By sheer coincidence, while I was writing about real and imagined racists, my friend Joan Swirsky was writing about real and imagined victims. Her essay is well worth reading.
Recently, while considering the use and abuse of the word "racism," I was reminded of an episode that occurred while teaching constitutional law at Brooklyn Law School. For over 20 years I eviscerated the Supreme Court Heart of Atlanta
cases, tying most of my students who agreed with the Court in logical knots and exposing the result-oriented, dishonest, and indefensible majority opinion. Not surprisingly, some of those students felt themselves aggrieved. Paraphrasing today's vernacular, they considered my deconstruction of the majority opinion worse than a mere "micro-aggression"! As I recall, they considered it no what today would be called a "macro-aggression"-- and worse, in a "safe space" no less, the hallowed halls of academe. (In those days, there was no First Amendment roped-off area across the street).
One semester, soon after a two-hour class devoted to the cases, I received an invitation to visit the Dean. After the requisite small-talk, the following colloquy occurred:Dean
: I've had a group of your con law students in here complaining that you're a racist.
I stared at him, dead silent.
At least fifteen seconds passed.Dean
: Well what?Dean
: Well, what about what they said?
: Well, don't you have anything to say?Holzer
: If someone called me a racist, I'd sure want to deny it.Holzer
: No doubt.
More silence, longer this time.Dean
: So you're not going to deny it?Holzer
: Deny it? I'm not even going to acknowledge it.Dean
: Well, I guess that's it.
I stood up and left.
He never mentioned the subject again.
For those with the stamina to read my excoriation of the Heart of Atlanta
cases, please see
Although as of today
it looks more and more that Moore will stay in the race, it looks also like he'll lose the election.
But what if he wins?
As I wrote yesterday, under Powell
he must be seated.
However, although the question of seating and subsequent expulsion was not before the court in Powell
, Chief Justice Warren's opinion implies that pursuant to the Senate's constitutional power to make its own rules for running that body (think filibuster) he could be expelled. A very thin distinction, seating versus expulsion, indeed.
However, there may be another problem.
Moore's acts, if he actually committed them, occurred before
he was elected.
So the constitutional question arises: Can an elected and seated United States Senator (and Member of the House of Representatives) be expelled for conduct occurring before he became a senator?
Some TV talking-heads will point to the disgraceful and disgraced current representative for Florida's 20th congressional district, the Dishonorable Alcee Lamar Hastings, one of only a handful of federal judges impeached, convicted and removed from office. He was a judge on the United States District Court for the Southern District of Florida for a decade, from 1979 to 1989. In 1988 he was impeached by the House, and in 1989 convicted on 8 of the 17 bribery and perjury articles of impeachment.In 1993, he was elected to Congress.
Note the timing: Criminal acts, followed by election and seating. But no expulsion (which doesn't say much for the then-House of Representatives).
The Moore case is different, which may be what he is counting on.
If he is elected and seated, what will the politics be?
The Democrats would want Moore in the Senate, as the poster-boy for pederasts. Leaving him there to twist in the wind, instead of helping expel him, will not change the Senate balance because on Moore's demise Alabama's governor will appoint another Republican to fill the vacant seat.
In that scenario, the Democrats would oppose Moore's expulsion, suddenly remembering the presumption of innocence and/or arguing that his transgressions, like Hastings's, occurred before he tainted the Senate by his pederast presence.
Where would that leave the Republicans?Article I, Section 5, of the United States Constitution provides that "Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." (My italics.)
The majority leader would have to cobble together enough votes to expel Moore, not an easy task because of the two-thirds constitutional requirement, the "Hastings precedent," and perhaps the reluctance of some Senators to expel a duly elected colleague who has not transgressed while a member of that august body.
As Margo Channing said in All About Eve
, "Fasten your seat belts. It's going to be a bumpy night."
The Washington Post, is reporting that the President of the United States and a growing chorus of Republican senators led by their leader McConnell are clamoring for besieged Alabama senatorial candidate Roy Moore to step down from his race—but, of course, only “if the allegations are true.”
A growing chorus of Republicans, including President Trump and Senate Majority Leader Mitch McConnell (R-Ky.), have called on Senate candidate Roy Moore to withdraw from a special election in Alabama if allegations prove true that the former judge initiated a sexual encounter with a 14-year-old girl nearly four decades ago.
White House press secretary Sarah Huckabee Sanders, who was accompanying Trump as he traveled from China to Vietnam on Friday, said, “Like most Americans, the president does not believe we can allow a mere allegation, in this case one from many years ago, to destroy a person’s life. However, the president also believes that if these allegations are true, Judge Moore will do the right thing and step aside.”
McConnell, in a formal statement on behalf of all Republican senators, said, “If these allegations are true, he must step aside.”
This is another example of what I call the “Obamacare pose,” where for years Republicans voted to repeal America’s socialized medicine scam knowing that Obama would smilingly veto their charade.
“If the allegations [against candidate Moore] are true,” the growing list of senators say sanctimoniously. (My italics.)
Who do these politicians think they’re fooling?
They, and probably most of the country by now, know that what’s “true” about this “he said, she said” imbroglio will never be known. They’re once again hedging their bets, not taking a stand, having their cake and eating it too, covering their ba[s]ses, playing it safe, —well, you get the idea. More succinctly: Acting like the cowardly politicians they are.
But not Mr. Morality, the John McCain of the aircraft carrier “accident,” marital duplicity, and Kerry-abetting whitewash of what happened to America’s Vietnam War MIAs.
Sen. John McCain (R-Ariz.) called on Moore to step aside as well — and without couching his statement with “if true” language.
This, of course is what we expect from politicians generally, and from McCain in particular. And while the presumption of innocence is a legal principle, not a political one, it should be a moral tenet—one that tracks the formulation of the Alabama Court of Criminal Appeals in the 1978 case of Thomas
While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. A defendant should not be convicted on mere suspicion or out of fear that he might have committed the crime. While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence. (Case citations omitted; my italics.)
That’s not too high a standard to expect from United States Senators like John McCain who have politically reversed the foundational legal and moral principle of presumption of innocence—whether or not in the Alabama of forty years ago, today's candidate Roy Moore did what he is now accused of having done.
In the last few days there has been considerable erroneous discussion about whether the United States Senate — so many of whose members have unclean hands when it comes to making moral judgments — could refuse to seat the Alabama Republican candidate for that august body if he wins the election.
Those who claim Moore could be denied his seat are wrong.
The Constitution has only three requirements for a United States Senator: Being at least 30 years of age, a citizen of the United States for at least nine years, and a resident of the state from which he or she is elected.
Those who think otherwise because the Senate can make its own rules (like the filibuster) and judge the qualification of its members, should read the Supreme Court opinion in the 1969 case of Powell v. McCormack (395 U.S. 486), where Chief Justice Earl Warren wrote for an 8-1 Court that:
Further, analysis of the ‘textual commitment’ under Art. I, s 5 (see Part VI, B (1)), has demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership. (My italics.)
Just as Powell was at least 30 years of age, a citizen of the United States for at least nine years, and a resident of the state (New York) from which he was elected, so, too, Roy Moore would satisfy the three constitutional requirements. He would have to be seated—despite the as yet unproved allegations of sexual misconduct.