According to Bloomberg columnist Noah Feldman, Supreme Court Chief Justice John Roberts likely would rather prefer to do anything else rather than preside over the impeachment of President Donald Trump in what promises to be a partisan slugfest.
With House Speaker Nancy Pelosi (D-CA) holding up the articles of impeachment that are to be submitted to the Senate for the history-making trial, the conservative Roberts is also having to contend with a Republican-majority Senate led by Sen. Mitch McConnell (R-KY) who has personally admitted that he is colluding with the White House.
According to Feldman, the low-key Roberts -- who is conservative to the core -- likely is not looking forward to the appearance of making rulings in favor of the GOP House managers that could be viewed as excessively partisan.
"Roberts has devoted his whole career to trying to keep the Supreme Court from being seen as a partisan body," Feldman wrote. "That started with the famous baseball analogy he offered at his Senate confirmation, according to which the justices are like umpires who call balls and strikes. The comparison is pretty dubious: balls and strikes aren’t infused with controversial moral questions like when life begins and who can marry whom. But Roberts was trying to illustrate his ideal of a justice who stays out of the partisan fray of team spirit."
While noting that Roberts has sided with the liberal majority in a handful of cases, a trial that could lead to the ouster of a Republican president is an entirely different matter.
"Trump’s impeachment trial is a nightmare for Roberts because it will be very challenging to avoid an appearance of partisanship while he presides. There’s no ducking the job, though," Feldman explains. "When [former President Bill] Clinton was impeached, the Senate unanimously adopted rules of procedure that were, in the main, fair and balanced ... That sort of Senate bipartisanship would be terrific this time around. But it seems highly unlikely that, in the current atmosphere of extreme partisanship, the senators will manage to reach consensus, much less unanimity, on rules of procedure or evidence for the trial."
More to the point, the GOP could use their majority-status to manipulate the rules during the trial --including brushing aside some of the chief justice's rulings.
"Roberts could be asked regularly to rule on tough procedural issues, such as which witnesses may be called by whom or whether certain evidence (for example, hearsay) can be admitted. Deciding these questions would put Roberts in a difficult spot. Democrats will criticize him as partisan if he issues rulings favorable to Trump. Republicans will excoriate him as a traitor if he rules against the president," Feldman explains. "The best strategy available to Roberts may be to rely on a quirk of Senate impeachment rules. Under Senate precedent, a majority of the Senate can overrule any procedural or evidentiary decision made by the chief justice."
"Rather than ruling and subjecting himself to the indignity of being overruled, Roberts could say to the senators that he would like to them to vote on any close question, skipping the step of issuing a decision himself. There is some precedent for this in earlier impeachment trials, albeit mostly when a non-judge was in the chair. This approach would shift any partisanship to the senators and away from Roberts," he continued. "The catch is that the senators would almost certainly have to vote to agree to vote before Roberts ruled. If the parties vote in lockstep (which is probable but not certain), then Republicans, who enjoy a slight Senate majority, would themselves have to want to rule before Roberts did. In other words, the Republicans would have to agree to keep Roberts away from potentially controversial decisions."
But it still remains tricky for Roberts who would likely prefer to let the trial play out without giving the appearance that he has his finger on the scale of justice.
"Assume Republicans make Roberts rule, instead of voting to decide the issue themselves. If he decides for Trump, they win — because now the ruling seems more judicial and objective and less partisan," Feldman elaborated. "If he rules against Trump, the Republicans can overrule the decision. Doing so would make them look partisan, to be sure. They might prefer not to do it. But in the end, the public already knows both parties are partisan in this particular Senate battle. So the Republicans might be willing to overrule Roberts. At the same time, if Roberts suggests to the Republicans that they should vote before he rules on something, that might signal to the Republicans that he might be prepared to rule against Trump on that issue."
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