Former Solicitor General and federal judge Kenneth Starr made a simple argument this week on behalf of President Donald Trump’s impeachment defense. We are living in the “age of impeachment,” he said on Monday, urging the Senate to acquit Trump and “return to norms” that counsel against using impeachment as a political weapon.
If Trump is removed from office, Starr was suggesting, every future president will be vulnerable, at least if the House of Representatives is controlled by the opposing political party, and if the Senate can be persuaded to go along. A president named Joe Biden or Bernie Sanders or Elizabeth Warren might well be exposed to a horrific impeachment battle, simply because of the Trump precedent.
True, it’s bizarre to see this argument coming from Starr, whose 1998 report on President Bill Clinton’s liaisons with his White House aide Monica Lewinsky made its own contribution to altering impeachment “norms.” Nonetheless, his argument is a reasonable. It deserves an answer.
If you think that Starr is wrong, you might consider an earlier episode in American history, when Republican warnings to the same effect were equally self-serving —and mostly turned out to be right.
The year was 1987. President Ronald Reagan nominated Judge Robert Bork to serve on the U.S. Supreme Court. No one could doubt Bork’s experience or competence. He had had an illustrious career.
Bork’s opponents instead focused on what really concerned them, which were his likely votes. They argued that he was an extremist, “out of the mainstream.” In a defining speech, Senator Ted Kennedy put it this way:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizen’s doors on midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the door of the Federal courts would be shut on the fingers of millions of citizens.
The attack on Bork eventually gave rise to a verb, “to Bork,” defined by Merriam-Webster as, “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.”
At the time, Republicans made two general arguments against those who were seeking (successfully, as it turned out) to block Bork’s nomination.
First, they said that if judicial nominees could be defeated because of their likely votes, the confirmation process would become far more politicized. Senators would feel emboldened to stop nominees for just one reason: They disagreed with them.
Second, they argued that public vilification of judicial nominees would become common, and that constraints of civility and charity might be obliterated. They suggested that in that light, some people would refuse to be nominated; that the president would tend to select people without much of a written record; and that the confirmation process would get ugly.
You could make a good argument that they were right.
As a case in point, consider Senate Majority Leader Mitch McConnell’s disgraceful refusal to allow a confirmation hearing for Judge Merrick Garland, nominated to the Supreme Court by President Barack Obama in 2016. McConnell’s refusal is the culmination of a process of politicization that did not by any means start with Bork’s defeat, but that was certainly aggravated by it.
Moreover, some opponents of Supreme Court nominees —whether Republicans or Democrats —have been willing and eager to attack them in ways that are grossly unfair and sometimes vicious.
In this light, it isn’t crazy to worry that in the current polarized political environment, presidential impeachment will be transformed into a political weapon —and that Trump’s impeachment and trial will create impeachment-happy future Republicans, seeking to unseat Democratic presidents.
A less-than-ideal response to that worry would be to hope that the precedent would be set instead by the preposterous argument proffered by Starr and the retired criminal law professor Alan Dershowitz: that presidential wrongdoing is not impeachable unless it is also a statutory crime or other violation of law.
That argument is a grotesque betrayal of the Constitution, because the key phrase of the impeachment clause (“other high Crimes and Misdemeanors”) was clearly understood to include egregious abuses of power, such as violations of civil liberties and misuse of the pardon power.
A much better response is to insist that policy disagreements are never a legitimate basis for impeachment, to agree that the Constitution sets a very high bar, and to focus intently and specifically on the two articles now before the U.S. Senate, alleging gross abuse of power and obstruction of justice.
Whether you’re a Republican or a Democrat, it’s reasonable to fear a United States of Impeachment.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”