Episode No. 147: Our Democracy is Teetering On the Brink

As we prepare to celebrate the creation of this democratic republic of ours, two seemingly unrelated events (they are very much related in a profound way) threaten to fundamentally change this country--and not in a good way. Those events are the effective creation of an imperial presidency by the U.S. Supreme Court and President Biden's so-far steadfast refusal to end his campaign for re-election. How these two events tie together, and how we can avert the threat they pose, are what this episode is about.

Transcript

Episode No. 147: Our Democracy is Teetering On the Brink

Welcome to Keep the Faith, the podcast in which we explore contemporary issues through the prism of Jewish law and tradition.

As I mentioned in the last episode, we’re releasing new episodes during the summer only when something in the news cries out for exploration—and the news is doing just that this week.

Also, this weekend, we’re celebrating July 4th, which marks the success of what has been called The Great Experiment: the creation of a democratic republic in which the people have the ultimate power to make decisions and shape their own destiny, a society founded on the principles of liberty, equality, and justice.

The irony is that we’re celebrating July 4th in the very week that Great Experiment was placed in serious doubt by the Supreme Court of the United States in its just-ended term—especially by the final ruling it issued on Monday involving Presidential immunity—and by President Joe Biden’s insistence on running for re-election.

And so that’s what we’ll focus on in this episode.

There’s a lot of ground to cover and we’ll probably run around for about a half-hour today.

This week, the Supreme Court seems to have decided that the ultimate power to make decisions for the people and shape their destiny resides with it, not with We, the People. It also seems that when it comes to all people being equal, the High Court has decided that one person is more equal than the rest of us—and in a dangerous way: the President of the United States.

I say that it seems that way because, of course, the people do retain that ultimate power in the sense that they get to choose the President who appoints justices to the High Court, they get to choose the senators who must advise and consent to those appointments, and they get to choose all the members of Congress with their power to overturn many of the Court’s decisions.

In other words, saving the Great Experiment depends entirely on what happens on the one day each year when We, the People, get to exercise that ultimate power of ours: Election Day, Tuesday, November 5 this year. 

That’s why it’s so critical for President Joe Biden to remove himself from contention and allow the Democratic Party to nominate someone who has a better chance of not only getting elected on November 5th but who also has the coattails needed to carry a solid Democratic majority into both houses of Congress.

There are two reasons for this. One, as noted, is that Congress can reverse many decisions made by the Supreme Court’s 6-to-3 conservative majority, including, for example, restoring a woman’s right to choose whether to have an abortion. The Court effectively snatched that right away from women two years ago when it overturned Roe v. Wade. Congress can give that right back to them through the legislative process. This year, the Court snatched away from the federal government many of its regulatory tools, which has the potential to endanger many of our lives over the next few years. Congress also can restore at least most of those regulatory tools.

The other reason is that the next President will very likely decide whether the Court leans even more solidly to the far right in its decisions or returns to a more balanced approach to examining the issues that come before it. That’s because the two most conservative and most controversial associate justices, 74-year-old Clarence Thomas and 72-year-old Samuel Alito, are likely to step down over the next four years. The more moderately conservative Chief Justice John Roberts is 67 years old, and one of the Court’s most liberal associate justices, Sonia Sotomayor, is 68 years old. There is an outside chance that one or both of them will also step down during the term of the winner in November.

If just Thomas and Alito retire, a Democrat in the White House and a Democratic majority in the Senate would turn the nearly ubiquitous 6-to-3 far-right majority into a 5-to-4 majority on the left. Chief Justice Robert’s more judicial approach to his decisions could also mean a 6-to-3 majority in some cases. Since 2010, Roberts has aligned with Associate Justices Kagan and Sotomayor in 16 closely divided 5-4 decisions. Ever since Associate Justice Brett Kavanaugh joined the Court in 2018, Roberts has been part of 11 significant 5-to-4 majorities with Kagan and Sotomayor, including several important civil liberties cases. Roberts has also joined them in several dissents from the other five conservative justices. That makes Roberts a swing vote on the Court, often bridging the ideological divide between the conservative and liberal blocs.

Another potential swing vote, judging by some decisions this year, is Associate Justice Amy Coney Barrett. She joined the liberal justices in a notable 5-4 decision to preserve a federal rule restricting the sale of so-called “ghost guns” to licensed manufacturers, dealers, and gunsmiths. Ghost guns are guns that can be built from kits or 3D-printed components and lack serial numbers, which makes them untraceable. She also sided with them in dissenting against a decision to block an EPA provision aimed at reducing air pollution Such decisions highlight her willingness to consider the specifics of each case, and not just​ base her decisions on her political ideology. As you’ll hear, even though she agreed with the overall decision in the immunity case, she issued a rather pointed dissent in a most critical area.

Clearly, if the Great Experiment is to be saved from falling into the abyss, the Democrats need to win decisively across the board nationally in November—and, as things stand now, President Biden is not the candidate to make that happen.

Let me be clear about this. I have no respect for some of the Court’s conservative majority. I consider them—Thomas and Alito especially—as nothing less than bare-faced liars. They insist that they decide cases based on their understanding of the Founders’ intentions in creating our nation. The decision they reached this week in the Presidential immunity case clearly shows that to be a total falsehood. These justices decide cases based on their extreme-right, anti-democratic ideologies, not on the very explicit intentions of the Founders.

There’s something else, as well. The Court majority insists that the United States was established on Christian biblical principles, which it intends to uphold. Yet this, too, is a bare-faced lie because biblical principles are ignored when they conflict with extreme-right anti-democratic politics.

The Bible—starting with our Tanach and extending to their bible—is adamant regarding the sanctity of human life. Supposedly, that’s why this Court overruled Roe v. Wade two years ago. It wants to even protect the lives of the unborn, it says. Yet the Court this year effectively demonstrated that it has no concern whatever with the sanctity of human life for those already born.

The Court demonstrated this callous disregard for human life in the case known as Garland v. Cargill. At issue was a Trump Administration ban on the use of bump stocks that turn automatic weapons into machine guns, which are illegal here. The ban was issued in December 2018 because of three mass shootings that took place between October 2017 and February 2018, in which 101 people were killed, and 837 others were injured.

In the six-plus years since that ban was issued, there have not been any widely reported instances of mass shootings involving bump stocks. Despite the proven success of the bump stock ban in saving lives, though, the Court majority struck down the ban, making bump stocks legal again. That’s not the way to respect the sanctity of human life.

It’s important to note that the Court majority did not fall back on its usual Second Amendment argument, which at least could have offered some explanation for why so important a biblical principle had to be ignored; it’s because the Constitution insists on ignoring it. The bump stock ban, though, has nothing to do with the right to bear arms or anything else in the Constitution, and it would have been a huge stretch to claim that a bump stock ban violated the intent of the Founders. Instead, the Court majority hung their decision on the most specious of arguments: The ban violated the intent of Congress because Congress never included bump stocks in the legislation it enacted in the 1930s and again in 1968 banning machine guns.

Of course, Congress couldn’t possibly have done that because bump stocks didn’t even exist before the early 21st Century, but that apparently escaped the majority’s attention. Also escaping their attention is that if Congress felt that the bump stock ban violated its understanding of machine guns, it would have legislated to protect bump stocks. In the six years since the ban was issued, not even the most avid among the congressional Second Amendment crowd has even whispered such an absurdity. Some of them even praised the ban when it was issued in December 2018.

Violating both a biblical principle and the intent of the nation’s Founders is also evident in the decision the Court announced on Monday in United States v. Donald J. Trump, a decision that looms large when it comes to the future of our democracy. At issue was whether Presidents can be held accountable for crimes committed while in office. Basically, the Court said no.

The Court did say that “There is no immunity for [a President’s] unofficial acts,” but it ruled that “the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority….[T]his immunity must be absolute. As for his remaining official actions, [meaning actions outside his conclusive and preclusive constitutional authority], he is entitled to at least presumptive immunity….”

The Court majority defended this by arguing that they were only following the intent of the Founders who, so the majority opinion stated, “designed the Presidency to provide for a ‘vigorous’ and ‘energetic’ Executive.” They put “vigorous” and “energetic” in quotes because Alexander Hamilton used those words in discussing the presidency in The Federalist Papers No. 70.

In quoting Hamilton’s words in Federalist No. 70, though, the majority totally ignored what Hamilton said in Federalist Papers No. 69, in which he argued that the President is not above the law and must not even be presumed to be above the law. Wrote Hamilton in Federalist No. 69, under the system being established by the Founders, “The President of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes and misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”

The Founders' biggest objection to granting Presidents broad immunity was that doing so would create an imperial presidency, which was anathema to them. As Thomas Jefferson stated it in his Notes on the State of Virginia, which he wrote in 1781, “An elective despotism was not the government we fought for.”

The Founders wanted the President to have the widest freedom possible to fully exercise the duties of that office without hesitancy or distraction, but they had no intention of giving the President a get-out-of-jail-free card. The President was still to be subject to the law and liable to criminal prosecution while still in office—meaning impeachment in the House and trial in the Senate—or after leaving office, as Hamilton put it, “in the ordinary course of law.”

The Court majority on Monday went way beyond what the Founders envisioned when it ruled that what it calls presumptive immunity attaches even to some acts committed by Presidents outside their “core constitutional powers.”

Specifically, in this case, the Court said that Trump was presumptively exercising his “core constitutional powers” when he discussed overturning the 2020 election results with the Justice Department because he is the nation’s chief law enforcement officer.

The Court did say, however, that any such presumption may not extend entirely to his conversations with Vice President Mike Pence, in which he urged Pence to reject the Electoral College results when Congress met to certify them on January 6th. While it left it to the lower courts to decide whether immunity applies in those discussions, it forbade the courts to consider any evidence growing out of Trump’s discussions with the Justice Department, and perhaps even with Pence, which will make it almost impossible for the courts to decide whether immunity applies.

Interestingly, and perhaps consequentially going down the road, is that Associate Justice Barrett dissented from that part of the decision—and she was right on point in that dissent. The Constitution, she correctly said, gave the States the power to regulate how electoral votes are counted, with Congress having limited say and the President having none. Therefore, she said, “a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors.” That would allow all of Trump’s discussions to be presented at trial.

After saying, “I see no plausible argument for barring prosecution of that alleged conduct,” she added that she saw “no reason why the federal case against Trump could not proceed.”

If the Court majority truly relies on what the Founders thought, its ruling shows no evidence of that. It’s just another of the extreme-right justices’ bare-faced lies.

So, it would seem, is the supposed deference they give to biblical principles—principles that take a dim view of anyone being above the law, kings (and Presidents) included.

Thus, Deuteronomy 17:18-20, states, “When [the king] is seated on his royal throne, he shall have a copy of this Torah written for him on a scroll by the levitical priests. It shall remain with him for him to read from it all his life, so that he may…observe faithfully every word of this Torah and all of these laws, so that he will not act haughtily toward his fellows or deviate from the [law] to the right or to the left.”

Here is how the late 19th Century biblical commentator Rabbi Samson Raphael Hirsch explained these verses:

“As soon as he has ascended the throne, [the king’s] first act should be to make a copy of the Torah by hand. He thereby confirms…that he is not above the law, but rather that [the law] serves as the constant guideline of his entire life, the implementation of which among the people forms the sum of his royal task, and that he must lead the people in an exemplary manner as the ‘first son of the law’ in conscientious adherence to the law and in self-sacrificing devotion to the tasks set by the law.”

It cannot be any clearer. Not only is the ruler by whatever title not above any law, but he or she also is not better in this regard than any of the people he or she leads. The Court’s conservatives, some of whom in so many instances publicly tout their belief in the Bible and its precepts, clearly ignored this one.

Clearly, not to be ignored by us is what’s at stake in the November election. A President who has been granted almost unlimited immunity is an existential threat to our republican democracy, republican with a small “r,” the very threat that the Founders set out to abolish on July 4th, 1776.

President Biden especially must not ignore what’s at stake in November. In various speeches and remarks, he’s highlighted specific concerns about Trump’s behavior and the broader implications of his MAGA movement.

In a campaign speech near Valley Forge, Pennsylvania, for example, Biden said that “The greatest threat Trump poses is to our democracy.”​ At a campaign stop in Arizona, he said that Trump and his MAGA movement represented “something very dangerous happening in America now,” because they don’t “share the basic beliefs in our democracy.”

At another stop, he called November’s election the “sacred task of our time” because it aims to ensure that “democracy survives and thrives” rather than being “smashed by a movement more interested in power than a principle.”

Biden believes every word of those statements.

This is where religion enters into the equation. Biden is a sincerely religious man—we all know that. A Roman Catholic, he attends mass frequently and often talks about how important his faith is to his life and how it guides his conduct and his approach to politics. He’s devoted to issues the Bible repeatedly emphasizes, such as social justice, caring for the marginalized, empowering the disenfranchised, protecting the public’s health, and protecting the environment.

His faith is also what gives Biden the ability to connect with people personally, and especially with people who are grieving or going through difficult times. His empathy is almost legendary (I say “almost” only because “legendary” in its true sense implies something fictional, whereas Biden’s empathy is very real).

His faith helped him through some of his own most difficult times, such as when his first Neilia Hunter Biden, and their daughter, Naomi Christina Biden, were killed in a car accident in 1972. Or when his son Beau succumbed to cancer in 2015.

One of his most difficult times—albeit not one on a par with the death of loved ones—was the 90-minute stretch he spent on nationwide television last Thursday debating his presumptive opponent in November. His supporters had hoped that Biden would blow away the ever-mercurial and often unpredictable Trump in that debate. Instead, many believe, what he blew away was his chance to be re-elected in November.

The 81-year-old Biden is the oldest President in U.S. history. The 78-year-old Trump has made that Issue No. 1 on the campaign trail. Beginning in the 2020 election, Trump has continually harped on Biden’s “competence,” a euphemism he uses to avoid enraging elderly voters.

In 2020, then-President Trump referred to then-candidate Biden as “Sleepy Joe.” Said Trump: “He’s not going to be running the government. He’s just going to be sitting in a [nursing] home someplace.”

In 2022, as the midterm elections loomed, he said, “Biden can’t put two sentences together. They wheel him out, he goes back to his basement; you know, they put him in the basement.”

Actually, they put him in the Oval Office, which is where the voters put him in 2020, but truth is a rare commodity where Trump is concerned, as his often insensitive and, at times, outrageous debate performance proved yet again, such as his “Black jobs” comment. However, his “Biden can’t put two sentences together” comment did seem to be borne out at crucial times during the debate as the President stammered, stalled mid-sentence, and tried to finish what he had begun to say.

Trump jumped on that in a post-debate comment on his Truth Social website: Biden’s “mind and memory [are] completely shot, and [he had] marbles in his mouth.”

Media coverage over the past six months has only helped underscore Trump’s attacks. Media Matters for America reports that from January 15 through June 17, three of our most prominent national newspapers—The New York Times, The Washington Post, and The Wall Street Journal—ran a combined total of 76 articles related to Biden's age but only seven articles dealing with Trump's age.

Biden himself acknowledged his poor performance on June 28th, less than a day after the debate. He admitted that his age played a role in that performance —something he could not deny because it was there for all to see. However, he also insisted that his age played no role in his ability to be President.

Said he: “I know I’m not a young man. I don’t walk as easily as I used to. I don’t talk as smoothly as I used to. I don’t debate as well as I used to. But…I know how to do this job, I know how to get things done.”

That same day, though, the New York Times editorial board called on the Democratic Party to move Biden to the sidelines before it was too late. As the editorial board wrote: “The clearest path for Democrats to defeat a candidate defined by his lies [meaning Trump] is to deal truthfully with the American public: acknowledge that Mr. Biden can’t continue his race and create a process to select someone more capable to stand in his place to defeat Mr. Trump in November.”

The intense focus by Trump and the media on Biden’s age is why America was watching on June 27. Voters wanted to see for themselves whether Biden, in fact, was too old for what’s described as the world’s most difficult job. Many in America came away believing that he was. Even before the debate was over, a bevy of Democratic politicians were questioning whether he should be their party’s nominee come November. That chorus has been rising ever since.

Voters were also questioning his ability to serve. A post-debate YouGov poll with a 2 percent margin of error found that 72 percent of voters believe Biden’s mind is not up to the task of being President. Other polls confirm this.

This is where Biden’s religiosity comes in. The President should carefully study the text of Deuteronomy 3:23-28, read between the lines, and understand the message buried there—a message that says a leader must know when it’s time to step down and hand the leadership to another.

Moses is 120 years old. God has told him that his time’s at an end and that Joshua will now be Israel’s leader. Moses is distraught, and he pleads with God:

“Let me, please, cross over [into Canaan with the people I have led for these last 40 years], that I may see the good land on the other side of the Jordan….”

Beneath those words, Moses was saying to God that leading Israel into Canaan and guiding them in conquering that land was the mission God had given him 40 years earlier. Now, Moses is saying that he should be allowed to complete that mission. After all, he had done all that God had asked of him. He even put up with the constantly rebelling Israelites for all those 40 years. He endured their calumnies time and again. Not allowing him to enter the land was a great injustice. In Genesis 18:5, in the Torah that we refer to as Torat Moshe (The Torah of Moses), Moses quoted Abraham as saying, “Shall not the judge of the whole Earth act justly?” Moses was saying now that the judge of the whole Earth should act justly in his case, as well,

Despite the special place Moses occupied with God, which God made clear to Aaron and Miriam in Numbers 12:6-8 when they dared to challenge Moses’ leadership, his plea angers God. Moses’ “eyes were undimmed and his vigor unabated,” as Deuteronomy 34:7 tells us, but at 120 years old, leading a nation into battle was for someone younger to undertake, and Moses must realize that. He also must realize that the Israelites have only one objective at this point—conquering Canaan—and Joshua, not he, is best suited to lead them in that task.

“Enough!” God says. “Never speak to Me of this matter again…! You shall not go across the River Jordan. Give Joshua his instructions…, for he shall go across at the head of this people….”

A leader must know when it’s time to step down and hand the leadership to another. That’s the message God gave Moses—and it’s a message God gave to us, as well.

And that’s a message President Biden, guided by religion as he always has been, needs to seriously consider well before the start of the 2024 Democratic National Convention on August 19.

Biden needs to consider another biblical text, the first few verses of Ecclesiastes 3, which state: “There is a time set for everything…: A time for planting and a time for uprooting the planted…; a time for seeking and a time for losing; a time for keeping and a time for discarding.”

If Biden, religious as he most certainly is, is serious about his warnings that Trump poses an imminent existential threat to American democracy, which Trump surely does, he must recognize that there’s a time for coming and a time for going—and this is his time for going.

This is Rabbi Shammai Engelmayer. I do hope you come back for my next podcast, whenever that drops again this summer, and I’d like to hear what you have to say about this or my other podcasts. Go to www.shammai.org—w-w-w-dot-s-h-a-m-m-a-i-dot-o-r-g—and email please.

If you don’t get the Jewish Standard but want to read my columns, go to the columns page of my website. The latest column focuses on the Ten Commandments, what they really are, and why all the fuss about them is so misguided.

Have a great week and a great July 4th weekend despite how bad things may look right now.

Especially with COVID-19 cases back on the rise in New Jersey, New York, and Pennsylvania, among 38 states reporting a rise in COVID cases right now, keep wearing those N95 masks in indoor venues no matter who tells you otherwise, and get fully vaccinated if you haven’t done so as yet, including both the third and fourth booster shots.

Stay healthy. And above all, stay safe.