The Failure of Process

September 22, 2020

Process that is fair and consultive is imperative for government action.

We all understand that we elect leaders to make judgments, sometimes difficult, nearing impossible judgments, about the issues facing our nation, state and communities. Many factors weigh on those judgments, from opinions of experts in whatever field is involved to personal moral grounding. Experience in how to make tough decisions, the question involved and in life itself help leaders make those judgments.

We expect differences of opinion. They are, in fact, critical to reaching the best outcomes. The judgments we expect of our leaders are never easy. Those fact-based decisions get made at a lower level, by managers, administrators and bureaucrats (in the best sense).

What makes the judgments of elected officials and judges acceptable is the process by which they are reached. Acceptable judgments are the glue that hold our society together.

To be clear, we need leaders to use a process that makes their ultimate judgment acceptable to those who strongly oppose the resulting policy. Those who favor the policy will easily accept it; the hard part is pulling together a substantial number of those who oppose the outcome.

In 2016 Mitch McConnell announced that he would not even hold hearings on Pres. Obama’s nomination of Judge Merrick Garland to the Supreme Court, saying the people should decide. In 2020 he is pushing for a quick approval of The Donald’s nominee only 40+ days before a national election. Democrats wail about hypocrisy.

But let’s be clear. In 2016 Democrats who now oppose a vote before the new President is inaugurated pushed for approval of Obama’s nominee with equal vigor.

The appearance is horrid. The process is critically flawed.

Personally, I fear and strongly oppose the likely outcome of an appointment of a Justice who is on the record opposing many of my opinions.

If the nomination and approval process were fair, however, I could not, in good conscience, oppose the outcome.

We need a change, a new process. For 2020, Senator Schumer and Vice President Biden must immediately offer to meet with The Donald’s staff who are conducting the SCOTUS vetting. They should attempt to find a nominee who is intellectually and experientially, even if not ideologically, acceptable to both sides. While The Donald may say that he, and he alone, has the power to appoint, the Constitution says that the Senate should both advice and consent. Advice, pre-nomination, is what is needed today.

Even in this hyper-partisan world, there are people who should be acceptable to both The Donald and the Democrats. After 10 minutes on Google, I came up with:

· Chief Justice of California Tani Cantil-Sakauye was appointed by a Republican Governor and has led numerous initiatives to improve the justice system;

· Larry Hogan (R-MD) currently chairs the National Governors Association;

· Prof. Jonathan Turley, George Washington School of Law, testified at the request of the Republican members of the House Impeachment Committee.

None of these would be my ideological choice, but they all have excellent credentials and, as a lifetime Democrat, I could live with any of them. That is the point. I am sure that there are many, many more.

Finally, as part of the deal, both caucuses must agree to a change in Senate rules for future years. They must agree on a specific time period before a Presidential election when the Senate will not vote on a nominee to a lifetime appointment to the Supreme Court. I suggest six months but pick a number. And the rule should require a 75% vote of the Senate to change it.

This fair and reasonable process would be a starting point to reverse the public’s loss of faith in our democratic institutions.