The Democrats have manifestly failed to build the national consensus necessary to remove a sitting president from office. The “impeachment inquiry” decreed by Nancy Pelosi in late September, combined with Adam Schiff’s inequitable conduct of the subsequent public hearings, have produced the reverse of their intended result. Several reliable voter surveys show that they weakened support for impeachment among Independent voters, particularly those in crucial swing states, while hardening support for the president among Republicans. Yet the Democratic leadership is clearly determined to pass articles of impeachment against Trump, without regard to the legal merits or the misgivings of “moderate” members of their own caucus.
When the Democrats pass their impeachment resolution, the sordid spectacle will move to the Senate, where Chief Justice John Roberts must preside over a trial that will determine if the president has actually committed an offense that would justify his removal. This should worry the president and his supporters. Historically, the role of the chief justice in these proceedings has been somewhat symbolic. Yet it will be necessary for him to rule on a number of important motions. The weak Democratic case against President Trump, combined with the Democrats’ penchant for manipulating procedural rules, all but guarantees that they will inundate Roberts with a tsunami of parliamentary maneuvers that he may be ill-equipped to manage.
During the Clinton impeachment trial, Chief Justice William Rehnquist was forced to spend entire days refereeing disputes over frivolous Democratic motions. Almost an entire day, for example, was squandered arguing over a motion to dismiss the two primary articles of impeachment. The Republicans objected, of course. Rehnquist consulted with the Parliamentarian and ruled, only to encounter another such motion and another objection. The transcript of that day (January 25, 1999) shows that the words “object” or “objection” appear 29 times before that motion was resolved. Throughout this episode Rehnquist remained unflappable and in control of the proceedings. Does Roberts possess such mettle?
Moreover, even if the chief justice is fast enough on his feet to avoid some procedural blunder that harms the president’s case, it isn’t at all clear that he is immune to the general Beltway aversion to the homo novus. This is what Roman patricians called unwelcome outsiders who achieved high office and implemented unwelcome innovations. The most famous of these “new men” was Cicero, whose political enemies eventually contrived to exile. A similar impulse is behind much of the animosity that our political class feels for Donald Trump, and Roberts would seem to share that prejudice. He raised eyebrows a year ago by publicly rebuking Trump for referring to U.S. District Judge Jon S. Tigar as an “Obama judge”:
We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.
This was not merely a breach of decorum by the chief justice, who silently accepted far worse disrespect toward SCOTUS itself from Trump’s predecessor; the claim was also nonsense. As the president pointed out, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” Trump went on to remind Roberts that the Ninth Circuit is the venue of choice for open borders advocates hoping to halt enforcement of immigration law and that many of their rulings are overturned. A recent SCOTUS ruling in favor of Trump’s new asylum rules is a case in point involving the very judge the president criticized.
Chief Justice Roberts is also susceptible to the social and political pressure that accompanies important questions over which the political class has major differences with the voters. The most famous example was his bizarre ruling in NFIB v. Sebelius involving Obamacare’s fine for failing to buy insurance. Everyone defending the mandate insisted that the fine was not a tax. Yet, caving to Beltway pressure to save the law, Roberts deemed it a tax nonethless. Justice Scalia wrote in his dissenting opinion, “To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” Three years later, in King v. Burwell, Roberts again rewrote the law to save it, and Justice Scalia’s dissent was scathing:
This Court … rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.… Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges.
The most recent case in which Roberts produced one of his weird rulings involved whether a citizenship question could be added to the 2020 census. He got rolled by the ACLU pursuant to an irrelevant disconnect between the decision to include it and the Trump administration’s motivations. The ACLU produced “evidence” demonstrating that advisers to Commerce Secretary Wilbur Ross discussed the question with a consultant and was thus inconsistent with the sworn testimony of department officials concerning the real purpose of the census question. Never mind that it isn’t unethical or unusual for political appointees to consult with outside experts. The idea was to make Roberts worry about appearances.
This concern for appearances that plays such an important part in Roberts’ thinking is one of the primary issues, along with an oddly inconsistent record as chief justice, that should worry anyone who cares about President Trump’s ability to receive a fair impeachment trial in the Senate. The pressure that will be applied to Roberts pursuant to the Senate trial will dwarf anything he has experienced during his tenure on the court. And the friction that already exists between Trump and Roberts concerning the judiciary will affect the latter’s judgment whether he knows it or not. Indeed, the Washington Times reports that John Cardillo of Newsmax TV has called for Roberts to recuse himself from President Trump’s Senate trial:
There is already a crisis of confidence among the American people that we have a fair system of justice. When you have a chief justice of the Supreme Court overtly making comments that are derogatory to the president of the United States, take all speculation out of the process.
It’s unlikely that the chief justice will take that advice, but perhaps he should. The Democrats will pass an impeachment resolution, but their articles of impeachment will inevitably fail to warrant the removal of a president less than a year away from the next election. If the Schiff hearings are any guide, they will probably include such nebulous charges as abuse of power and corruption. If that is the case, the president’s attorneys will certainly request the chief justice to dismiss the charges as unconstitutional. Does John Roberts have the guts to do so and face ostracism by the political class? If not, it means he just isn’t up to the job.