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Why the Trump-Franken fight over a Minnesota judge is a bad omen for our political system

Justice David Stras

Is our system of politics and government melting down?

I’ve been wondering this for years, and lately it seems I've been asking myself the question every couple of days or so. Most days, I lean closer to believing that the answer is yes: Our system isn’t working the way it is supposed to; it isn’t working as well as it had in the past; and it feels as if it's heading for something like free-fall.

At the moment, the example on top of my mind isn’t even the fault of the current occupant of the Oval Office. In fact, it comes courtesy of what is usually (IMHO) the best-run state (or one of the best-run) in the union: our own Minnesota.

I refer to the kerfuffle over the current incumbent’s nomination of Minnesota Supreme Court Justice David Stras to a lifetime appointment as a federal judge.

But before going over the background of the Stras nomination and the current state of play, let me just get one main point off my chest: This kerfuffle is an adjunct to the previous kerfuffle (so big that we need a bigger word than “kerfuffle,” though perhaps one smaller than “cataclysm”) over the Senate’s treatment of President Obama’s 2016 nomination of Judge Merrick Garland to fill the U.S. Supreme Court vacancy created by the death of Justice Antonin Scalia.

You may recall that the Republican leadership of the Senate, claiming a bogus historical precedent that did not exist, refused to even hold a hearing on the Garland nomination.

Sen. Al Franken (who, despite not being a lawyer, serves on the Judiciary Committee) took the Garland matter hard. The Republicans managed to run out the clock on Garland, and their presidential nominee won the election.

That new president, Trump, nominated the smart, competent, very conservative Neil Gorsuch to fill the seat for which Garland had been nominated. When Franken got to question Gorsuch in committee hearings, he tried (but failed) to get him to comment on whether Garland had been treated fairly.

Gorsuch was endorsed by the Judiciary Committee on a straight party-line vote, and then the Senate voted on strict party lines to do away with the filibuster that Democrats would otherwise have used to block his confirmation. He was confirmed with an almost entirely party-line vote and will serve for life. 

The much larger event of the Garland nomination (or non-event, since holding a confirmation hearing on Garland would have been an event) created the vital context for the Stras matter, and anyone who tries to discuss the Stras matter without including a discussion of the Garland matter is not being straight.

That lack of straightness has infected a lot of people: U.S. Rep. Erik Paulsen, a loyal Republican, wasted an entire Star Tribune commentary attacking his Senate colleagues for holding up the Stras nomination without mentioning the Garland case. And Scott Johnson, of the Powerline blog, has managed a three-part series criticizing Democrats on the Stras matter, also without mentioning Garland. 

OK, that’s my main contribution. If you are going to denounce how Franken and Klobuchar are blocking Stras without bringing up the Garland case, you are either clueless or intellectually dishonest.

But in case you haven’t been paying attention to the Stras chapter: Justice Stras is smart, likable and competent (as is Garland). Stras is also very conservative. For most of Supreme Court history the nomination of a smart, likable, competent, honest candidate for the federal court would result in confirmation. But that’s one of those norms that is breaking down, and we haven’t yet figured out how far down it will break.

At the moment, Stras' nomination is stalled because of “blue slips.” A Senate tradition allows senators from the home state of a federal judicial nominee the opportunity to block the nomination by declining to hand in an actual blue slip of paper endorsing — or at least accepting — the appointment. Franken told the Strib yesterday that he “finds Stras too conservative for an already conservative bench,” and isn't turning in his blue slip.

He left the background of the Garland/Gorsuch matter unmentioned at the time, although his anger over it is perfectly clear. 

“The president should be seeking out judges who bridge the issues that divide us,” Franken also told the paper yesterday. “I fear that Justice Stras’s views and philosophy would lead him to reinforce those divisions and steer the already conservative Eighth Circuit even further to the right.”

Among the older norms of judicial confirmation matters was that senators would focus on competence and character and not explicitly talk about ideology. Franken’s statement suggests that one is dying off. In fact, a White House official who wouldn’t give his/her name denounced Franken‘s statement but said, “Senator Franken’s opposition to Justice Stras is partisan, obstructionist politics at its worst.”

That anonymous spokesperson didn’t comment on whether this display of partisan, obstructionist politics at its worst was actually worse than what the Repubs did to Garland. Must’ve slipped his or her mind.

In Franken’s own statement announcing his decision to oppose Stras’ nomination, he said some nice things about Stras but mentioned that he was troubled that Stras identifies Justices Clarence Thomas and the late Antonin Scalia as his role models. Both are among the most conservative Supremes in modern history.

Sen. Amy Klobuchar said she would be willing to see Stras get a committee hearing, but supports the prerogative of a home-state senator to block a nominee via blue-slip, which is a law, or maybe just a rule, or possibly a mere “norm,” that may be wiped away as easily as the power of the filibuster has been.

In Federalist Paper #48, “Father of the Constitution” James Madison warned against an excessive reliance on “parchment barriers” to make a system of government work against “the encroaching spirit of power.”

We Americans, nonetheless, do put a lot of reliance on laws and rules that are written on parchment (or, nowadays, on paper) and sometimes we rely on lesser barriers that we can call “norms.” On the 200th anniversary of the Constitution, I wrote a long series for the Strib that was subsequently published as a book, called “The Myth That Binds Us.” The “myth” was the Constitution, which we chose to believe held all the answers needed to preserve our democracy and govern ourselves. The words on the Constitutional parchment have changed little, but its power to bind us seems weaker than ever.

That's the big question. If our system of politics and government consists of not only laws and rules and constitutional provisions but also myths and norms that work only if we believe in them and voluntarily abide by them — if we continue to demonstrate that those norms can be disregarded when they get in our way — will our system melt down?

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Comments (31)

Hypocrites are repubs

Interesting there are complaints about blocking this judge, when the repubs took away Obama's supreme court justice.
Sadly, there does not seem to be any limits to the hypocrisy of the right.

Hypocrisy is just one form of dishonesty

Remaining silent while your colleagues or "party leader" refuse to do their job, break the law, lie under oath, practice corruption openly, refuse to uphold norms of decency, and lie publically (day after day after day) are some other forms.

It is not just a few former members who are quitting the party and/or penning heartfelt grief at the "moral rot" of the GOP.

I have never been a signed-up member of the DFL or national D party, partly because they are so poor at both messaging and fighting back when attacked unfairly. Who wants to be a patsy? BUT now I am considering it.

Competent

With some of trump's picks competency is an issue - science picks without science backgrounds, a party planner running a housing department, resume fakers in multiple positions, etc. But what is a competent judicial pick? Someone who has passed the bar? Who hasn't been sanctioned? Gorsuch was called competent, but his first opinion contained obvious factual errors.

The reality is this is all about politics and ideology, and Stras is a guy who will oppose civil rights, voting rights, marriage equality and the rights associated with it, worker and safety protections, and environmental laws. Does that make him incompetent? No. But it makes him a terrible pick for the court.

Gorsuch is so smug and self-righteous, that

...he may have lost the ability to learn about his own opinions and mindset at this point in his life.

I predict that unlike Roberts, every decision Gorsuch makes will come out in favor of business and/or reactionary thinking. If you have to pick a category of judicial "-ist" to fall in, the textualist is the easiest one to justify your pre-conceived opinions and keep that self-righteous attitude Scalia was so awesome at maintaining.

He may have to give in if Trump starts forcibly housing soldiers in private houses.

And I predict his self-righteousness will be displayed in frequent written dissents from the few cases that do not go the way he votes.

Another norm?

An excellent commentary whose broad point about the decadence of our shared consensus on governance I share. I've heard too many Trump supporters indicate support for a dictatorship while on the left there is no end to the rights being invented.

But a question: is there also not a norm that the state's two senators bring forth a recommended nominee?? Maybe I am wrong about that.

Another norm Trump violated.

It is probably because of fatigue trying to keep track of trump's transgressions, and the need to just focus on the most dangerous and illegal ones, that makes writers like Black forget to mention that the norm in civil times was to ask for nominees from the States Senators.

And Franken and Klobuchar could've put forward some (have not seen if they did or did not), and referred to being ignored in their statements on this matter.

Once again we are reminded of

Once again we are reminded of how much informal (non-written) tradition kept our government on the rails. Violation of norms only requires the chutzpah of a powerful actor and, all of a sudden, it's all up for grabs. And it turns out that violations of law only occur if there is prosecution for those violations.

Eric is all in a dither

Eric is all in a dither because Senator Franken exercised his prerogative to deny an automatic hearing for a nominee for a lifetime post on the federal bench. Franken used what is one of those Senate norms that Mitch McConnell will swiftly destroy if he feels this nomination of a very conservative judge is necessary. It's a nicety, and McConnell just walks over traditional Senate niceties.

In this discussion Franken doesn't have to spend time belaboring the Republicans' mind-boggling 2016 Constitutional insult to President Obama (and his SCOTUS nominee Garland). Any senator has the right to object to the appointment of an unacceptably and tangibly ideological judge on what Franken correctly describes as a too-conservative court.

I am pleased as punch that Al Franken has acted like a strong principled Democrat with two strong reasons not to "blue slip" a nominee simply because of some long-disappeared judicial "comity" that lets anyone at all just slide through because they have all the boxes checked for "qualified."

Let's remember, too: This nomination was made without any consultation with Minnesota's two Senators. That's another Senate tradition that has been traduced here. So let's not join Eric and the Republicans who are lamenting Franken's laudable action.

A Non-Lawyer? Good.

//Sen. Al Franken (who, despite not being a lawyer, serves on the Judiciary Committee)

I for one am glad we have at least one non-lawyer on that committee; wish there were more. No personal disrespect to my J.D. pals, but at some point the broader points of what is right and wrong get lost in the weeds of process and legalese. Having a non-lawyer on the committee brings a needed perspective, one that is not so enmeshed in legal minutiae.

I feel slightly

I feel slightly misinterpreted by the comment of Constance Sullivan above. Sen. Franken is empowered to withhold his blue slip on any basis. He said he was doing so in this case to block a conservative. I don't doubt that this is part of his motivation. But, without Franken making it explicit, I interpret it as a move that responds to what the Republicans did on the Garland nomination. If I interpret that correctly, I have plenty of sympathy for his move and am not in a dither over it. I use it to illustrate my tired old point about how heavily our system relies on norms, which, being just norms, are pretty much unenforceable. As we advance (or does one mean descend) into full-scale partisan/ideological combat, many elements that we once considered part of the system will disappear with consequences that are hard to foresee.

This is Franken's quote .....

“Justice Stras’s professional background and record strongly suggest that, if confirmed, he would embrace the legacy of his role models and reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box,”

I can easily accept his position.

Filibusters and Blue Slips - Be Gone!

Let's end all the partisan hypocrisy about which party is responsible for the dysfunction in the U.S. Senate. The problem is the extra-constitutional roadblocks that are nowhere mentioned in the Constitution and which allow the minority to obstruct the majority. It's long past time to end the filibuster for ALL nominations and legislation, and to end the Blue Slip procedure which allows just one Senator to effectively defeat a nomination.

We already have enough checks and balances: the Presidential veto, a bicameral Congress, required super-majorities in the Senate for a few matters, an independent judiciary. The Senate's procedural rules are often just a way for individual Senators to avoid accountability by confusing the public as to where they actually stand. Let's have up-or-down, on the record votes for everything.

Right, John, let's have

Right, John, let's have "up-or-down" votes (after hearings) on all US judicial nominees.

By the way, are you aware of how many dozens, or hundreds, of Obama's nominees were simply never dealt with by the U.S. Senate under McConnell?

I thought not.

It wasn't just Garland. The Republicans have strategy that involves turning our federal judiciary into another Republican fiefdom. One member of the minority just stepped in and did his duty, using his right to stop one nominee. A necessary correction to that strategy (our Constitution tries to protect the minority, by the way; they can't just be stomped on.)

Take Off The Partisan Blinders

I'm every bit as informed as you are, and probably more, because I read more information sources than just the ones I agree with. The Republican Senate MAJORITY declined to vote on many of Obama's judicial nominations; if they opposed those nominations, they should have rejected them by majority rule. Al Franken is an example of a minority Senator obstructing the will of the majority.

Democrats every bit as much as Republicans want a judiciary that reflects their philosophy. A growing trend in liberal legal circles - especially among law professors - is favoring judicial rulings that mandate the implementation of left-wing policies. One branch of this thinking is called Critical Race Theory, an outgrowth of Critical Legal Studies. Adherents to that theory favor contorting the Constitution to achieve a favored result, e.g. mandating single payer health insurance even if legislation isn't passed by Congress. I favor universal health care, and I'm pragmatic as to how to reach that goal - if single payer is the most efficient way, so be it. But implemented through the legislative process, not by judicial fiat, i.e. judicial supremacy.

Left wing policies

Are these "policies"' really left-wing?

Privacy is a right (freedom from both business and government easy access to personal info and belief) .

The ability of business to make a profit over the right of consumers to know how the business is treating them?

The right of businesses to influence elections where the only equality criteria is money?

Individuals are citizens, corporations are groups with narrower interests and therefore rights.

I think not.

This is a simplification, but I think you will admit that the overwhelming trend is to favor business interests over transparency and privacy rights. I think true conservatives would be worried about all individual rights and freedoms as core.

You can also argue these decisions are on principles and not on outcomes, but the outcomes are totally predictable and have been all long. Plus these judges cite outcomes as justification when their ideological ox Is gored.

Mr. Webster is mistaken

when he writes, "The Republican Senate MAJORITY declined to vote on many of Obama's judicial nominations".

The Republican majority LEADER of the U.S. Senate declined to put the Obama judicial nominations into a confirmation (voting) process. The Republican majority never had an opportunity to do anything with those nominations.

It's happening

From what I read here and elsewhere, the GOP is prepared to do away with the "blue slip" norm with this nomination. But I agree with you. I'm hoping the Dems will also force the GOP to abolish the filibuster rule for legislation and all the other archaic norms which cripple democracy. At some point, maybe we'll even get limited terms for federal judges like this Stras character. I'm glad to hear Franken "blue slipped" him. Someday, assuming the GOP doesn't succeed in completely establishing total one party plutocratic rule, the tides will change and the common people will again have a voice in governing their country.

"But that’s one of those

"But that’s one of those norms that is breaking down, and we haven’t yet figured out how far down it will break."

And now it is the author who is either clueless or intellectually dishonest.

It is broken down to the base elements. Every decision made from now on will fall on a strict party line vote. There will be no quarter given, or expected, although partisans on both sides will stamp their feet and tear their hair for the benefit of their audiences.

I can see that Franken is attempting to extract his pound of flesh; so can everyone else. The GOP will have to fall back on the same tactics (recess appointments for instance) that the Dems were forced to employ to stack the deck when the cards were in their hands.

This is government, at all levels, in the current year. Adapt or fade away.

one additional missed bit

Eric, you missed one additional factor in this particular case (whether this impacts Senator Franken's decision-making, I don't know): Justice Stras is in line for this nomination solely because of his position on the MN Supreme Court, a position he achieved not through merit but through the political ambitions of the GOP governor at the time.

Justice Stras was the least qualified appointee to the state supreme court in modern history. His appointment was about his affiliation with the Federalist Society not his legal accomplishments, and was massively influenced by Tim Pawlenty's attempt to run for the presidency. So while there may be people in the legal community rising now to say he's done ok on the bench, the reality is he should never have been there in the first place, so bootstrapping a nakedly political appointment into a lifetime appointment to the 8th circuit (where a single voice can have even more impact) is exceptionally hard to take.

It doesn't matter if David Stras is a nice guy (he is), a smart guy (he's that too), or even a fine colleague (I don't doubt that he's that too): he should not be given this appointment to the 8th Circuit.

When you throw in his history of political patronage along with the Merrick Garland situation and the absolute corruption of judicial appointments by the GOP, this is a perfectly reasonable nomination to withhold a blue slip on.

Erik Paulsen wading into this shows even further the GOP corruption on this: Stras met with the MN GOP House members (who do not have a vote on this) and did NOT schedule meetings with the MN DFL Senators (who DO have a say on this). One party has broken all of this. ONE.

Justice Stras

"His appointment was about his affiliation with the Federalist Society not his legal accomplishments, and was massively influenced by Tim Pawlenty's attempt to run for the presidency." His sole "legal accomplishment" in Minnesota was representing Governor Pawlenty in his unallotment lawsuit in 2009. He had been a member of the Minnesota bar for a little over a year when he was appointed to the court.

Claude Rains Redux

Not only is one party responsible for this, but they are shocked, shocked! to find politics being played with judicial nominations. Same deal with obstructionism.

Three Points and a Question

1. It sure is nice to see an actual Democrat with principles and the stones to live up to them.

2. Just like Paul Wellstone - "From the Democratic wing of the Democratic Party."

3. Franken for President!

Is there any chance we could ever have one whole day go by without seeing the name Trump?
Just one?

Ask Eric and your media

Whole careers are being made bashing the President and we still have 3 plus years to go. I suggest that the answer to your Trump question is no.

Well, another bubble burst eh?

Anyone who thinks the "system" was working just fine until recently is suffering from a serious case of complacency if not outright denial. Originalism is one of the most toxic exercises in intellectual fraud in US history and anyone who claims to be guided by it simply cannot be trusted to issue valid judicial opinions. Had democrats and complacent liberals not ignored or worse excepted the bizarre claims of Originalist we would have had decades of rational judicial rulings rather than ideological hack jobs pretending to be judicial rulings.

Better late than never the saying goes so Franken is absolutely correct to block any Scalia admirer from the bench any chance they get.

Agree completely

Originalism is absolutely the stupidest "legal theory" of all time in any civilized country. Pawlenty's choice of Stras is just further proof of what a lousy governor he was in the history of MN

nothing personal

But this is the kind of guy they used to wake up in the middle of the night when you got caught speeding in wisconsin.

And now the .strib editorialized against Franken's ....

Position regarding the Stars nomination. And again none of the background information I am reading here in comments is mentioned. Leads me to wonder if there has already been a soft takeover of the entire media ?

Elections Matter

What everyone seems to forget is that elections do in fact matter. Sure, you can have your complaints about how Garland was handled and maybe it was unfair that he didn't get a hearing BUT the GOP controlled the US Senate and therefore could set the agenda. On top of that, you can't talk about Garland without mentioning the Biden Rule, which Biden explained in full, his rule/intent that you don't nominate or vote on a SCOTUS justice during an election season/year. So that's the context here, Biden created a partisan rule for the GOP president when he was in the US Senate...what better place to get a rule to follow than your own opponent who is now sitting in power in the White House as the current Vice President?

Anyway, we need to understand that now the GOP controls the US House, the US Senate and the White House...how can anyone argue that it's a valid use of power for a single individual in the minority party to hold up the will of the executive and legislative branches? That stance is the most anti-democratic stance possible, no I get it, you want to #resist but you have to win elections and gain power (as a certain person name Obama once said something similar to Republicans back in 2009). You either believe in democracy or you're a hypocrite who will argue any point as long it involves your side winning or gaining an advantage...please don't be a hypocrite!

Biden

There is no "Biden" rule. Joe Biden made a speech in 1992 wherein he argued that AT THE TIME he didn't think the Senate should consider SCOTUS nominations made in the last few months of an outgoing administration. No such "rule" was ever actually adopted, nor has it ever been enforced. Note: there was no vacancy at the time Biden made his speech.

It's dishonest to pretend that a speech made over 30 years ago established some kind of inviodable rule that the Senate has been following ever since and was compelled to follow when Garland was nominated. So yes, when McConnell uses a non-existent Senate "rule" to keep a SCOTUS seat open for an entire year, we can talk about that without referencing Biden.

Yes, elections matter, but so does the responsibility to govern after elections are won. Even if you win elections you're not entitled to make up rules and abuse the power that's been granted. This isn't just a Constitutional matter, it's an existential quality of democracy. The deliberate abuse of power pushes us into crises no matter who does it. Sure, you can play "gotcha" with something Biden said in a speech 30 years ago, but the fact remains that no Senate EVER in the history of the country ever kept a SCOTUS seat open for a year by pretending a non-existent rule required them to do so. And no matter which party would do such a thing... they would be wrong to do so, whether someone else did it before or not.

Remember when

After Senator Franken's first election victory he mentioned that given the closeness of the final vote total, he would do his best to represent ALL Minnesotans. About half of the state is still waiting for him to do something for us. This isn't even a Supreme Court nominee for Pete's sake. At least it allowed Senator Amy to play both sides where her blue slip is accompanied by a "I'd have preferred a vote" which will help in her short lived Presidential run...

Why?

Why is it "Senator Franken," but not "Senator Klobuchar?" Why are men referred to by their title and last name, but the public is on a first-name basis with women?