The Senate on Trial
Kavanaugh’s Nomination contains a civics lesson on the dangers of too much democracy
Bob spoke with Life!Line host Craig Roberts before the confirmation hearings on Thursday. Nothing in Bob’s commentary has changed from the day before Dr. Ford’s and Judge Kavanaugh’s testimony. Everyone is entitled to their opinion — even their passionate opinion — but the Senate must rise above the emotions in deciding the fate of the Supreme Court, he says.
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Announcer: Live from northern California. It’s Life!Line with Craig Roberts. He’s the host of Northern California’s longest running conservative talk show. He’s a man with a message, a conservative with compassion — he’s Lifeline’s own Craig Roberts.
Craig Roberts: This is uncharted territory on many levels and I don’t want to make light of the Kavanaugh nomination hearings, but I want to put this in context here. I do not wish nor intend to make light of the seriousness of many of the allegations that are being presented here, but it seems as if this confirmation hearing is getting far more complex than any of us, certainly not least of which Brett Kavanaugh, could ever have imagined.
Normally, we take a look at things in the Monday morning quarterback role, to try to determine what’s already happened. Today we look forward to what may potentially happen tomorrow.
Many think this nomination appears to be literally unraveling at the seams. Joining me is bestselling author and syndicated talk show host Bob Zadek. Bob is the host of The Bob Zadek Show, heard weekday mornings at 8:00 AM here in the San Francisco Bay Area and all across the west coast, locally on 860 AM — the Answer. Bob, great to have you with us.
This nomination process seems to take on a distinctively circus-like atmosphere.
Bob Zadek: I don’t know if that’s the right metaphor. I find myself uncharacteristically on many levels emotionally involved in this. Emotions aren’t usually so important to my public persona, but it may spill over a little bit.
If I had to summarize what’s going on with the Kavanaugh nomination, I would summarize it in three words, “The founders knew.” I hope our listeners will see by the end of the show how everything that is happening — whether you think it’s good or bad — was predicted by the founders. They did their darndest to prevent this from happening, and we will see that this is about too much democracy.
There is so much to be learned on a civics level — not on a personal level, not on life at Yale, not on the effects of alcohol, not on sexual behavior or non-behavior. That’s all almost irrelevant to what is going on. What is relevant are the profound lessons about the structure of government that can be gleaned from what is going on irrespective of whether you have an opinion on confirmation — but we’ll get into that during the course of our conversation.
Craig Roberts: Well, let’s back up for a second here. I’m curious — going into the heart of a key question here. As we see the first allegation, now we’ve seen that list grow to three separate people bringing allegations forward. This is after, of course, the conclusion of the initial committee hearings and testimony.
Certainly as we know in multiple occasions down through the years, for multiple judicial positions, there has been due process and investigation taking place — the FBI, and perhaps other agencies have looked into Brett Kavanaugh’s background prior to his confirmation to various judicial posts through the years.
For the benefit of listeners, Bob, your background is as an attorney — are there any aspects where you look at all of these allegations coming forward so late in the game — post-hearing — does it seem to smack of a lack of due diligence at some level here? Either on behalf of the judiciary committee or on behalf of the FBI? Maybe all of them.
Bob Zadek: I am as intellectually and emotionally involved in this controversy as anybody that I’ve spoken to, but I find that people are behaving and asking questions as if this was a trial. I say it is a trial, but you know who’s on trial? Our system of government and our country. That’s who’s on trial.
Brett Kavanaugh is not on trial. Being appointed or confirmed for the Supreme Court, the only question before the Senate is “Will the country be better off with Kavanaugh on the bench or not?”
That’s the only question. The other questions — Did he do it? Who do you believe? Why didn’t she come forward? Why didn’t you come forward? — all those questions are for a different forum, and I would remind our audience that the body of government that is asked to decide this is the Senate.
Why did the founders decide that advice and consent comes from the Senate? Was it random between the Senate and the House? No! Why the Senate? Because the Senate was designed to be in politically immune to the mob. Politically immune to pandering to the public — to doing what the voters cry out for.
The House is elected every two years and they are always running for reelection, 24 hours a day, every day of their life. They are designed to be responsive to the public. When the mobs cries out for something, they had better listen or they don’t get reelected. The Senate gets elected with six-year terms, which means enough time for issues to subside.
Everybody in the public has taken sides, one way or the other. They’re writing their congressman. They’re petitioning. There are protests in the Senate. If they did what they are supposed to do, they would ignore the mob and ignore the public.
The public has understandable strongly held beliefs both ways. The Senate — if they were up to the task and true to their oath — would turn off their TV, ignore the mob, and they would deliberate, asking themselves, “Would this man help the country on the Supreme Court?” not “Should we give him a reward?” The question is, “Could he be on the Supreme Court” and not, “Should we listen to the mob?”
I am so angry at Fox News and the other media for publishing the poll. Sixty percent of the people say he did it. Forty percent say he didn’t. I respect their passionate point of view, it’s simply not relevant to the task of the Senate. The founders knew it, and the senators are forgetting their job.
Craig Roberts: Well, certainly the rhetoric has ratcheted up pretty significantly, post allegations. It has been riveting to me to listen to all of the debate over questions that on the surface appear to be reasonable. Questions such as will he be balanced? Will he be fair? Will his opinions skew to the right, to the left or the center? And while in the minds of some, those may all be very legitimate questions, isn’t the core question here before the Senate Judiciary Committee to decide whether or not Brett Kavanaugh — or any other candidate, quite frankly, before or in the future — would be qualified based on their comprehension of the United States Constitution and original intent? I mean, are those the questions that should be asked? Not whether or not he’s going to be right, left, or center?
Bob Zadek: Yes. Except with one qualification. Craig, I would remind you that the task of the judiciary committee is only to decide whether to send it to the floor of the Senate for a vote. The judiciary committee doesn’t decide if he gets confirmed. They decide if it gets to the floor. They only are the screening committee. They are like the HR department — they screen candidates until it goes to management, the floor of the Senate to decide whether to hire.
Craig Roberts: Once it gets to the floor of the Senate, assuming that this nominee does (I think we’re seeing doubt cast further and further on that as the minutes tick by), but assuming that in fact this nominee makes it to the Senate floor, is not their task to then make a determination based on the recommendation of that judiciary committee? Then, presumptively, is it not then their job to determine the fitness of this candidate based on his understanding of law, history, the Constitution, and original intent, and not necessarily to get into all of this political minutiae?
When I hear them grilling a potential Supreme Court candidate as to what their opinions are on very detailed issues of cases that may never even come before the US Supreme Court, I have to wonder if this is more about setting an agenda or simply trying to show respect for the process that was put in place by our Founding Fathers.
Bob Zadek: You’re exactly right to raise that question and of course I agree with you — I would remind you that nothing in our Constitution even requires a Supreme Court justice to be an attorney. There’s nothing constitutionally wrong with having an accountant sit on the supreme court. Now, he may not be competent, but the founders didn’t think that understanding the Constitution was a litmus test.
I would remind our friends out there, everybody being so passionate and having an opinion and petitioning and crying out, and having a strong opinion — in our country, we have, of course, jury trials. Now when we have a jury trial in a criminal case, juries are screened, and people will be stricken from the jury and not allowed to serve if they are found to have a bias. Why? Because they want the adjudicators — the finders of facts — to look at the facts in an unbiased way. Everybody in the public from the #metoo movement on down has strongly held beliefs.
If this were a criminal trial, none of them would be allowed to serve. In other words, the country says, “We respect your passionate belief, but we strike you as being incompetent to decide about the guilt or innocence.” If they would be incompetent to serve on a criminal jury, then their opinion is totally irrelevant as to whether Kavanaugh should be on the Supreme Court and therefore the Senators must act like unbiased jurors in this regard. They have to forget their bias if they can, and make a decision objectively on the merits.
All of this passion is disturbing to me, because the founders feared the hysteria of the mob, because the mob acts on the moment, without reflection. That’s not a criticism of any human being in America. That is simply how it works. That’s the dynamic, and right now we are seeing mob rule.
Craig Roberts: Well, there’s no doubt about that, and you see this on both ends of the political continuum. People have already drawn conclusions before one word of testimony has been spoken, before one question has been asked, before deliverance of any documentation, eyewitness accounts.
I want to reiterate what Bob said. This is not a criminal trial, though we certainly seem to be treating it as if it were, but I find it troubling that there are such strong opinions that are being intimated by both sides before we’ve even heard from the accuser — before Brett Kavanaugh has had his opportunity to answer.
Bob’s book is, “Secret Sauce: the Founder’s Original Recipe for Limited American Democracy,” and as you hear our conversation today progress, you’ll perhaps begin to get a glimpse as to what that means.
When people say, how can you speak against democracy? Wait a minute, here. They created a constitutional republic. We often misapply the term democracy willy nilly, and almost wantonly when it’s convenient. But there was, in fact, as the framework of the Constitution and the founding fathers demonstrated, a plan for limited democracy under a constitutional republic.
Who is on Trial Here?
Donald Trump: “People are going to have to make a decision. 36 years. There’s no charge. All of a sudden the hearings are over and the rumors start coming out. Why did they wait so long? Why did Senator Feinstein wait until the hearings were over to make this case? They’re actually con artists, because they know how quality this man is and they’ve destroyed a man’s reputation and they want to destroy it even more.”
Craig Roberts: Welcome back to the conversation. There is President Trump opining on where we’re at today. Tomorrow, of course, we will begin the next phase of this confirmation hearing testimony, heard by Christine Blasey Ford. There are now two other accusers that have stepped forward and it seems to be almost like the proverbial onion — each layer you pull back, there’s one more hiding underneath it. There is much talk about presumption of innocence.
Many of the references that we’ve heard in mainstream media almost would suggest that this is a trial when it in fact is not a trial, but it definitely seems to be a scenario that is devolved. How far away from the original intent of the founding fathers has this process become? We hear a lot of the opinions in relationship to a presumption of innocence and accusations of guilt and so on and so forth.
At the end of the day, though, doesn’t this really come down to the character of the man as it relates to his capacity to do this job? Certainly many of these accusations point to the question of character, but if you had to look back from your experience, knowledge and years and years of studying the founding fathers and the Constitution — from your viewpoint, if any of the founding fathers could be here with us today to comment on what they see taking place, what do you think their remarks or observations would be?
Bob Zadek: Their remark would be “We were right.” When you say it’s about character, I take a deep breath. Perhaps it is. However you appraise character… Roosevelt — who is lionized by many Americans as one of the greatest president — had a lot of ugliness in his past. He was not sympathetic to the Jews in Germany. He was kind of an isolationist. He tried to avoid the war. Remember he interned the Japanese. Does that reflect on his character? I think it’s undisputed that he had profound biases that were ugly by today’s standards.
There’s no rule, and it’s a very personal decision. How much does character matter? There are lots of parents out there, and we know there’s almost a stereotype — a policeman or a school principal brings home a child to a parent and the child did something that is terribly offensive to the parent, and to society. The parent’s first reaction is, “He couldn’t have done that. He’s my son or daughter.” Total disbelief, and no matter what is said the parents will — quite naturally — “No, you’ve got to be mistaken. You have the wrong kid.”
So when you bring all these biases to the judgment — when you asked “how much does character matter?” — it’s too hard a question, and that’s a personal decision not to be made by the public.
There’s a wonderful, wonderful story — several stories. The first observation of what I’m going to describe was by Aristotle, and he anguished over it. It’s the battle between the heart and the mind. The mind tells you one thing. The heart tells you another. It is one of the most impossible struggles for humans to have, and it’s part of being a human being. You can’t turn off the organs. So what you are seeing in this controversy, I daresay, is for a lot of people, the heart is full of passion one way or the other, and that is dictating the conclusion. It’s part of being a human being and the only people who must rise above it are the senators.
The senators for the most part hang out, they don’t do anything very important. Once in a while, as President Kennedy wrote, they have to exhibit what he calls a profile in courage. They have to be the statesman that the position demands, so they must conquer the battle between the heart and the mind.
I’m not troubled by the fact that so many people are so passionate. I would say irrational people are allowed to be irrational, so long as the irrationality does not harm the country or somebody else. The people who are not allowed to be irrational or political are the senators. To me, this is about the Senate.
Kavanaugh is not on trial. The Senate is on trial, and will they rise to the occasion? Who knows.
Just one more comment, Craig. We have been reading ad nauseam about the Democratic senators in purple or red states like Joe Manchin and Claire McCaskill, and they are trying to see how they should vote to get reelected. That is so offensive to me. Thinking about putting your own job ahead of the country. They should be ashamed of themselves. This is not about politics. This is about being wise and being a statesman. The Senate is on trial — not Kavanaugh, not the #metoo movement, not the accusers. It’s the Senate, and that’s where I look to, to be up to the task.
Hyper-Politicization and the Importance of “Process”
Craig Roberts: Sadly, I think what has happened here is that there has been such an overt politicization of the process — and you point to it very aptly. There is a stark difference between being a politician versus being a statesman. Maybe the politician’s skill is what gets you elected to office, but then once there, really and truly, if you are adhering to the intent of the founding fathers to fulfill your duty to the nation, you need to take off the politician’s hat and put on the statesman’s hat.
There has been an abundance of troubling things about this, because it is not just the politicization that is taking place here, but the fact that they’re testing the waters to see where popular opinion is going before they either make a pronouncement or come forward with a decision or determination. Again, in some cases, with complete absence of any of the evidence. Certainly, in most cases, they are paying far too much attention to what seems to be the pool of public opinion as opposed to singularly looking at this in as politically-disconnected a manner as possible.
My fear is that there is a good percentile of members of the judiciary committee, and ultimately the Senate, that are going to have a difficult, if not impossible time disconnecting the political side from the statesmen side of their job.
Bob Zadek: Does anybody notice that members of the house are called “representatives?” Members of the Senate are not called “representatives,” they are called “senators,” which presupposes that they have wisdom. The senators do not represent the people. Remember the 17th Amendment. In 1913, before the 17th Amendment, senators were elected by the states, not by people because they were not representatives. They were there to chill the passions in the House. They were called the “saucer to the cup”in the House.
Hot coffee was in the cup. If you wanted to cool it down, you put the coffee into the saucer and it was cooled. The Senate should be chilling the passions and calming it down. The 17th Amendment made it harder. They don’t represent the people. They are there be wise and to do what’s best for the country. Here we have Senators calculating their reelection.
Imagine a capital murder case and people are serving on a jury. Imagine that they are told, “Thank you for serving on the jury. You get paid $500 a day, except if you convict, you get paid a thousand dollars a day. Now be objective, Mr. Jury, because somebody’s life is in your hands.”
Does anybody doubt that would lead to more convictions? Why? Because people in the jury behave in their self-interest. That’s why we try to separate the self-interest. Manchin and the others, indeed maybe every member of the Senate, is voting on this issue in their self-interest. A curse on all of them for doing that. Vote your minds not your self-interest.
Craig Roberts: Well, you know, there has been a lot of talk about conflict of interest here in terms of who is representing whom. Now apparently the attorney for Stormy Daniels is representing the most recent accuser, this Julie Swetnick, who is coming forward claiming that she has attended twenty some parties through the years, which I think calls for questioning. People have said, well, if you’ve been to that many parties where this kind of behavior is taking place, and on not one occasion did you find it necessary to report ir to the authorities… I digress.
The conflict of interest here lies at the heart of the political aspirations of members of that committee, versus what is exactly and properly and appropriately in the best interest of the country, and with the kind of seriousness and gravitas that needs to accompany a lifetime appointment to the highest court in the land.
I concur with you on this point, Bob. As much as it’s bothersome to hear these accusations, and whether it goes from one to two to three (and this seems to be the stuff of which the front pages of the National Enquirer just loves to eat up), at the end of the day, what really here is on trial is not Brett Kavanaugh or the three accusers, or the more the media’s handling of any of this.
What is really on trial here is whether or not the members of the Senate Judiciary Committee can disconnect themselves from the mob mayhem and be clear thinkers, or whether they will succumb to the mob mayhem. And if that happens, it spells a pretty disastrous future for our Republic. Does it not?
Bob Zadek: These days there is so much factionalization and tribalism that frankly I have never been so frightened about the country and our system of government that I love. In truth, Craig, and I’m speaking from my heart, I have never been so frightened as I am right now. I would like to think that I am intelligent enough and dispassionate enough that I could figure this stuff out. I can find the solution. I’m usually profoundly optimistic. I can’t find the optimism now with all of this tribalism, except to say that the only savior has to be the system itself. To me, it’s all about process.
People live their lives in a certain way — if a friend of mine says, “I need some money, I’ll pay you back.” I will lend him the money or her the money. Now, I don’t take back evidence. I don’t take back a promissory note. What if my best friend stiffs me and doesn’t pay me back? That will not cause me to change how I behave. I will simply say, “Okay, shame on him.”
But I have values, and my values will allow me to look in the mirror when I shave/ I will stick to my values. I will behave in a certain way because it’s process. It is not an anecdote. It is not an event that dictates my life. It is making a set of rules that I am comfortable with and sticking with it.
The Senate is called upon now to respect why their position was created — to be above the fray, ignore the heat, and simply decide what is best for the country, and what does the country dictate? They should not act selfishly to save a job. The fact that somebody can make this decision just so they can keep a great job is so offensive to me. Craig, I despise it.
Craig Roberts: Well, and the irony is — and I say this as a point of reference for our listeners — that typically when there’s something crazy going on in the news, we like to go to Bob Zadek because he is the level head in the room. He is the dispassionate one. He is the one that says, “Okay, everybody ratchet down the rhetoric, stop breathing the helium — don’t drink anymore of the Kool Aid.”
Let’s logically, methodically talk our way through this. Let’s look at this topic in the light of history, the founding fathers and the documents that have been left behind to give us some luminance and guidance into their thought process and their original intent. Everything from the Federalist Papers to the Mayflower Compact, to the Constitution, to the Declaration of Independence, that all serve as wonderful aids to get us to that place where we can begin to reason through. Scripture says, “come let us reason together,” to reason through these questions, and then come to a logical, thoughtful conclusion.
When we find ourselves at a crossroad where even Bob Zadek finds himself befuddled — for the want of many better terms — over what we’re seeing now, it ought to be tremendous cause for concern for all of us. Bob’s reaction is in indicative of a more serious underlying ailment in our country.
Bob Zadek: It is one thing to say, “We are at a crossroads because this is the swing seat and Kennedy’s position historically ran either right or left — this is going to impact the outcome of decisions by the court for years and years and years to come…” Some of that may be true, but let me remind you that there are other members of the Supreme Court that may at some point die or retire and could be replaced, so the makeup of the court and its nature can swing from period to period and certainly from administration to administration.
So it is not like what is going to happen here is anytime soon going to be set in concrete and in perpetuity forever and ever. But that said, how the process plays out, and how close to respecting the intent of the founding fathers and their warnings and concerns — how close to all of that this plays out — will very much speak to not just the direction of the Supreme Court for years to come. Most shockingly, it will speak to the direction of our nation, and whether or not it goes in a downward spiral, where one day I am on the show talking about it in past tense. Or, can we pull it back from the precipice of potential disaster?
Craig Roberts: Bob Zadek’s concerned about what’s going on right here. We all should be very, very concerned. The Bob Zadek Show Sunday mornings at 8:00AM on our sister station, 860 AM.
