8 It housed the Senate until 1860. Once the remodeling of the Capitol was nearing completion, it became the room where the Supreme Court met until 1935. The Old Senate Chamber is also where Senator Charles Sumner was brutally caned by an aggrieved member of the House in 1856. And it’s where senators gathered in 1999 to negotiate and approve, 100–0, the procedures that would govern President Clinton’s impeachment trial.
9 In my imagination, an exchange between Levin and Cruz on the issue of norms and procedures would track the famous exchange between Thomas More and his son-in-law, William Roper, in Robert Bolt’s A Man for All Seasons. Roper: So now you’d give the Devil benefit of law! More: Yes. What would you do? Cut a great road through the law to get after the Devil? Roper: I’d cut down every law in England to do that! More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then?
10 I have always believed that Reid, who had a strong sense of right and wrong, had simply had enough. The first photograph visitors to Harry Reid’s office would see was of a young African American boy, in the Oval Office, reaching out to touch President Obama’s hair as if to see whether it was like his own. In the end, I think Reid finally decided to change the rules because he believed the stonewalling of Obama’s nominees represented a particular kind of nullification, resembling the insistent and false claims that Obama was a Muslim or was not born in the United States.
11 By contrast, in the final two years of Bush’s presidency, a Democratic-controlled Senate confirmed sixty-eight judicial nominees. Fully twenty-five of Obama’s judicial nominations expired on the Senate floor after having been approved out of the Judiciary Committee with bipartisan support.
12 All twenty-three no votes were cast by Republicans. At the time, partisanship of this kind infuriated the Senate Judiciary Committee chair, Orrin Hatch, who lashed out at his colleagues, saying, “Playing politics with judges is unfair, and I am sick of it.”
13 Only two Republicans fully broke ranks and said the Senate should vote on Garland’s nomination: Mark Kirk, of Illinois, who was running for reelection in a Democrat-heavy state; and Susan Collins, of Maine, who had been a member of the 2005 Gang of Fourteen.
14 The updated list persuaded one Republican senator in particular to come off the fence. After nobly invoking principle and declining to endorse Trump at the summer’s Republican convention—he instead urged delegates to vote their conscience—Ted Cruz formally announced his support of Trump via a Facebook post. He listed six reasons, beginning: “First, and most important, the Supreme Court.” Cruz had apparently forgiven Trump for calling him “Lyin’ Ted” and for insinuating that Cruz’s father was involved in the assassination of John F. Kennedy.
15 Cruz’s statement echoed one by Senator McCain, who had suggested earlier in the month that Republicans would be “united against any nominee” put forward by a President Clinton. McCain later walked that back, but conservative commentators justified the notion: “As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally,” wrote the Cato Institute scholar Ilya Shapiro. Comments like these make you wonder whether we should just be done with it; let feral cats overrun the Capitol, Supreme Court, and White House, as they did the ruins of Rome; and sell maps to the tourists who might happen by.
16 In August 2018, Jason Zengerle reported in the New York Times: “The White House refers to every new batch of judicial appointees Trump selects as ‘waves’—in early June, it announced the ‘Fifteenth Wave of Judicial Nominees’—as if they’re soldiers landing on the beaches of Normandy.”
17 Jefferson mentions him, for instance, in a letter to John Adams in 1812, in which he announces that he is, in effect, going off the grid: “I have given up newspapers in exchange for Tacitus & Thucydides, for Newton & Euclid; & I find myself much the happier.”
18 When President Ronald Reagan nominated Antonin Scalia to the Supreme Court in 1986, the Senate understood his conservative judicial philosophy well. Nevertheless, it confirmed Scalia 98–0. That overwhelming vote reflected the Senate’s understanding of its constitutional duty to confirm qualified nominees even when senators disagreed with a nominee’s vision of the Constitution. Scalia himself recognized how modern politics had changed the confirmation process. In 2007, he observed, “I couldn’t get sixty votes today.”
19 The ABA has reviewed more than seventeen hundred federal judicial nominees since 1989. Before Grasz, it had only twice unanimously deemed judicial candidates unqualified, both of them nominees put forward by President George W. Bush. The nominations were withdrawn.
THE CORRUPTION OF INACTION
How “money politics,” empowered by the Supreme Court,
has sapped our ability to do anything at all—such as
meet the threat of climate change.
I. “That Good Old Global Warming”
On April 25, 2018, from a seat in a marbled chamber, I watched and listened as French president Emmanuel Macron addressed a joint session of Congress—the culmination of his three-day state visit to the United States. These events are usually polite affairs. Foreign leaders praise the values shared by “our two countries” and Congress stands to applaud from time to time in routine affirmation of mutual goodwill. Macron’s visit had gone well. To symbolize bilateral friendship, Macron and President Trump had together planted an oak tree imported from France on the South Lawn of the White House; few noted that the tree was soon dug up and placed in quarantine—standard practice for life-forms from overseas, apparently, and not some new anti-immigration policy.
Macron’s speech to Congress opened uneventfully, but as it developed the French president became more forceful and more frank about challenging issues. On the subject of climate change, for instance, Macron warned about the danger of carbon emissions and reminded the chamber that “there is no Planet B” for us to flee to. Democrats leaped from their seats to applaud this observation. From where I stood, on Planet A, I saw only one Republican senator, Susan Collins of Maine, standing to applaud. The other Republicans remained in their seats, stone-faced.
After the speech, Macron returned to Paris, where the United States in 2015 had helped lead the world toward a landmark accord—currently endorsed by 196 nations—to address climate change.1 Now, under its new president, the United States had become the only country in the world to commit to withdraw from the agreement. The US government was also the only one officially questioning whether climate change was even happening. In Europe, in countries such as Germany, France, and the United Kingdom, parties on the left and right fight ferociously over many issues—but not over whether the planet is warming. Rather, they sometimes fight over which party can claim more credit for trying to address the problem. In the United States, an entire political party has embraced climate-change denial as political orthodoxy. How did this happen?
It’s a question I began asking myself several years ago, when, for my sins, I was asked to chair the Democratic Senatorial Campaign Committee in advance of the 2014 midterm elections. The role of chair requires raising as much money as possible to win as many races as possible. It also requires understanding the dynamics of key races nationwide: the alchemy of candidates, conditions, and issues that decide elections—and, once the votes are counted, control of the Senate.
One lesson from that experience stands out above all others: not a single Democratic candidate for the Senate that year who was in a contested race faced a Republican opponent willing to argue unequivocally that climate change was real, that human activity was its chief cause, and that we needed to do something fast. Not in Louisiana, where salt water from a rising sea threatens to poison land all across the bayous. Not in North Carolina, where warming Atlantic
waters are strengthening hurricanes and seem poised to swallow the Outer Banks. Not in Alaska, where temperatures are rising faster than anywhere else in America. Not even in my home state, Colorado, where continued warming has increased the severity of drought, diminished the snowpack, and fanned dangerous wildfires.
That year in every one of these states, Republicans who rejected the scientific consensus about climate change beat Democratic incumbents. Also celebrating on election night was Mitch McConnell, of Kentucky, who not only cruised to his sixth term in the Senate but also realized a lifelong ambition to be its Republican majority leader. (As I write these words, I am still awaiting his thank-you call.)
A few weeks after the election, I was home in Denver convalescing from a two-year purgatory spent cold-calling and annoying potential donors. I continued to ponder the political carnage Democratic senators had suffered.2 My mind turned again to climate change.
Colorado’s electorate is one-third Democratic, one-third Republican, and one-third Independent. Poll after poll shows that by a sizable percentage, Coloradans believe climate change is real. They also believe that human beings contribute to it, even if there is disagreement about what we should do to address the problem. In Colorado, the evidence of climate change is all around us. We see it in the Rocky Mountain wildflowers tricked by unseasonable warm air into an early bloom. We see it in the infestation of pine and spruce beetles that have destroyed our drought-stricken trees, turning entire valleys of green forest into expanses of dull and brittle gray. We see it in our crowded lodges and resorts as Coloradans cram a winter’s worth of skiing into a shrinking season. We see it in the diminishing water used to grow our wheat, corn, and sorghum and to provide forage to our cattle.
Across the state, eight out of ten Coloradans are concerned enough about climate change that they support new policies to reduce carbon emissions, and nine out of ten support more investment in renewable energy. We have seen the promise of drawing energy from cleaner and more diverse sources. Compared with other states, Colorado ranks fourth in wind jobs; tenth in oil and gas jobs; and ninth in solar jobs. Our largest utility, Xcel Energy, has publicly committed to making a transition to 100 percent carbon-free electricity by 2050, while saving its customers money.3 By protecting our iconic landscapes, farms, and ranches, we enjoy thriving agricultural, tourist, and recreation economies. Renewable energy now drives $9 billion of economic activity annually; our other outdoor industries account for $28 billion. Coloradans perceive climate change as a real threat but are confident we can transition our economy in ways that will foster growth and create jobs. We share a responsibility to communities that have relied on coal for jobs—a responsibility to help them figure out how to manage these transitions in ways that benefit them. We know this commitment will not be easy to meet.
None of what I have reported is a universal view, but it is a widely shared view among Coloradans with a variety of political affiliations or no political affiliation at all. And it aligns with the universal view of scientists who have studied the question: human activity is warming our planet to an unsustainable level. In November 2018, a year when California suffered the deadliest and most destructive wildfires in the state’s history, thirteen US federal agencies and more than three hundred scientists, other experts, and officials produced a study that not only confirmed that climate change was real and that human activity was responsible for it but also concluded that as a result of climate change America’s economy could lose hundreds of billions of dollars annually by the end of the century. Some of the effects take their toll on our rural communities: climate change has already doubled the land burned by wildfires in the western United States and caused a severe reduction in stream flow in the Colorado River.
Republicans in Washington think very differently about all this. President Trump responded to his own government’s report, which the administration tried to bury, by saying, “I don’t believe it.”4 The gap between opinion on the right and established scientific fact is all the more baffling when we consider that not so long ago elected Republicans, including three Republican presidents, accepted climate science as correct, accepted climate change as a catastrophic threat, and accepted the responsibility of the US government to do something about it.
In the 1960s and ’70s, a series of shocking environmental disasters had made it impossible to look the other way. From my childhood, I remember the image of flames shooting up from Cleveland’s Cuyahoga River in 1969. I remember acid rain degrading the Appalachian soil and, in turn, devastating forest plant life and wildlife. Although I didn’t live in Denver at the time, I recall headlines about the “brown cloud” obscuring the city’s skyline and mountain views each winter as cool air from the Rocky Mountains trapped exhaust and other noxious gases at street level in a dingy haze. I also remember how scientists developed a powerful consensus that these were problems caused by human beings, demanding solutions created by human beings. In her 1962 book Silent Spring, Rachel Carson called on Americans to pay attention: “It is only within the moment of time represented by the twentieth century that one species—man—has acquired significant power to alter the nature of his world, and it is only within the past twenty-five years that this power has achieved such magnitude that it endangers the whole earth and its life.” In 1970, President Nixon, a Republican, created the Environmental Protection Agency. That same year he signed the Clean Air Act. Two years later he signed the amended Clean Water Act.
Two larger environmental dangers soon came into focus, both with profound implications for the entire planet. First, evidence mounted that human activity was depleting the ozone layer—an invisible gaseous blanket that shields us from the sun’s most harmful ultraviolet rays. It is essential for life on earth. Over the years, the ozone layer had been thinned by the release of chlorofluorocarbons, which were widely used in refrigerators, air conditioners, and aerosol spray cans. One looming consequence: potentially dramatic spikes in skin cancer down the road. The chemical industry did all it could to cast doubt on the science, but the reality became impossible to ignore when in 1985 a team of British scientists discovered an actual hole in the ozone layer above the Antarctic.
Ronald Reagan, that great foe of regulation, is the unlikely hero of this story. An avid outdoorsman and a survivor of skin cancer, Reagan overcame objections from industry and his own cabinet to champion the necessary protections, embodied in 1987 in the landmark Montreal Protocol, the first UN agreement to be signed by all 197 countries. Deterioration of the ozone layer has been halted and indeed reversed. By one estimate, the Montreal Protocol will prevent an estimated 280 million cases of skin cancer in America by the end of the century.
The second new danger identified during this period was climate change. For years, a growing number of scientists had warned that a concentration of greenhouse gases in the atmosphere was trapping the sun’s heat and warming the planet through what became known as the “greenhouse effect.” In 1988, as a particularly sultry June enveloped Washington, Colorado senator Tim Wirth scheduled a hearing on climate change. Dr. James Hansen, then the director of NASA’s Goddard Institute for Space Studies, testified that he was 99 percent confident that rising global temperatures were the result not of a natural variation but of a buildup of carbon dioxide in the atmosphere. Before Reagan left office, he supported the formation of the United Nations Intergovernmental Panel on Climate Change (IPCC), which was charged with reviewing available evidence and suggesting responses.
You might think that the election of President George H. W. Bush, an oilman from Texas, would have signaled the end of Washington’s bipartisan concern about climate change. It didn’t. During the campaign—at a stop in car-producing Michigan, no less—Bush declared:
Those who think we are powerless to do anything about the greenhouse effect forget about the “White House effect”; as President, I intend to do something about it … We will talk about global warming, and we will act.
In 1989, President Bush sen
t his secretary of state, James Baker, to the UN’s first annual meeting on climate change. Bush then offered a sweeping proposal to curb sulfur dioxide, the leading cause of acid rain, seeking caps well below the recommendations of his advisers. In 1990, Bush strengthened the Clean Air Act to bolster the fight against air pollution and ozone depletion. In 1992, his final year in office, Bush submitted the United Nations Framework Convention on Climate Change, the first-ever global treaty to reduce greenhouse gas emissions, to the Senate for ratification, and the treaty was indeed ratified through a two-thirds vote. The vote included ayes by Mitch McConnell and Trent Lott, neither of them known as a starry-eyed tree hugger.
There are many remarkable facts about this period, especially from today’s perspective. For one, Washington actually functioned. Moreover, many Republicans—though not all by any means—endorsed sensible environmental protections and sometimes led the way. When some on the left proposed command-and-control regulation of industry, Republicans countered with ideas like cap-and-trade, a market-based approach that allows firms to buy and sell pollution credits (an idea that many Republicans now oppose and a classic example of how the political winds have shifted). The idea has been wildly successful over the years. President Reagan used it to curb leaded gasoline. President George H. W. Bush used it to slash ozone-depleting chemicals and sulfur dioxide emissions. Colorado built on changes like these to clear up the brown cloud in the 1990s; without them it would still be seen hovering over nationally televised Denver Broncos games.
The Land of Flickering Lights Page 8