Redefining “Presidential,” And Reconsidering Overreaction

In some way, Donald Trump is like the weather:  you’d like to ignore him, but you just can’t.  He’s like that blustering, loud summer thunderstorm that blows in on the day you’ve scheduled an outdoor party and requires everybody to change their plans whether they want to or not.

It’s pretty obvious, after only a few days in office, that the era of Trump is going to change how we look at our presidents, and what we consider to be “presidential” behavior.  In recent decades, we’ve become used to our presidents maintaining a certain public decorum and discretion.  Sure, there have been a few exceptions in the sexual dalliance department, but for the most part our modern presidents have tried to take the personal high road.  They leave the attacks to their minions and strive to stay above the fray.

Imacon Color ScannerNot President Trump.  He’s down there himself, throwing punches via Twitter.  His most recent activities in this regard involve lashing out at the federal district court judge that issued a temporary restraining order against Trump’s immigration executive order.  Trump referred to Judge James Robart as a “so-called judge” and said his ruling was ridiculous.  Senate Minority Leader Chuck Schumer immediately attacked Trump, saying his comment “shows a disdain for an independent judiciary that doesn’t always bend to his wishes and a continued lack of respect for the Constitution.”

I’ve got mixed feelings about all of this.  I personally prefer the more genteel, above-the-fray presidential model; I think it’s more fitting for a great nation that seeks to inspire others and lead by example.  I wish our President wouldn’t “tweet.”  But I also recognize that American presidents haven’t always been that way.  The behavior of presidents of the 1800s — think Andrew Jackson, for example — was a lot more bare-knuckled than what has come since.

I also think there’s danger for the Democrats in repeatedly overreacting to Trump.  If you argue that everything Trump does is the most outrageous travesty in the history of the republic (and that’s pretty much what you get from the Democrats these days) you ultimately are going to be viewed as the boy who cried wolf — which means the townspeople aren’t going to pay attention when you really want them to listen.  And in this case the reality is that, since the very early days of our country, elected politicians have been strongly criticizing judges.  Andrew Jackson famously declined to enforce a Supreme Court ruling, and Abraham Lincoln harshly lambasted the Supreme Court, and its Chief Justice, after the Dred Scott decision.  More recently, the rulings of the Warren Court became a political lightning rod during the ’60s, and President Obama saw fit to directly criticize the current Supreme Court, sitting right in front of him during a State of the Union speech, about their Citizens United ruling.

So Trump’s reference to a “so-called judge” really isn’t that big a deal when viewed in the historical context.  What’s weird about it is that it comes out in tweets — which makes it seem less presidential and, because it’s a tweet, less serious.  When Trump has these little outbursts I think if the Democrats simply shook their heads and said that what Trump is doing is “regrettable,” without acting like his every move threatens to bring down the Constitution, Trump’s Twitter act will wear thin on its own.

But they can’t help themselves right now, and neither can Trump.  So we’re going to have to ride out a few of those thunderstorms.

Looking To Fill The “Stolen Seat”

Last night President Trump nominated Neil Gorsuch, a judge on the federal 10th Circuit Court of Appeals, to fill the vacant seat on the United States Supreme Court.  His formal nomination triggers the start of what will undoubtedly be a bruising confirmation process, with some Democrats already promising to do everything they can to prevent seating Gorsuch on the high court.

US-POLITICS-COURT-NOMINATIONThere are three reasons for this.  First, the Supreme Court has assumed an increasingly important role in the American political process over the last 70 years, with people at all points on the political spectrum looking for the judiciary to recognize a new right, provide a remedy, issue an injunction, or overturn a statute or executive action.  The Supreme Court is the head of the judicial branch, and every year, the Court accepts and decides cases that require it to tackle difficult issues — some constitutional, some statutory, some procedural — that can have broad ramifications for people, businesses, the legal system, and how government works.

Second, as the importance of the Supreme Court has increased, the process for nominating, reviewing, and approving potential Supreme Court justices has changed.  Republicans blame Democrats for the growing politicization of the Supreme Court confirmation process, and Democrats blame Republicans, but no one doubts that we have moved into a new era of “extreme vetting.”  Nominees not only have their credentials, backgrounds, and prior opinions scrutinized for the tiniest kernel of a potential argument against nomination, but advocacy groups immediately declare sides and start their scorched-earth campaigns before the nomination speech is even completed.  Last night, only a few minutes after Gorsuch was nominated by President Trump, an anti-confirmation demonstration began on the Supreme Court steps, and opponents of the Gorsuch nomination appeared on the cable news shows, describing him in the darkest, most ominous terms imaginable.

And third, the atmosphere has become even more poisonous because the seat on the Supreme Court Gorsuch has been nominated to fill has been vacant for almost a full year, and the Republicans in the Senate refused to take any action on Merrick Garland, the jurist that President Obama nominated to fill that seat.  That’s why the New York Times, in an editorial today, calls the vacancy the “stolen seat” — reasoning that if the Senate had just acted properly last year, Garland would have been confirmed, and the balance of power on the Supreme Court would already be changed.  The Times editorial castigates the Senate Republicans for obstructionism and abuse of power in their treatment of the Garland nomination, but seems to also implicitly encourage — with a wink and a nod — Senate Democrats to respond to the Gorsuch nomination in kind.

So now we’ve got a Supreme Court nominee who has served on the federal appellate bench for 10 years, has all of the educational bona fides you would wish, and is classified by some as a “very conservative” judge.  I’m interested in seeing how the confirmation process plays out and what is brought out about Gorsuch’s background and judicial opinions — but that means the confirmation process has to actually start.  Here, too, as in other areas I’ve pointed out recently, Congress needs to do its job.  The Republicans need to shut up about the “nuclear option” that Harry Reid unwisely imposed, and the Democrats need to get over the Garland nomination inaction, and both sides need to acknowledge that the Supreme Court has nine seats that can only be filled if the Senate acts and start to address the Gorsuch nomination on its own merits.

One other thing:  as the current Supreme Court justices age, delay and inaction is not an option.  If we don’t get over this self-imposed roadblock to the proper functioning of our government, we might soon have another vacancy to fill, and another.  If the Republicans and Democrats don’t get over their political titting for tatting, we might end up with a gradually vanishing Supreme Court.

Chickens, Meet Roost

Hang on to your hats, folks!  Yesterday, the new Congress was sworn in, and amidst the first-day activities — which featured an ill-considered effort by House Republicans to change the powers of an ethics investigative unit, that was abruptly reversed in the face of criticism from the media, Democrats, and Donald Trump — we started to get a sense of what might be coming in the next few months, after the new President is sworn in, too.

roostingchickensTwo things seem pretty clear.  First, President-elect Trump and the Republicans in Congress are serious about taking aim at some parts of President Obama’s agenda.  Second, some of the methods used by the Democrats over the last eight years to implement that agenda are now ready to be used by Republicans to reverse course.

For example, President Obama has been very active in setting policy through executive orders, rather than by obtaining changes through the congressional process.  In fact, the President is continuing to issue executive orders and probably will continue to do so until the Trump Administration takes office.  Similarly, the Obama Administration has issued regulatory guidance that changes the prevailing approach in a number of areas.  But what can be achieved through executive orders also can be undone by executive orders, and the Trump Administration has indicated that it plans to do precisely that.

In short, because President Obama was unable to convince Congress to enact many of his policy initiatives, those initiatives are ready to be changed at the stroke of a pen.  President Obama recognizes this; in fact, he recently urged Trump to try to govern through legislation, rather than executive order, for this very reason.  Republicans said President Obama’s advice against overuse of executive orders was “ironic,” but in any case it is clear that many of his executive orders are going to be reversed when President Trump takes office.  We don’t know yet exactly how extensive the changes will be, but don’t be surprised if the coverage of Trump’s first day in office includes footage of him signing a series of executive orders to change Obama Administration policies.

You’ll also recall that, during the Obama Administration, the Democrats who controlled the Senate exercised the “nuclear option” and changed certain internal rules about how many votes were needed to overcome filibusters.  Now New York Senator Chuck Schumer, the new head of Senate Democrats, regrets that the Democrats took that action — because it will make it tougher for Democrats to oppose and block confirmation of Trump’s selections for positions in his Cabinet.

It’s all pretty predictable.  You can think about chickens coming home to roost, sauce for the goose and sauce for the gander, and what goes around coming around — but the reality is that, with the pendulum swings we’ve seen in voting for President and for the Congress, anything that isn’t enacted into law through the legislative process contemplated by the Constitution will be immediately subject to change when the power shifts again, and that every procedural maneuver used to further one side’s agenda will be hauled out and used anew when the other side takes over.

It’s not a good way to govern.

The Vanishing President

I can’t remember the last time I heard anyone mention President Obama’s name in daily conversation.  Sure, you see news stories about him from time to time, giving a commencement speech here, issuing some new executive order or federal guidance there, but for the most part he’s just faded from the national zeitgeist.

obama-walking-away-rose-garden2It’s not a phenomenon unique to President Obama, of course.  When Presidents reach the last year of their second term, they always seem diminished, less important, and less vital.  They’re yesterday’s news, and they typically suffer by comparison to the energetic folks out on the campaign trail, all of whom are angling to take the President’s job.  No surprise there, either — the President is working, attending boring meetings and otherwise doing what Presidents must do, whereas the candidates are out jetting from place to place, giving speeches before cheering crowds.

It’s got to be a weird feeling, to be the focus of news coverage and attention and then suddenly . . . not.  You wonder if it’s hard for Presidents to deal with, that sense that they have been marginalized even though they are still in office.  Sure, they still have all of the trappings of Commander-in-Chief status, but they know, and everyone knows, that the country is in the process of moving on.  It’s like a high school romance that dims as the year progresses, until both parties recognize that they’re just playing out the string until summer comes and the calendar mercifully brings an end to it.

The fading phenomenon is particularly interesting this year, because President Obama reportedly is itching to take on Donald Trump.  If true, that might present a tough decision for the Clinton campaign.  The President can still give a mean speech, I’m sure, but he’s identified with the past — and if you’re out talking about change, as presidential candidates always do, the outgoing President is the living, breathing embodiment of what people want to change.  Perhaps that’s why, in my lifetime, outgoing Presidents really don’t seem to have been all that involved, or effective, in campaigning for their party’s chosen successor.  Will this year be any different?

W’s Return

Yesterday former President George W. Bush returned, briefly, to the national stage.  He was campaigning for his brother, Jeb Bush, who is hanging on for dear life and hoping to make a good showing in the South Carolina Republican primary.

According to press reports, the former President gave a short speech that endorsed his brother and described some of the qualities, like integrity and judgment and character, that he believes are needed in a good President — implicitly drawing a contrast with the blustery bombast of Donald Trump, without mentioning Trump or any other Republican candidate by name.   “W” also recounted some memories from his former campaigns in South Carolina and added some of his trademark self-deprecating humor.

Presidential Candidate Jeb Bush Campaigns With Brother George W. BushIt was a bit jarring to see news reports of George W. Bush at the podium.  I hadn’t seen him for a while, and of course he looked older, and thinner.  Since he left office seven years ago, former President Bush has consciously avoided the public eye and maintained a pretty consistent non-partisan, apolitical tone.  His speech yesterday sounds like more of what we’ve come to expect from him in his post-presidential years.  He was there to support and help his brother, but he did it without attacking other candidates by name or, for that matter, mentioning President Obama or criticizing the Obama administration.

George W. Bush remains a figure to be mocked and reviled among some on the left side of the political spectrum; seven years later, he’s still blamed by many, inside the Obama administration and out, for virtually all of our current problems.  Now Donald Trump has joined in, by repeating the debunked conspiratorial theories that the Bush administration lied about weapons of mass destruction in Iraq to maneuver us into an unnecessary war and ignored clear intelligence that America would be attacked on 9/11.

Through it all, former President Bush has publicly remained above the fray, no doubt believing that, having served in the nation’s highest office, former Presidents shouldn’t engage in rancorous partisan politics or bash their successor on talk shows.  It’s an old school approach that speaks of personal humility and properly recognizes the dignity of the presidency.  His ego obviously doesn’t compel him to stay in the media spotlight.  Instead, he’s taken to painting, he’s written a book about his Dad, former President George H.W. Bush, and he’s focused on charitable and humanitarian efforts.

Yesterday, George W. Bush listed some of the qualities we want in our President.  I think the former President’s personal conduct since he left office illustrates those qualities — and draws a pretty sharp contrast with the vulgar, egotistical, limelight-loving loudmouth who currently is leading in the polls.

 

The Never-Ending Surge In Gun Sales

The American economy isn’t going gangbusters, but at least one area — gun sales — is an apparent exception to the overall economic malaise.

According to data released by the FBI, firearm background check requests, which are a kind of rough proxy for gun sales, keep setting records.  December, 2015 was the first month ever where more than 3 million background checks were performed, and for the year 2015 more than 23 million checks were performed.  Guns seem to be a popular holiday gift, because every year background checks spike during the holiday period — but this year the surge is continuing past the holidays.  The FBI reported doing more than 2.5 million background checks in January, 2016, which is the ninth month in a row that background checks have set a monthly record.

somervilleguns-thumb-520x292-81559It’s not clear why people are buying so many guns, but one theory is that gun owners fear that President Obama will take unilateral action to hurt their gun rights.  There’s statistical support for that notion, because President Obama’s years in office have been record-breaking for firearms entering the market according to statistics maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives.  Whereas 40 million new guns entered the markets during the 8-year presidencies of President Clinton and President George W. Bush, 68 million guns entered the market during the first five years of the Obama Administration.  The key test for whether the “Obama effect” is the real motivator of gun sales will come, of course, when the President leaves office in a few months and a new President moves into the Oval Office.

Who is buying the guns?  Surveys indicate that the number of households that own firearms is either flat or trending downward, and that the surge is coming from existing gun owners who are simply buying more guns.  According to those surveys, the average number of firearms in households owning guns increased from 4.1 guns in 1994 to 8.1 guns in 2013.  And, because that number is an average, that means there are a lot of American households that own more than eight guns.

In short, we live in a country where many of our neighbors have assembled large arsenals and seemingly are always ready to buy more guns.  I’d say our citizenry is ready for the Zombie Apocalypse or an attempted invasion by the Russkies, but it doesn’t exactly make me feel more safe walking around on an average day among a population where some people are armed to the teeth.

Guns, Doctors, Patients, And Medical Privacy

Yesterday the Obama Administration announced some new gun control measures.  Because President Obama issued executive orders, rather than proposing legislation to be debated and approved by Congress, most of the attention was on whether the President overstepped his authority and violated the intended constitutional balance of powers between the executive and legislative branches.

I’d like to focus on a different, substantive element of the changes announced yesterday:  namely, changes to a federal law protecting the privacy of certain health information to allow reporting of individuals who would fall within the mental health prohibitions of the federal gun background check law.  Politico reports that the new rule “enables health care providers to report the names of mentally ill patients to an FBI firearms background check system.”  Diagnostic information about the nature of the mental health condition being treated, however, would still be subject to privacy restrictions.

handgun_collectionThe announcement of the new rule by the Department of Health and Human Services uses the kind of dense, acronym-filled administrative jargon that makes ordinary people scratch their heads and throw up their hands, and it is not entirely clear the extent to which it applies to doctors — although the HHS announcement acknowledges that a number of comments it received about the rule expressed concerns about how the reporting issue would affect the “patient-provider treatment relationship and individuals’ willingness to seek needed mental health care.”

This is a difficult issue, because we’ve seen, over and over again, the carnage that can ensue when a mentally disturbed person builds an arsenal and then acts out their disturbed fantasies.  We want to keep those people from buying guns.  At the same time, however, notions of doctor-patient confidentiality are important — most states have laws or rules of evidence that protect such confidentiality — and exist precisely to encourage people to see a doctor and, in this example, seek treatment for their mental health issues.  New rules, even permissive ones, that could interfere with that confidentiality raise a legitimate concern, because if people who might otherwise seek treatment understand that by doing so they risk being disclosed to a federal database as mentally unfit, they may decline to seek treatment in the first place.  And if physician reporting of information that would disqualify a patient under the gun purchase laws is permissive, and a physician chooses not to report a patient who fits such criteria and the patient then acts on their fantasies, can the physician be sued for failing to report?  And, if the answer to that question is yes, won’t reporting become routine — and therefore the prospect of discouraging people from receiving treatment in the first place become even more likely?

No one wants to see mentally unbalanced people get their hands on guns, and we’ll have to see how these new rules play out, but this is a very sensitive area.  If the new regulations have the effect of discouraging people from seeking needed mental health treatment, they may unintentionally compound the problem.