I was nearly as thunderstruck as were the pastor, his flock, and the press. I had never heard Sanjay utter a prayer, and thought that his scruples would have prevented him from addressing a supplication to God, which, so far as I could tell, he regarded as a wholly imaginary being. It took me only moments to realize that the prayer, though it took the form of a supplication, was not expressly addressed to the deity or anyone in particular. Instead, it was a simple invocation of collective memory and of collective gratitude. Prayer, Sanjay later told an interviewer, was a singularly important and powerful thing, and something on which Christianity had no monopoly. Like meditation, it caused us to pause, focus, and turn inward and to organize and express our thoughts and desires. It was a meditation on desire and happiness and our relationship to the world, fate, time, and one another. When done in a group, it defined community. It was cathartic, energizing, and calming. All these benefits, he noted, were fully realized whether or not the prayer was addressed to, heard, or answered by a supernatural being.
His gesture to the Pennsylvania pastor captured the daily news cycle and initially threw F3 into a rare state of confusion. F3 first cycled through a series of explanations: the prayer was a cynical exploitation of people’s faith that was typical of the Antichrist; the prayer was a staged event where the purported pastor and congregation were really fronts for TW; the prayer and reference to Jesus were evidence of the Holy Spirit having descended for a brief moment, overcoming the power of Satan and illuminating Sanjay’s mind with the power of Christ. But when a couple of ministers giving unscripted interviews said they thought Sanjay’s prayer was a useful reminder that those building the Christian Nation must not overstep their bounds and interfere with the freedom of conscience and freedom of worship of other faiths, F3 simply dropped the entire episode and pretended that it had never happened.
The other networks, in their coverage of the incident, decided they needed to explain to their audiences Sanjay’s references to “fascism” and “communism” and why Sanjay was implying similarities between those movements and the Christian Nation. This was in response to a flash poll by Pew that revealed that only 8 percent of those Americans polled that afternoon could even vaguely define the word “fascism” and only about 30 percent gave a satisfactory account of communism. I just remembered something that really shocked me that evening. As part of the coverage of Sanjay’s prayer, CNN reporters interviewed high school students across the country about the cataclysmic events of the twentieth century. A polite, well-spoken girl from Iowa was introduced as a “straight-A” student and asked whom America had fought in the Second World War. “Uh, I’m pretty sure it was the Jews, right?” she answered. And there you had it. Only seventy-two years after the end of World War II, the identity of the enemy, the phenomenon of fascism, and even the Holocaust itself all had been erased from the cultural memory of the new generation of America’s middle class. All the confused straight-A student knew is that it all had something to do with the Jews.
This confrontation with the Pennsylvania pastor was typical of Sanjay at the height of his power. Had it been conceived and planned in advance, it would have been a brilliantly strategic move, well designed to advance our cause. But it wasn’t. It was even stronger by virtue of being completely spontaneous and authentic. Viewers could tell, when Sanjay paused before turning, that he was acting on instinct. They knew that his desire to reach out and connect was genuine. They saw that Sanjay truly believed that he had more in common with the pastor than differences. And, importantly, they accepted that his admiration for Jesus and his message was real. This was the Sanjay whom the country saw in action almost daily during that year. He was disarming, charming, authentic, earnest, modest, and compelling. And—unlike any politician and most other charismatic public figures—his motivation was completely free of ambition or greed. Charisma when turned to the good is a powerful thing. And yes, had he really been the Antichrist, he would have been a superb one.
Inside the courthouse, Sanjay and I sat behind the RCD&S legal team, who greeted us cordially. I have to say that all awkwardness with my former firm had disappeared. I had become the alumnus of whom they were most proud, and my association with the firm and its resulting leading role in pro bono support of the anti-Blessing movement now made it the firm of choice for law students anxious to have the chance to do something to avert the disaster.
Judge Denny Chin mounted the bench. He was an enormously respected jurist who was widely expected to have been elevated to the Court of Appeals but was bypassed during both terms of the Palin administration. Judge Chin read his decision from the bench. Within moments I realized he had adopted the arguments in the plaintiffs’ brief almost as written. It was a complete victory on every front. He was scathing in his denunciation of The Blessing as a strange beast, wholly decoupled from our long tradition of common law, jurisprudence, and civics; he said it was ignorant of and in violent conflict with the Constitution; and he stated that he considered it to be a thing whose very structure and substance betrayed a deliberate and broad authoritarian program, anathema not only to the Constitution and the law but to Western civilization itself.
This afternoon at my desk, the feelings of that day—not the memory of them but the actual feelings—seemed to replay themselves from a recording buried deep in my gut. I felt again feelings of jubilation and vindication so profound that I could not stay seated in front of the typewriter. I paced up and down the edge of the lake, realizing that it had been one of the happiest days in my life and reveling in the feelings of accomplishment that the memory had unleashed.
Although we had dared to hope for this type of decision, we had underestimated the impact it would have. A respected federal judge had not only analyzed the myriad legal shortcomings of The Blessing in learned detail but also called out the administration and Congress on their motives and predicted the inevitable political outcome were The Blessing allowed to stand. All the mainstream media’s carefully measured rhetoric, respectful speech when talking about the president and Congress, and dedication to covering “both sides” now evaporated, and the independent media conveyed the sense of historic urgency that TW had promoted since the election. From that day on, the media and coastal public treated Sanjay as a prophet whose lone voice had suddenly been vindicated and validated and to whose predictions they now accorded a presumption of truth. It was a privileged but dangerous position.
No historians, of course, have been able to look inside the Jordan White House, analyze the original source materials, and illuminate the decision making that then occurred. I have no idea whether they considered other courses, whether more moderate Republicans urged caution or whether brave men and women refused to go along with the plan ultimately adopted and paid with their careers and/or their lives. All this I don’t know. What I do know is that the two weeks following Judge Chin’s decision were the only good weeks in the year 2017. During those weeks, two additional federal judges, one in Illinois and one in California, released equally favorable decisions. We were ecstatic, and once again a number of pundits began to declare The Blessing “dead on arrival,” and to predict that the House would be retaken by a non-evangelical majority the next year, and that the Jordan administration would be seen by history as one of those strange quirks of American culture that was quickly overwhelmed by the strength and soundness of America’s constitutional architecture, rule of law, and judiciary.
But instead the story took a very different turn. Two weeks to the day following Judge Chin’s decision, with no media present but F3, the chairman of the House Committee on the Judiciary tabled resolutions of impeachment against the three federal judges whose decisions against The Blessing already had been released. The minority members of the committee and staff scrambled for their phones to alert the media and their leadership. The majority counsel outlined the case in about ten minutes. Despite numerous motions and protests, the chairman called for a vote. The minority rose from their seats and walked out of the room as the chairman called the roll and obtained the required majority to report the articles of impeachment to the full House. Later that afternoon, with the minority having exhausted its parliamentary options, the articles were approved by the full House and “managers” of the impeachments appointed to present the case to the Senate.
Jim Lehrer opened his
NewsHour
that night with the report that the United States had experienced the first stages of a “constitutional coup d’état.” The Senate majority leader referred the article to a special Impeachment Trial Committee and allowed the three judges exactly one week to prepare for their trial. Since the matters in contention were of a legal and not factual nature, each trial was short, and all three proceedings had been decided by the following week. The committee recommended conviction to the full Senate. Exactly four weeks after Sanjay and I sat in the Moynihan Courthouse and listened to Judge Chin’s decision, he was convicted by the required two-thirds vote in the full Senate, whereupon he immediately and automatically forfeited his office. Impeachment convictions by the Senate are not justiciable matters, and thus no review by the Supreme Court was possible. It was done and could not be undone.
Not only was it done, but the Speaker of the House and the majority leader of the Senate appeared together and made clear that any other district or appellate judge similarly overturning The Blessing or its implementing law or regulations on purportedly constitutional grounds would suffer the same fate. The impeachable offense of which Chin and the others had been convicted was acting beyond the scope of their authority and thus having treasonously attempted to usurp power committed by the Constitution to the people and their representatives in Congress. Therefore, the congressional leaders explained, any judge doing the same would be impeached and convicted in expedited proceedings as the basic legal issue—whether or not blocking The Blessing on constitutional grounds was improper—had already been decided by the Congress. They had no interest, they said, in continuing the impeachments, and noted that in other cases impeachment had been an effective deterrent to similar errors by an overactive judiciary.
I was mortified that I had not seen this coming, and I could not forgive myself for having failed to do something proactive to preempt the impeachment strategy. After all, the far right, and the Christian right in particular, had advocated impeachment of “activist” and “liberal” judges for decades. The idea gained a significant popular following after the
Romer v. Evans
decision in 1996 (overturning a Colorado referendum conflicting with gay rights) and a similar case in California. And the idea moved from Christian blogs to mainstream Republican policy when the then-House majority whip Tom DeLay had called for impeachment of “left-leaning” federal judges.
Back in 1997, this overt threat of impeachment, intended as a deterrent, had deeply alarmed the legal establishment. Seventy-five bar association presidents and 104 law school deans wrote an open letter to House Speaker Newt Gingrich protesting “proposals to initiate impeachment proceedings against federal judges who have rendered politically unpopular decisions in cases or controversies properly before them.” The American Bar Association (ABA) set up a special commission, and in his farewell letter to the bar, ABA President N. Lee Cooper noted:
[DeLay] was clear on his reasons in seeking these judges’ impeachment. It was not corruption; it was not that the judges were involved in illegal or unethical activities; it was not that the judges committed treason, accepted bribes, committed “high crimes and misdemeanors” as required by the Constitution as grounds for impeachment. No, the reason the Majority Whip targeted these specific judges for impeachment was because he and other members of Congress disagreed with one decision rendered by each of the judges.
In response, the Christian right establishment was unrepentant and became firm in its belief that only impeachment could remove the judicial impediments to implementation of their highest priority social and cultural agenda. The Christian law schools devoted themselves to exhaustive studies of the history of impeachment. They cited seventeenth-century precedents under which usurpation of authority (through upholding constitutional challenges to popular legislation) was found to be “treasonous.” They selectively cited the Federalist Papers to establish that the Founding Fathers intended “high crimes and misdemeanors” to include “disregard of the public interest,” “affronting the will of the people,” and “seizing the role of policy-maker.” They argued that under Article III of the Constitution, a federal judge served only “during good Behaviour,” thus providing a broad alternative basis for removal. To a public unschooled in the Constitution and constitutional jurisprudence, this all seemed to have logic and common sense on its side. If the people decided in a fair referendum that no government entity in Colorado should treat gays as a “protected class,” then who but some out-of-touch elitist from the coast could think it was democracy to have an unelected judge say they were wrong?
But even with all the groundwork laid over decades by the Christian right, it is not clear to me that the Senate—even with the conservative Republicans holding the necessary two-thirds majority—would have had the courage to cross this line and impeach honest and respected federal judges had the Constitution Restoration Act not specifically provided that it was an impeachable offense for a federal court to hear any case concerning a government’s or official’s “acknowledgment of God as the sovereign source of law, liberty, or government.” No reasonable lawyer believed that considering the constitutionality of The Blessing in a case properly brought before the court constituted “treason, bribery, or other High Crimes or misdemeanors” (the standard for impeachment in Article II, Section 4 of the Constitution). But that is exactly what the Senate decided in its conviction of all three judges. That the Senate’s decision was erroneous did not matter. There was one thing that the fundamentalist lawyers got right: under the Constitution, the correctness or incorrectness of conviction by the Senate was a “political question” not subject to review by the courts. There was no appeal.