OPINION: Sen. Lisa Murkowski, a profile in courage

In 1957, then-Sen. John F. Kennedy wrote “Profiles in Courage.” The future president studied courageous decisions by senators at critical times in our nation’s history. He chose times and circumstances when political courage was in short supply because of partisan division. Kennedy defined courage as a person doing “what he must — in spite of personal consequences, in spite of obstacles and dangers, and pressures.” In short, putting one’s conscience and solemn oath to support and defend the Constitution ahead of personal risk, and the pressure to conform for party loyalty.

Sen. Lisa Murkowski has demonstrated political courage at critical moments. She opposed the nomination of Brett Kavanaugh to the Supreme Court. She studied the record and met with Kavanaugh for hours. She saw through the sham that the nominee would follow precedent and concluded that Kavanaugh would be a vote to overrule Roe v. Wade. She explained her vote: “I take this obligation that we have in the role of advice and consent as seriously as anything I am obligated or privileged to be able to vote on.” In the second Trump impeachment trial over the failed Jan. 6 coup to retain power by force of a mob, she voted for impeachment. As a juror in the impeachment proceedings, she took an oath to “listen to each side impartially, review all the facts, and then decide how I would vote.” She stood up to enormous pressure to vote for impeachment. She told the Juneau Empire in February of 2021 that if the people of Alaska decide that “because I did not support my party that I can no longer serve them in the United States Senate, then so be it.” “My obligation is to support the Constitution that I have pledged to uphold.” The Alaska Republican Party later censured her for the vote. Sen. Murkowski was scorned by Laura Ingram on Fox News.

Sen. Murkowski is no stranger to political courage. She will need, and no doubt will muster, that courage again in considering President Trump’s cabinet nominations. Fundamentally, the Constitution is about power. The Constitution divides power between three branches of government and places limits on the exercise of power by each branch. Article II of the Constitution vests executive power, including the authority to appoint cabinet and other executive branch officers, in the president. But in Article II, Section 2, the Constitution puts limits on the president’s power of appointment and conditions that power on the requirement to obtain “the advice and consent of the Senate.” A president is not entitled to his team with no questions asked. The Senate has a constitutional duty to investigate nominees’ qualifications, competence, experience, character and values.

Trump has proposed nominees for cabinet posts that have one primary qualification: loyalty. Absolute loyalty to carry out his orders is required. Trump expects nominees to protect his personal and official self-interests over the interests of the country.

In nominating Rep. Matt Gaetz, Trump sought an attorney general who would treat him as above the law, who agreed with Trump that he is the law. Loyalty to the president is valued over fitness for office. While Gaetz has withdrawn, it is hard to imagine someone less qualified to uphold the rule of law. The rule of law protects fair market competition, the free exchange of opinions in the marketplace of ideas, and the individual liberties of free speech, religion, equal treatment and due process. Without the rule of law, we are left with corruption and violent conflict. There were serious and substantial questions whether Gaetz’s life showed respect for the rule of law. He lacked any meaningful experience to perform the duties of the attorney general.

While Gaetz was under consideration, Trump-allied senators announced their support for him without asking a single question or reviewing FBI files on Gaetz. A partisan rubber stamp of approval of Trump’s nominees would cede the Senate’s power over appointments to the president. Such an abdication of power offends the constitutional balance of power by shifting unchecked power to the president. Senators have a constitutional duty to ask Trump’s nominees questions and to investigate their qualifications.

Sen. Murkowski is one senator who can be counted on to take seriously the Senate’s power to provide “advice and consent” on Trump’s nominees. As the senator did in the Kavanaugh nomination process, she will ask tough questions to determine if the nominee is the right person for the job. She will stand up to partisan pressure and insist on the necessary due diligence for the attorney general, Secretary of Defense, the director of the National Intelligence Agency, and others.

Trump has demonstrated, on repeated occasions, fundamental disrespect for the law. All the publicly available information about the Jan. 6 coup and top-secret documents cases demonstrates Trump’s disregard for the law. Those two criminal cases were not dismissed because Trump is innocent. Given Trump’s record, we can expect that, as president, it will not take long before Trump issues a clearly illegal or unconstitutional order. Each nominee should be asked two questions. First, what will you do if the president gives you an order that is a clear violation of the law or Constitution? Second, will you carry out such an order knowing that it clearly violates the law or the Constitution to prove your loyalty to the president?

Sen. Murkowski will have the courage to ask these two questions and more. She has the courage to disregard the political fallout of tough questions. It’s the same courage she has shown fighting for Alaska over her career. Alaska is lucky to have her as our senior U.S. senator. So is the country.

Howard S. Trickey has worked for more than 40 years as a trial and appellate lawyer. He has represented diverse clientele, such as Alaska Native corporations, mining companies, Fortune 500 companies, privately-owned companies and public entities.

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