Laurence Tribe

Impeaching the president has been a hobby of Americans right from the beginning. George Washington faced the threat of impeachment for having John Jay negotiate a treaty with Britain instead of with France. Barack Obama was threatened with impeachment for pretty much everything he was or did. And when it wasn’t a president, it was a Supreme Court justice. Earl Warren and William O. Douglas were both the targets of Richard Nixon’s attempts at forcible removal.

Americans toss impeachment show more around like it was a common and ordinary process. No big deal. Lawrence Tribe and Joshua Matz are here to tell you it is not. To End A Presidency is a sobering dive into the reality of the process, as dictated by the Framers and as executed by lawmakers.

The book traces the thinking of the Framers, the vagueness of the mandate (Bribery, Treason, or High Crimes and Misdemeanors), and how it has been applied (or not) over the centuries. It appears to be a clever and well-structured tool to keep presidents from taking over totally. It has never been successfully implemented all the way. Richard Nixon resigned before the vote was called. Andrew Johnson avoided the axe by one vote. But this Trump fellow has the lawyers all agitated and wondering if this might be the real thing. (Spoiler alert: the authors’ conclusion is - probably not.)

Impeachment is the most serious act Congress can take – overthrowing the choice of the voters. But talk of impeachment has become so banal that in this century that both the Republicans under Bush and the Democrats under Obama have used it as a fundraising tool – to get or keep control of the House and thereby pre-empt impeachment. And of course in 2016, both candidates declared the other impeachable if elected – for “crimes” committed before they were elected. Impeachment has become trivialized and perverse.

There are details no one talks about, because few know:
-The reason the Senate must vote on conviction is because the Framers thought the Supreme Court was too small a forum. They thought the Senate, being educated elites from across the nation, would be a fairer arbiter. The House wouldn’t be fair because it had already voted by at least two-thirds to proceed.
-Vice presidents can be impeached too. This is because they used to be not so much running mates as the defeated presidential candidate. They were clearly not the choice of the voters, had already been rejected once, and could wreak havoc with whatever the president had accomplished to that point. Andrew Johnson, who stepped up when Lincoln was assassinated, is the poster child for this kind of disaster.
-There is a fallback position for Congress – a resolution of censure whereby the president is not actually removed from office, but humiliated instead. That does not require a two thirds vote by both houses as impeachment does.
-The Senate gets to vote twice – first on the impeachment articles themselves, and if any one of them passes, whether the president is also forever banned from all public office.
-The record for impeachment resolutions is held by Henry Gonzalez (D-Texas), who tried to impeach Reagan twice (Grenada, Iran/Contra) and Bush père once (Kuwait) for a total of three within a decade.
-If the House votes to impeach the president and the Senate fails to convict/carry out the impeachment, the president becomes untouchable. He can be as arrogant and obnoxious as he wants, and as abusive and vulgar as he desires, knowing they won’t try that stunt again.
-And that could lead to others in government thinking – if it’s okay for him, why not for me and us too?
-But then, declining to impeach sends the same message.

Tribe and Matz also dissect the 25th Amendment, which enables a two thirds vote of both houses to remove the president and replace him with the vice-president without impeachment. It is such a complex and fraught process, it is almost certain to fail. And it was never meant to replace impeachment. It was meant to keep the country going if a president became disabled and unable to continue.

This is, of course, all about Trump. He has nearly half the country believing he should be impeached. The list of reasons is endless, and the authors do their best to enumerate them. And he seems to add to them every day. Ironically, the risk is that if his loutish and outlandish behavior continues, Americans will get used to it and they won’t constitute impeachable offenses any more. In lowering American standards of governance, Trump is raising the barriers to impeachment.

The one point missing in Tribe and Matz’s analysis is the insurance policy carried by the president. The vice-president would take over in the case of impeachment. Not as acting president, but as President. The thought of Mike Pence (known behind his back as Mike Dense when he was a congressman) running the country is by itself probably enough to prevent a Trump impeachment.

But then, that’s what Nixon thought when Spiro Agnew was his vice president, and again when Gerald Ford became next in line after Agnew was forced out for blatant corruption. It didn’t quite work out as planned. It never does.

David Wineberg show less

I have known of Lawrence Tribe for a long while but only started following him on Twitter for about six months. His voice of reason, on Twitter of all places, a venue not known for reasoned thought, impressed me enough to preorder his book “To end a presidency : the power of impeachment” . Like his posts on Twitter the book is thoughtful and informative. It is also less partisan than I expected. Even a Trump supporter can read this book without suffering a sudden case of the vapors.

I show more was not expecting an in depth look at the history of the development and use of impeachment but is there a better way to understand the concept and its implications? I expected a passionate plea to remove Trump, instead Tribe and his co-author Joshua Matz examine the Framers “intent” the only way possible, by looking at what they wrote and the revisions they made while crafting the Constitution.

The Constitution says that all high civil officers of the United States can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors”. That starts off very explicitly but as Tribe points out “other high Crimes and Misdemeanors” can cover almost anything. We have never removed a president through impeachment. That could be because the degree of cooperation required is beyond the ability of our legislative branch. It could also be that the members of the legislature understand that removing a president before their term expires could inspire violence from that administration’s supporters.

Tribe repeats that idea throughout the book. A president’s supporters might resort to violence if they feel that politics if the only reason for the impeachment. Which is why Mueller's investigation is so important. Unless the voters understand that there was/is serious wrongdoing we could end up with more violence than in 1968 or 1876. That is also why Trump keeps yelling “FAKE NEWS”, he is trying to assure that his supporters will not believe any incriminating evidence against him.

I doubt that this book would have been written without Trump in the White House but it is definitely not aimed at him. I was less fond of the idea of his impeachment after reading it. The book is a through look at the legal and political history of Article II Section 4 of the Constitution. Whatever your opinion of this President this book is worth your time. show less

Uncertain Justice: The Roberts Court and the Constitution
By Laurence Tribe and Joshua Matz
Picador
Reviewed by Karl Wolff

The Supreme Court of the United States is the least understood branch of the government. Like the Federal Reserve, it is an elusive institution the general public either knows nothing about or knows only what could charitably be described as misinformation. If people knew more about how the Supreme Court works (and the Federal Reserve, for that matter), it would be less show more likely to pop up in conspiracy theories or partisan bloviations.

Uncertain Justice: The Roberts Court and the Constitution, by Laurence Tribe and Joshua Matz helps illuminate the inner workings of the Court. Tribe and Matz also give succinct portraits of all nine justices, their histories, personalities, and individual interpretation of how justice works. Tribe, a constitutional law professor at Harvard, and Matz, a Harvard Law School graduate and SCOTUSblog writer, team up to offer a sober assessment of the Roberts Court and its major rulings. (It should be noted that Uncertain Justice came out in July 2014. Certain cases, including Sibelius, popularly known as "The Hobby Lobby case" had yet to be decided. This does nothing to detract from the material in the book though.)* The great thing about this book is one doesn't have to be a legal scholar, attorney, or political junkie to appreciate it. The law effects all of us.

Laurence Tribe's students included Barack Obama, John Roberts, Elena Kagan. This adds a fascinating relevancy to the book. Tribe has also argued in front of the Supreme Court, avoiding the caricature of a professor sequestered in the Ivory Tower, isolated from society-at-large. As a Harvard Law Professor, Tribe offers the reader not only the historical background of major cases, but the specific legal, ideological, and cultural baggage each case carries. All the greatest hits are here: gun control, abortion, free speech, healthcare, privacy, and presidential power.

Uncertain Justice is an early assessment of the Roberts Court. Chief Justice John Roberts is the 17th Chief Justice of the United States, nominated by President George W. Bush in 2005. He took over as Chief Justice after the death of Chief Justice William Rehnquist. Like Rehnquist, Roberts is a conservative jurist. While the general public's attitude towards the law has moved slowly to the left, the Supreme Court remains a conservative bulwark.

President Obama has nominated two justices to the Court, but Republican presidents have had the opportunity to nominate four Chief Justices (Earl Warren, Warren Burger, William Rehnquist, and John Roberts). I bring this up not to provoke partisan squabbling, but for readers to take the long view. Despite the imperious title, the Chief Justice is more of an administrative role in the Court. He - until history proves otherwise - assigns cases to specific justices. Although the Chief Justice lacks the authority to write decisions, unless he assigns the case to himself, it is his name in the history books. The Warren Court is now known as a time of liberal change and increased rights. The Taney Court (of Dred Scott v. Stanford) is remembered as the most detested in United States history. Ten years in, where does the Roberts Court stack up?

While characterized as a liberal law professor, Tribe doesn't let his personal ideology overshadow the proceedings. One of the wonderful things about reading Uncertain Justice was how Tribe and Matz articulated arguments from both sides. In some cases it was a challenge to bring myself to make a judgment call. Not because of personal ambivalence, but because each side presented valid arguments. And unlike trial law, an arena of emotions and lurid details, when one argues in front of the Supreme Court, one is intellectually parsing language and wrestling with abstract concepts. Then one applies these to the case at hand. The stakes are huge and the consequences are either revolutionary or devastating, depending what side you are on. Luckily law operates in a more complex yet simple fashion than basic partisan divisiveness. Upon reaching this plateau of jurisprudence, at least ideally, one hopes it doesn't get reduced to "the Republican side" versus "the Democratic side." The questions argued before the Court shouldn't boil down to knee-jerk party tribalism. Leave that for the campaign trail.

In the book, Tribe and Matz discuss a test used by elite law firms: "if you had to eliminate half of the amendments in the Constitution, would you eliminate the odd- or even-numbered rights?" A knee-jerk response would include saying odd, because of the First Amendment, or even, because of the Second Amendment. The authors go on to explain how this is actually a trick question, but use it as a thought experiment. While each amendment is important, the Constitution, Bill of Rights, and additional amendments is a living "machine" with interrelated parts. Amendments are dependent on each other and cannot function alone. While freedom of expression is very important, so is equal protection. But how they interrelate becomes dependent on the individual justice's interpretation of the Constitution itself as it applies to the case at hand.

Tribe and Matz examine each case through two perspectives. The first is the narrative. The story of the individual and their claim. The second perspective is case genealogy. Supreme Court cases, like constitutional amendments, are interrelated. Brown v. Board can be traced back to Plessy v. Ferguson and Dred Scott v. Sanford. Though not immediately apparent, Brown also has roots in Korematsu v. United States, a case involving the wartime internment of Japanese-Americans. The Court upheld the racial segregation of Korematsu in 1944 on the grounds of "national security." Since racial segregation of "separate but equal" had no national security component, it weakened the justifications for the practice. When it comes to matters of free expression, privacy, gun control, and abortion, a working knowledge of case genealogy is very important. Both to understand what is being argued and to observe the trends occurring in American jurisprudence. In the case of abortion, the Right has abandoned the fight for the wholesale repeal of Roe v. Wade. Instead the fight has evolved into creating legislation that limits access.

Nine people make up the Supreme Court, but unlike the other branches, the arguments are ideological not partisan, a crucial distinction. The Court is very small and its important decisions are not televised. In today's hyper-mediated, image-saturated culture, one would think this means they are secretive. Tribe argues to the contrary, noting that there are no cameras because of what the justices write, not what they say. While some justices have been notorious for their public appearances (Justice Scalia most notably), during their session on the Court, they keep away from the public eye. It would be devastating to the process of American democracy if we had Supreme Court justices show-boating to the camera. Some cases involve incredibly pivotal decision-making. This would be ruined if they had to act like a lowly member of Congress or the President.

The "balance of powers" works because each branch has different strengths and weaknesses. The Supreme Court, unlike the President and Congress, is notable as a deliberative body and issuing decisions based on interpretation. Ideally, Congress and the President represent the nation's popular opinion, the Supreme Court should not. The challenge becomes issuing decisions whose time have come, but not making rash decisions based on the whims of public opinion. In the end, Supreme Court is about rendering a judgment, making a decision that will effect everyone.

Right now the Court is challenged by "political gridlock, cultural change, and technological progress." Just as the Federal Reserve is the lender of last resort, the Supreme Court is final arbiter of justice. The Roberts Court continues the conservative interpretation of jurisprudence, but making that interpretation effective relies on a majority of justices. Unfortunately the present Court, like our other branches, is divided. Supreme Court reporting has devolved into answering one question, "What will Justice Anthony Kennedy say?" Kennedy has become the reliable centrist between the Court's conservative and liberal wings. Hence the abundance of 5-4 rulings.

What has typified this Court is its disdain for "judicial overreach" and its preference for "legislative redress." If the Court has ruled against you, talk to your Senator or Representative about drafting a law to counter it. (Cue hysterical outbreak of words like inequality, oligarchy, and Citizens United references.) This is a cautious Court, one that doesn't seek to create new sweeping new law. It is the antithesis of the Warren Court. With that in mind, there are other ways to seek redress besides the Supreme Court. Protests, boycotts, awareness campaigns, lobbying, and elections are all means to an end. The end being: a law that changes things. Whether that law is constitutional? Well ...

Why am I including a Supreme Court book on a literary website? Because judicial decisions are like book reviews, judgment is rendered through interpretation and this can be controversial and divisive. Unlike book reviews, Supreme Court decisions should not be about "personal taste." Deeming a statute constitutional or not depends on the interpretive framework of the nine justices. Things get more tricky when ideology enters the fray.

For those interested in the Supreme Court (its history, personalities, major decisions, etc.) I would highly recommend Jeffrey Toobin's The Nine: Inside the Secret World of the Supreme Court, Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices by Noah Feldman, and The Brethren: Inside the Supreme Court by Bob Woodward and Scott Armstrong.

*While Uncertain Justice could easily fall into the category of Current Affairs, it possesses the academic rigor and easy readability that pushes it above the Current Affairs category. Current Affairs is a motley mongrel category, embracing everything from cogent analyses of topical subject matter to the latest ghostwritten swill written by a morning political talk show host. Current Affairs usually means Immediately Obsolete. In the case of Uncertain Justice, it is legal commentary aimed for a popular, non-specialist audience.

http://www.cclapcenter.com/2015/06/book_review_uncertain_justice_.html show less

Laurence Tribe is a Yale Law School professor and constitutional scholar. His book does an exemplary job of discussing the history of abortion in the U.S., from a legal perspective, in an impartial manner. He shows holes in logic in both sides, and victories and defeats on both sides. His premise is that it is a clash of absolutes: neither side can have their way absolutely; there must be compromise on both sides.

I was enthralled by this book. It was so clearly written, with so many cogent show more points, that I have note after note of notes of things I wanted to remember. I will need to break one of my cardinal rules, and annotate this book liberally. I am certainly keeping my copy, and will buy many for others to read.

I will better be able to debate my pro-choice views, after reading this. It also caused me to consider what areas as a society are a "clash in absolutes". This book has changed me and my outlook.

I will be unable to post all the "quotes" I appreciated here, as many of them are multiple pages in length. I will, however, copy some which particularly struck me.

What I found most powerful, was his discussion of people who are generally pro-life, but allow abortion in cases of rape and incest. He discusses how this is an argument based on how the woman got pregnant, not about the life of the fetus. The fetus is clearly innocent here, yet abortion is allowed. He quite clearly shows that people who argue along this path, are making moralistic judgments about women and how they should prevent pregnancy. I will use that argument in the future.

I also found the chapter on the history of abortion around the world, to be fascinating. In some cases, I didn't like the pro-choice argument, because of how it was framed, even if I agreed with the outcome. That was new to me.

"Women who are able to control their reproductive destinies gain freedom to pursue personal missions other than the traditional one in the home."

He discusses how the pro-life movement uses photographs of aborted fetuses to gain proponenets. "We would do well to remember and to try to envision the disfigurement, destruction, and death wrought by the butchery of women killed in [back alley abortions] .. That such photographs are rarely seen must not be permitted to obscure the genuine tragedies they reflect."

"Laws restricting abortion so dramatically shape the lives of women, and only women, that their denial of equality hardly needs detailed elaboration. While men retain the right to sexual and reproductive autonomy, restrictions on abortion deny that autonomy to women. Laws restricting access to abortion therefore place a real and substantial burden on women's ability to participate in society as equals. Even a woman who is not pregnant is inevitably affected by her knowledge of the power relationships created by a ban on abortion."

Discussing the post Roe v. Wade republican party platform, "The National Catholic Reporter was even harsher in its headline describing the 1976 Republican platform: Conservative GOP Convention defends rights selectively: Fetuses have them, Hungry don't."

Discussing Bush Senior, and whether there should be federal funded abortions for rape/incest: "Bush supported rape and incest exceptions to strict antiabortion laws; he merely opposed giving this abortion option to poor women who needed public help. While he suggested that this was because there was no way to verify that a rape had occurred, he never spelled out whether he thought the problem of lying about rape was more common among poor women, whether he believed no women could be trusted to tell the truth about such a serious and traumatic event, or what."

"In a representative democracy, the word "always" belongs to the people; those elites that prevail in the courts, sometimes feeling an unwarranted contempt for the less well educated groups they have outflanked, can only lose in the long run if they take the justice of their cause for granted and discount the significance of views they think less enlightened than their own."

"Women who make the choice to end a pregnancy ordinarily recognize the gravity of what they are doing. Compromises that pretend otherwise, that treat each woman as a stranger to her fetus and pit the two against each other, are lacking in human understanding and are not plausible moves toward a world in which people reach out to each other."

"If advocates on both sides of the abortion debate would just pause, they would recognize at least one broadly shared interest, that of working toward a world of only wanted pregnancies. Better education, the provision of contraception, indeed the creation of a society in which the burden of raising a child is lighter, are all achievable goals that are lost in the shouting about abortion. ... Nearly all of us already agree we should strive for a society in which every child a woman conceives is wanted and in which every child born has someone to love and nurture it." show less