Members Only | January 14, 2020 | Reading Time: 4 minutes

Don’t Ask the Supreme Court to Interfere with Donald Trump’s Impeachment Trial

Nancy Pelosi is showing us a better way.

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I argued yesterday Nancy Pelosi has more leverage over the form and integrity of the Senate impeachment trial than most people think. I argued Mitch McConnell has less. One of these people must bear the onerous weight of a lying, thieving, philandering sadist making of fetish of exoneration, and that person is not the speaker of the House.

More importantly, the drip-drip-drip of bad news for Donald Trump is affecting GOP senators facing reelection this year. There are more Senate Republicans running for reelection in this cycle than there were Senate Democrats in 2018. The difference is the Democrats aren’t yoked to the weakest, most unpopular president of our lifetimes. The weakest, most unpopular president of our lifetime has now been impeached.

The last thing we should want is for the high court to settle a fight that can only be settled by conflict.

It would seem I was wrong. Pelosi announced last week she intended to ask Jerry Nadler, chairman of the House Judiciary Committee, to draw up a resolution for sending articles of impeachment to the upper chamber. (The full House will vote on that resolution Wednesday.) That would seem to be capitulation, as if Pelosi were caving. But that was before CBS News reported, and others have since confirmed, Pelosi’s gambit worked out pretty much as intended, forcing the GOP’s hand.

Yamiche Alcindor, of PBS Newshour, wrote: “Confirmed: A source tells me White House officials increasingly believe that at least four Republicans, and likely more, will vote to call witnesses at the Senate impeachment trial including Senators Lisa Murkowski, Susan Collins, Mitt Romney and possibly Cory Gardner” (my italics).

The veteran White House reporter added: “As first reported by CBS News, a source tells me the White House views Senator Rand Paul of Kentucky as a “wild card” and Senator Lamar Alexander of Tennessee as an ‘institutionalist’ who might vote to call witnesses. That shows Trump is increasingly aware that the trial could be damaging.”

If public opinion is pressuring vulnerable Republican Senators to call for witnesses, McConnell will allow it. There’s very little the Senate majority leader cares about more than keeping his Senate conference in the majority. To be sure, he cares about holding the White House. But Trump isn’t worth the cost of a complete wipe-out in November.

It remains to be seen whether Romney and others actually vote for witnesses, and even if they do, it remains to be seen which witnesses are called. Hugh Hewitt and Byron York, influential “conservative” pundits, are urging the Republicans to demand testimony from the anonymous whistle-blower. Others are demanding testimony from Hunter Biden and even his formerly vice presidential dad. Getting the Senate to call witnesses isn’t the same as fair. Even so, things seem to be going where they should.

Things are going where they should for another reason. The fight has been so far only between the chambers of the US Congress and between the political parties. Neither Democrats nor Republicans have called on the judicial branch to interfere. That’s as it should be. The Constitution gives the judiciary no meaningful role. It has a bit part. The US Supreme Court’s chief justice presides over a Senate trial as a judge would preside over a court of law. But even that role is perfunctory. John Roberts won’t even be calling balls and strikes. He won’t be making any meaningful judgments at all.

To call on the court to settle a constitutional crisis is an exercise in authoritarianism.

That the Constitution gives no role to the judiciary doesn’t prevent people from arguing in good faith it should have one. We have recently seen a spate of articles, in the run-up to the Senate trial, saying John Roberts could compel witnesses if he wished to or the Supreme Court could legally review Trump’s conviction if that were to happen. Like I said, all of these arguments seem in good faith. All of them are bad.

The last thing we should want is for the high court to settle a fight that can only be settled by partisan conflict in the US Congress. The last thing we should do is cede the sovereignty of the people to nine unelected jurists. The last thing we should do is repeat what we have been doing: turning the high court into a jurisprudential fetish.

It may seem politically neutral to call on the court to settle constitutional crises like the one we are now experiencing, but in effect, it’s the opposite. It’s incredibly political, and not the kind of “political” any democratic republic should want. To call on the court to settle a constitutional crisis is an exercise in authoritarianism. It’s empowering people whose small number—nine—should never command that kind of power.

Again, so far neither party has asked for the court’s interference, and hopefully they never will. Politics is about conflict. Politics in a republican democracy is about persuasion. Pelosi, by delaying articles of impeachment, appears to be persuading otherwise recalcitrant Republicans to reconsider the wisdom of a fair and impartial trial. That’s what we should want. Especially, that’s what liberals should want.

—John Stoehr

John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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