an uncivil mob was a civics lesson-worthy example of democracy in action?

Outbursts from the audience persisted throughout the hearing as did grandstanding and demagoguery by senators opposed to Kavanaugh. Two Judiciary Committee Democrats, using the hearing as a stage to audition for their upcoming presidential election bids, led the charge. Kamala Harris was the first to interrupt Grassley and later drew attention by her evidently false and McCarthyesque insinuations that Kavanaugh had contacts with Trump lawyers relating to the Mueller investigation. However, the grandstanding Oscar went to Cory (“Spartacus”) Booker, who flaunted his courage in violating Senate rules and risking expulsion to release confidential emails about Kavanaugh. It turned out that the emails already had been cleared for release, as he apparently knew. In any event, they had little significance. (See here and here.)

There’s a tendency to pick “winners” and “losers” from such events. In that spirit, I’d offer the following:

Kavanaugh was the primary winner. He successfully executed the standard nominee game plan of displaying legal acumen while saying little of substance, avoiding major gaffs, and suffering abuse from senators as gladly as possible. From a nominee’s perspective, the confirmation process has become akin to a fraternity initiation rite in which the goal is to emerge unscathed from a few days of unpleasant but inevitable senatorial hazing.

Presidential wannabes Harris and Booker also could be considered winners insofar as their histrionics played well with the Democratic base and their media allies. (See here and here.) However, this doesn’t bode well for the public. It signals that Democrats plan to defeat Trump in 2020 by out-Trumping him with falsehoods, violation of norms, and boorish behavior that equals or exceeds his own.

It’s hard to see any positives for other Committee Democrats. They seem to have won no converts. If anything, their over-the-top theatrics probably solidified support for Kavanaugh among Republicans and pushed the few Democratics still on the fence closer to voting for him. One of these fence-sitters, Joe Manchin, said of their tactics: “Not the way I was raised.”

In fairness, Democrats had little ability to impede Kavanaugh. They effectively made themselves irrelevant bystanders this time around with their pointless filibuster of the Gorsuch nomination. Their only realistic goal was to show their base what a disruptive “resistance” they could be. But their efforts fell short even here as they were still rebuked by leftist interest groups. These groups reserved special scorn for Ranking Committee Member Dianne Feinstein who was the one Democrat to refrain from the initial interruptions and, even worse, had the temerity to apologize to Kavanaugh for the “circumstances” of the hearing.

In the final analysis, the primary losers from this sorry spectacle are our governmental institutions, and ultimately therefore, all of us. For those (hopefully few) who take it seriously, the hyperbolic rhetoric about Kavanaugh undermines confidence in his integrity as a judge. More generally, the increasing politicization of judicial confirmations demeans and threatens the integrity of the federal judiciary as a whole. Partisans on both sides constantly reinforce by their words and actions a growing perception that judges are merely “politicians in robes” who decide cases based on their policy preferences rather than objective legal criteria.

The Senate also emerges as a major loser. Its abuse of confirmation hearings over the years has stripped them of any value. Confirmation hearings for Supreme Court nominees are of surprisingly recent vintage. The first occurred in 1916, and it was not until 1959 that a nominee was subjected to serious questioning. Hearings over the next few decades were sometimes illuminating in exposing the weak qualifications or ethical shortcomings of several nominees. However, their value greatly diminished in the aftermath of the 1987 Robert Bork fiasco. Bork, an eminently qualified if arrogant nominee, engaged in substantive and robust debate with Senators at his ill-fated confirmation hearing. For this, he was mistreated so severely that his name became a verb. (Bork: To “obstruct (someone, especially a candidate for public office) through systematic defamation or vilification.”)

Later nominees learned from Bork’s experience that the best approach is to say as little as possible about their substantive legal views. This led current Justice Elena Kagan to describe confirmation hearings (some years before her own) as a “vapid, hollow charade.” With Kavanaugh, the hearings have degenerated from charade to downright ugly farce. On top of this, the willingness (even enthusiasm) of Senator Booker and others to flout Senate rules and release confidential documents (or at least pretend to do so) will likely result in even greater reticence to share documents with the Senate for future confirmations.

Confirmation hearings have become so worthless, if not worse than worthless, that some have called for their abolition. A less extreme approach might be to remove cameras from the hearing room. This would at least discourage the shameless posturing and demonstrations. One recurring question asked at these hearings is whether the Supreme Court is right to prohibit television coverage of its proceedings. Kavanaugh’s hearing certainly strengthens the case for continuing the ban.

The media face major challenges in the age of Trump when they are labeled the “enemy of the people” and their work product is condemned as “fake news.” In the face of such attacks, it’s perhaps understandable that many journalists respond in kind. However, public confidence in the media has been on the decline for years, well before Trump came on the scene. If journalists want to regain their credibility, they need to move away from their fixation on Trump and take a hard look in the mirror. There are many root causes for poor perceptions of the media that have nothing to do with Trump’s bombast.

Self-absorption. While the media perform a vital service in our society, they tend to focus too much on themselves and exaggerate their own importance. Grandstanding reporters like CNN’s Jim Acosta draw media coverage but probably turn off most of the public. The recent organized campaign of anti-Trump editorials came across as overly defensive in bemoaning the victimization of journalists. At the same time, the media seem reluctant to assume responsibility when misreporting occurs as it inevitably does. Prominent retractions and corrections are rare. Also, several major newspapers weakened accountability by abolishing their in-house “ombudsmen.”

Over-reliance on anonymous sources. National political coverage today features too little original fact-gathering and too much regurgitation of leaks from anonymous sources. This incestuous process serves the interests of leakers pushing their own agendas, often through actions that are unethical or even criminal. Reporters also benefit since they invest little effort beyond cultivating their sources. However, it doesn’t serve the public, who are left with no way of assessing the credibility of the reports.

A striking example is CNN’s recent “bombshell” story that former Trump attorney Michael Cohen would attest to Trump’s prior knowledge of his son’s infamous Trump Tower meeting. (More on this below.) The story was quickly parroted by other media outlets but now has been largely debunked. Meanwhile, CNN still stands by its story. This episode violates many journalistic ethical standards, including the following:

• Take responsibility for the accuracy of work.
• Verify information before releasing it.
• Use original sources whenever possible.
• Identify sources clearly to give the public as much information as possible to judge the reliability and motivations of sources.
• Consider sources’ motives before promising anonymity. Reserve anonymity for sources who may face danger, retribution or other harm and have information that cannot be obtained elsewhere. Explain why anonymity was granted.
• Acknowledge mistakes and correct them promptly and prominently.

Unfortunately, much reporting today violates one or more of these standards although less dramatically than the CNN episode.

Insularity, superficiality, and groupthink. Much journalism today lacks context, critical analysis and insight. These shortcomings recur across the ideological spectrum and probably stem more from intellectual laziness than bias. A prime example, and the greatest single hit to media credibility in recent history, was their almost universal cluelessness over the 2016 presidential election. In the immediate aftermath of the election, most media types blamed poor polling. However, based on additional analysis, Nate Silver at FiveThirtyEight attributed the failure to–

“real shortcomings in how American politics are covered, including pervasive groupthink among media elites, an unhealthy obsession with the insider’s view of politics, a lack of analytical rigor, a failure to appreciate uncertainty, a sluggishness to self-correct when new evidence contradicts pre-existing beliefs, and a narrow viewpoint that lacks perspective from the longer arc of American history.”

A study published in the Columbia Journalism Review sounded similar themes, concluding that “fixing the information ecosystem is at least as much about improving the real news as it about stopping the fake stuff.”

There is little evidence of lessons learned from the 2016 debacle. Most media outlets still appear to  filter what and how they report through narrow paradigms and serve largely as echo chambers for those perspectives. Similar themes are repackaged day after day in news stories and opinion pieces. For example, much of the media have flogged the theme of possible Trump complicity in Russian 2016 election interference ever since the election despite the absence of any supporting evidence to date.

So wedded are they to the collusion narrative that they cite as confirmation facts that imply the opposite. A recurring example is the Trump Tower meeting in which Russians offered to provide “dirt” on Clinton but actually came to lobby on another issue. It defies common sense that this farcical bait-and-switch meeting would have occurred if there existed an actual collusive back channel between Trump forces and the Russians. (See here and here.)

Mixing fact and opinion. The line between factual reporting and editorializing is increasingly blurred. One troublesome example is “fact-checking.” A recent study found that almost 25 percent of the Washington Post’s fact-check columns over an extended period addressed opinions rather than statements of fact. The Post’s fact-checkers have come in for criticism even when they assess facts. In  one case they distorted and then assigned their worst rating of four “Pinocchios” to a statement by Trump that was factually accurate and straightforward. Considering that Trump spews falsehoods constantly, fact-checking him should be like shooting fish in a barrel. Yet fact-checkers undermine their credibility when they overreach like this.

Absence of engagement and analysis. There is plenty of ideologically tilted reporting and punditry to choose from; it’s easy to find content that suits every taste. However, these contrasting narratives are like ships passing in the night. What’s missing is substantive analysis that engages with and meaningfully explores competing viewpoints. The only media outlet I can think of that does this consistently is PBS. Sadly, the public now may be so polarized that there is no longer a commercially viable market for the kind of objective, in-depth coverage that programs such as the PBS News Hour provide.

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Surely the Trump era presents a critical need for objective, substantive, and credible journalism. However, much of our media descends to Trump’s level rather than rising to the challenges he poses. Unfortunately, journalistic excesses play into Trump’s hands by diverting attention from his actions, providing fodder for his supporters, and giving pause to those who are skeptical of him. This will only change if journalists get a grip, step up their game, and reform their practices.

Supreme Court confirmation battles of late bring out the worst in whichever political party is playing defense. The process becomes more debased with each succeeding nomination. Continuing this sad trend, early signs indicate that the Kavanaugh nomination could be the ugliest yet. Kavanaugh is obviously well qualified by intellect, experience, and judicial temperament. While a solid conservative, he is clearly within the legal mainstream and his positions frequently have been adopted by the Supreme Court. It also appears, at least as of now, that he presents no ethical concerns. The only character flaw identified thus far is the scandalous fact, breathlessly reported by the Washington Post’s investigative staff, that he once “piled up credit card debt” to buy baseball tickets for himself and his friends and to finance home improvements. (Apparently the debt was paid off.)

Nevertheless, almost all Democrats are poised to vote against Kavanaugh even before the confirmation process gets into full swing. They are led by Chuck Schumer, who vows to “oppose him with everything I’ve got.” The Post reports that Schumer joined all of the Democrats on the Senate Judiciary Committee outside the Supreme Court on the day following the nomination “to deliver a direct appeal to Americans to rise up in opposition to Judge Kavanaugh’s nomination.” Schumer and most Democrats are refusing even to meet with Kavanaugh until a deal is reached on their demand for a massive trove of documents Kavanaugh processed during his White House service, many of which seem irrelevant to his confirmation.

Hyperbolic rhetoric and distortions of Kavanaugh’s record are flooding the media. (See, for example, here and here.) The most extreme instance of this (so far) is a petition  opposing Kavanaugh that describes him as “an intellectually and morally bankrupt ideologue” and—wait for it–a threat to human life. The petition concludes with an ominous warning that “people will die if he is confirmed.” This petition was not produced by the Onion, late night TV comics, or grandstanding Hollywood lefties. Rather, it comes from alumni and faculty of Yale Law School and other branches of that university who are, presumably, otherwise rational. Republican Senator Ben Sasse aptly observed on the day after the nomination: “We’re less than 24 hours into this, and folks are already declaring that if you can’t see that Brett Kavanaugh is a cross between Lex Luthor and Darth Vader, then you apparently aren’t paying enough attention.”

With the ink barely dry on the nomination papers, we’ve already descended into “Kavanaugh Derangement Syndrome” territory. Unfortunately, it’s likely to get worse as the confirmation process moves forward.

 

Sometimes it’s hard to figure out who’s worse: Trump or his critics. Trump clearly hit a new low with his disgraceful Helsinki press conference in which he took the word of Putin over U.S. intelligence agencies concerning Russian interference in the 2016 election. His performance was rightly greeted with almost universal scorn across the political spectrum. (Faced with overwhelming criticism, Trump now claims, no doubt disingenuously, that he “misspoke.”) Repeating a familiar pattern, however, some Trump critics couldn’t resist going beyond the merits and descending to his level with their own outrageous hyperbole.

The most egregious excess was the accusation that Trump’s statements at the press conference somehow amounted to “treason.” One might expect this kind of nonsense from late night TV comics and hopelessly biased politicians and pundits. However, respected columnist Thomas Friedman joined in as did former CIA Director John Brennan. Brennan’s version takes the cake. He tweeted:

“Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous. Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin. Republican Patriots: Where are you???”

These charges are baseless. Article III, section 3 of the Constitution states that “[t]reason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Treason is the only crime specifically defined in the Constitution. It is well established that the definition can be met only when the United States is engaged in declared or open warfare with such “enemies.” One expert observed that the framers saw the need to define  treason so narrowly and to place it in the Constitution in order to ensure that this concept was not weaponized for use against political opponents.

Of course, that is exactly what Trump’s critics are doing here. Such empty rhetorical excess plays into Trump’s hands by undermining the credibility of those who voice it—particularly Brennan, a central player in the intelligence community’s assessment of Russian interference. It also serves to further politicize this already thoroughly politicized subject. The threat of continuing efforts by Russia to undermine the integrity of our elections is undoubtedly real, and it could become critical if the Russians (or other bad actors) are able to exploit our cyber vulnerabilities and penetrate state election machinery. Continuing to treat this subject as a political football and using it to bait Trump impedes the vital mission of investigating these threats thoroughly and objectively so we can adopt the necessary countermeasures.

 

When it comes to Supreme Court confirmations, the hypocrisy by both political parties is as transparent as it is breathtaking. Recall the (legitimate) outrage voiced by Democrats not long ago when Republican Leader McConnell refused to accord the slightest good faith consideration to former President Obama’s nomination of Merrick Garland, a highly qualified candidate for the Court. Fast forward to President Trump’s nomination yesterday of Brett Kavanaugh, another highly qualified candidate. As soon as the Kavanaugh nomination was announced and before the confirmation process began, Senate Democratic Leader Chuck Schumer vowed to “oppose him with everything I’ve got.”  A number of other Democratic Senators echoed this pledge. At least one Democratic Senator announced his refusal to consider Trump’s nominee even before the nomination was announced. The substantive difference between McConnell’s stance on Garland and the Democrats’ stance on Kavanaugh is?

The recent report by the Justice Department Inspector General (IG) on the FBI’s Hillary Clinton email investigation is being sliced and diced in many  directions by a host of pundits and political partisans. Largely overlooked in all the spin is what in my view constitutes the most troublesome aspect of the Clinton investigation addressed in the report: The nearly one-month gap between when the FBI discovered a large trove of Clinton-related emails on Anthony Weiner’s laptop and when they started to examine these emails.

Two basic points emerge from the IG report’s treatment of this subject. First, the report’s findings and conclusions make a compelling case that the delay in examining the Weiner emails was indeed motivated by political bias or other improper considerations. Specifically:

• The report identifies Peter Strzok as the FBI official directly responsible for following up on the Weiner emails.
• The report presents extensive evidence of Strzok’s bias against Trump, including his explicitly stated determination to prevent Trump’s election.
• The report finds that within days after the discovery of the Clinton-related emails on Weiner’s laptop in late September 2016, FBI officials in Washington understood the extent and potential significance of these emails and had all the information needed to obtain a search warrant to examine them.
• The report demonstrates that a conscious choice was made not to pursue the Weiner emails until after the presidential election. FBI officials, including Strzok, conceded this choice and offered various explanations for it.
• The report concludes that none of the proffered explanations was persuasive. In particular, it states “we do not have confidence that Strzok’s decision” in this regard “was free from bias.”

Second, the delay in examining the Weiner emails triggered a series of events that may well have changed the election outcome. Putting off the Weiner emails until after the election became untenable in late October when the FBI’s New York office pushed back against the delay and, in effect, forced Washington officials to act. This, of course, caused two weeks of political frenzy in the waning days of the presidential campaign, starting with FBI Director Comey’s infamous October 28 letter notifying Congress that the Clinton investigation was being reopened. Not until two days before the election did Comey send a second letter announcing that the Weiner emails did not affect the Clinton case after all.

Many partisans as well as some independent observers are convinced that Comey’s October 28 letter tilted the election to Trump. We may never know for sure whether Strzok delayed the examination of Weiner’s laptop in order to give Clinton a boost over Trump. However, whether or not this was his plan, the delay certainly had the opposite effect. So much so that, in a remarkable twist of irony, Trump may have Strzok to thank for his election.

Background of the IG review. The IG review focused on three major phases of the Clinton email investigation: the investigative steps leading up to the decision to decline prosecution of Clinton, the declination decision itself, and the reopening of the investigation after Clinton-related emails were found on Weiner’s laptop. For each of these phases, the IG considered whether investigative or prosecutorial decisions were based on political bias or other improper considerations.

The report has been described as concluding that none of the decisions resulted from political bias. However, this is not what it says. In examining the question of bias, the IG applied two distinct tests: First, was there “documentary or testimonial evidence that improper considerations, including political bias, directly affected specific decisions”? Second, were there plausible merit-based justifications for the decisions or were the stated justifications merely “pretextual”? (iii) (Parentheticals reference page numbers in the report)  With regard to the latter, the report observed:

“The question we considered was not whether a particular investigative decision was the ideal choice or one that could have been handled more effectively, but whether the circumstances surrounding the decision indicated that it was based on considerations other than the merits of the investigation. If the choice made by the investigative team was among two or more reasonable alternatives, we did not find that it was improper even if we believed that an alternative decision would have been more effective.” (ii-iii)

The IG found no “documentary or testimonial evidence” that any decision was “directly affected” by political bias or other improper considerations. This test sets an extremely high bar that essentially nothing short of a confession would meet. Thus, the absence of such “smoking gun” evidence is unsurprising (although the Strzok evidence comes very close). On the second and more realistic test, the IG concluded that all decisions it evaluated up to and including the declination were reasonably justified on the merits and thus appropriate exercises of discretion. As discussed below, however, the IG concluded that the FBI’s handling of the Clinton-related emails on Weiner’s laptop was a very different story.

The Weiner emails. In September 2016, after the Clinton investigation closed, the FBI’s New York field office began investigating Weiner, the husband of top Clinton aide Huma Abedin, for an improper online relationship with a minor. Pursuant to a search warrant, the New York agents seized Weiner’s laptop and other electronic devices on September 26. The New York FBI case agent charged with examining these devices discovered almost immediately that the laptop contained a huge trove of Clinton-related emails. Recognizing its potential impact on the Clinton investigation, he promptly notified his superiors of this discovery. Just two days later, on September 28, New York agents briefed the Washington FBI on the existence of the email trove via a video teleconference. According to the IG report, Deputy FBI Director Andrew McCabe led the teleconference and about 39 senior FBI executives likely participated. (vii) McCabe told the IG that he viewed the discovery of the emails as a “big deal” (281) and on the same day he instructed Strzok to have his team contact the New York office about them. (279)

Strzok was the leader of the FBI’s Clinton email investigative team. (43) According to McCabe, he also was directly responsible for following up on the Weiner laptop. (310) Strzok and Lisa Page, his paramour and another senior FBI official heavily involved in the Clinton investigation, are now widely known for their anti-Trump texting. The most notorious example, first revealed in the IG report, is Strzok’s assurance to Page that “We’ll stop” Trump from ever becoming President. (xii)

The logical next step at this point was for the Washington FBI agents to obtain their own search warrant to access and review the Clinton-related emails on Weiner’s laptop. (The New York agents investigating Weiner had neither the legal right under their search warrant nor the background to review the Clinton emails.) Remarkably, however, no effort was made to get the search warrant for almost a month. The IG report states that several discussions about the Weiner emails occurred on October 3 and 4 but:

“[A]fter October 4, we found no evidence that anyone associated with the [Clinton] investigation, including the entire leadership team at FBI headquarters, took any action on the Weiner laptop issue until the week of October 24, and then they did so only after the Weiner case agent expressed concerns . . . prompting [New York officials] to contact the Office of the Deputy Attorney General (ODAG) on October 21 to raise concerns about the lack of action.”

Specifically, the Weiner case agent feared that the delay in dealing with the emails he had discovered would eventually become known and he would be “scapegoated.” (305) In this regard, the New York officials cautioned that the case agent “was stressed out and might act out in some way.” (304)

The IG report rather dryly observes that this warning from New York generated “renewed interest” on the part of the Washington FBI in the Weiner email issue. (311) As they say, the rest is history. Within the next two weeks Washington finally got its search warrant, Comey sent his October 28 letter, FBI agents worked “around the clock” to review the emails, and on November 6—just two days before the election–Comey notified Congress that the emails did not change the FBI’s earlier conclusions regarding the Clinton case.

As noted previously, Comey’s October 28 letter may well have changed the election outcome. The fallout from the letter certainly dealt a tremendous blow to the FBI’s credibility and stature as a nonpartisan organization. Had the FBI promptly accessed and evaluated the Weiner emails, these consequences very likely would have been avoided. To be sure, Comey might have felt obliged to notify Congress even if this effort had started in early October. However, the process would have played out weeks rather than days ahead of the election, thereby giving the public considerably more time to process the FBI’s eventual conclusion that the Weiner emails did not affect its Clinton findings.

Supposed explanations for the delay. The IG report didn’t uncover a formal, documented decision to delay action on the Weiner laptop. However, it’s clear from the report that Strzok, perhaps with the involvement of other FBI officials, made a conscious and informed choice to hold off on the Weiner laptop until after the election. Strzok said as much to the IG. (See below) There is no chance that the matter simply fell through the cracks.

FBI officials offered the IG a litany of explanations for their failure to take prompt action on the Clinton-related Weiner emails. The IG report analyzed the explanations and found every one of them to be “unpersuasive.” This characterization is charitable given the report’s conclusions that the proffered explanations ranged from the “illogical” (326) to the following outright falsehood:

“Several FBI witnesses told us that the reason the FBI decided to seek a search warrant on October 27 was because the [Clinton] team learned important new information about the contents of the Weiner laptop at around that time. We concluded, however, that this decision resulted not from the discovery of dramatic new information about the Weiner laptop, but rather as a result of inquiries from the Weiner case agent and prosecutors from the U.S. Attorney’s Office for SDNY on October 21.” (330)

Indeed, the IG found that by no later than September 29, the Washington FBI had learned virtually every fact that it cited in late October as justification for obtaining the search warrant. (324)

Strzok suggested that he didn’t expect the emails to be significant and that they were just a lead to be pursued at some point, “January, February 2017, whenever it gets done.” (298) He considered the perceived need to pursue the emails more urgently to be “misplaced” since “[w]e did not know what was there.” (326)

Strzok (and others) also said that they considered the Russia investigation a higher priority than the Weiner emails. (328-329) The IG found, however, that the FBI had ample resources to assign to the Weiner emails. The report added with specific reference to Strzok’s role:

“In assessing the decision to prioritize the Russia investigation over following up on the [Clinton]-related investigative lead discovered on the Weiner laptop, we were particularly concerned about text messages sent by Strzok and Page that potentially indicated or created the appearance that investigative decisions they made were impacted by bias or improper considerations. . . . Under these circumstances, we do not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the [Clinton]-related investigative lead discovered on the Weiner laptop was free from bias.” (p. ix)

The IG was right to be particularly skeptical of Strzok’s stated justification. His explanation that the Weiner emails should not be given priority attention because the FBI “did not know what was there” is circular and implausible on its face. Obviously, the way to find out “what was there” was to take a look. Strzok could easily have obtained a search warrant and sent a few agents “to get eyes on this thing and figure out what we have,” as McCabe put it. (281) His decision to forego even this minimal effort clearly demonstrates willful blindness, reflecting a desire not to know what was in the emails.

The bogus nature of this explanation becomes even clearer when one considers the background at that time. Strzok’s superiors in the FBI immediately recognized the discovery of the Weiner emails as a “big deal” and expected him to take action. The FBI leadership treated it as an even bigger deal when they finally took action in late October. It must have been obvious to Strzok as well that if there was any chance that the Weiner emails contained anything new, they could potentially impact the disposition of the Clinton investigation as well as the upcoming presidential election.

Conclusions. The IG report stops short of flatly asserting that the FBI’s delay in dealing with the Weiner emails resulted from political bias or other improper considerations. However, the facts it presents virtually compel this conclusion under the IG’s own criteria. The report points to Strzok as the FBI official directly responsible for the delay, although certainly not the only one who could (or should) be accountable. It makes clear that the delay was no accident. It presents abundant evidence of Strzok’s political bias, including his willingness (indeed, his apparent determination) to “stop” Trump’s election. It then concludes that there was no legitimate reason for the delay—i.e., all the stated justifications were pretextual. Connecting these dots, the delay could only be attributable to political or other improper considerations.

Delaying the examination of the Weiner emails would have helped Clinton’s electoral chances had it run its course. As fate would have it, however, the FBI was forced to dramatically reverse course in the run-up to the election. One can speculate on whether the delay was motivated by political bias per se or perhaps some other inappropriate reason or reasons such as avoiding embarrassment to the FBI or currying favor from presumed incoming President Clinton. What can be said with certainty is that if delay on the Weiner emails was intended to help Clinton’s electoral chances or somehow protect the FBI, it backfired spectacularly and ultimately achieved precisely the opposite effect.