Disorder In The Courts

Setting aside for the moment the unbelievably dispiriting saga of the Supreme Court nominationof Brett Kavanaugh, which is clearly a political and cultural inflection point that will keep commentators scribbling for decades to come, it seems apparent that our entire federal system of jurisprudence is suffering from a crisis of legitimacy that is perhaps unprecedented in recent memory.  

Some of the problems are self-inflicted wounds that are the result of obvious miscarriages of justice that have wronged the innocent and released the guilty.  Some issues have arisen from moving far away from simply applying or interpreting laws and becoming super-legislators whose individual judgments supersede those of duly-elected representatives.  Other difficulties facing our federal courts are the inevitable outcome of our nation’s ever widening cultural and moral divisions—every ruling now produces an army of the disgruntled.

The law and our federal courts have, of course, always been imperfect tools in our eternal quest for justice on earth because the humans who write and apply our laws are themselves imperfect creatures who are subject to the same stupidity and shortsightedness as us all.  However, the hope was that rigorous training of both lawyers and judges in evidentiary proceedings conducted under rules established by both precedents and common sense would be sufficient to reduce the opportunities for either fear or favor to influence the rulings of our federal courts.  This has not always worked, but additional procedures for appeals are available, and a trip up the marble steps of the Supreme Court has always been the final leg of the journey for those seeking justice.  

It is important to remember that, even when the wheels of justice turned slowly, the general perception was that the federal courts were a reliable bulwark against destructive partisan passions.  Although we understood that justice was sometimes elusive, judges and the courts were still held in high regard.  Despite the sometimes reasonable perception that true justice often seemed reserved for rich, white males, Americans had a sense that the federal courts were capable of hearing the pleas of those who felt historically disenfranchised and responding—if belatedly—to their needs, and this served to burnish the reputation of our federal courts in spite of all their missteps on the path to modernity.  Consequently, generations of idealists worked to make improvements to both the operations and outcomes of our federal court system, which enabled a broader spectrum of American society to enjoy the benefits of living in a nation of laws.  If small town local justice sometimes seemed small-minded, the federal courts many times provided the necessary broad corrections that could later be applied nationally through the precedents set by their rulings.

How far away this all seems today….

Perhaps the most pressing problem now facing the federal judiciary is one for which they have only themselves to blame: Abandoning the role of arbiter and assuming the mantle of advocacy has turned judges into yet another subset of political hacks within a system rife with political hacks.  Outsized egos and a lack of respect for the dire consequences of judicial activism have pushed the federal courts further and further beyond their constitutional mandate, which is sadly understandable if you consider the foibles of human nature.  

As much fun as it might be to be a “rock star judge” who finds new and inventive ways to circumvent judicial limitations and seize the powers delegated to the legislative and executive branches of government under the Constitution, the price to pay is the destructive surrender of all-important perceptions of restraint and impartiality.  The unsurprising result has been that federal judges are now subjected to the same rough and tumble scrutiny as those who must regularly win re-election to their offices by presenting their partisan credentials to voters—welcome to the jungle, Your Honor.

As the federal courts have come more and more to both reflect and reinforce the partisan splits in our nation by seeking to circumscribe—or outright negate—the laws and regulations approved by the President and Congress, they have waded deeper and deeper into stormy political and moral waters they cannot possibly navigate without eventually drowning.  Moreover, by making their own partisan agendas ever more apparent through their frequent speeches and voluminous writings, judges serving at the federal level are discarding all remaining pretense of objectivity in favor of social engineering on a scale that would both astonish and alarm their more circumspect predecessors on the bench.  

The sadly predictable outcome is never ending sniping and frighteningly vicious confirmation hearings that are erasing whatever tattered prestige our highest level of courts still retain.

We may not at this late date be able to turn back the clock because our nation’s elite law schools have themselves become the training grounds for a radical judicial philosophy that—terrifyingly enough—believes judges are wiser stewards of our nation than those whom we elect to represent us.  The outright disrespect for our democratic processes that we today so often see manifested in the rulings of our federal courts is an insult to the genius of our nation’s political system, which is still the wonder of the world despite its human flaws.

Therefore, having founded a nation by rejecting the divine rights of kings, it might just be the case that we will renew our nation’s commitment to democracy—however maddening and messy as the will of the people might sometimes be—by opposing the “divine rights” that have been assumed by judges who believe it is their prerogative to strike down legislation, oppose the President, and impose whatever mandates they see fit upon a captive America with a single court order.  

The battle has been joined, and those on both sides of this issue clearly understand what is at stake.  Whatever the outcome might be, we can be certain that our perceptions of the federal court system and its role in relation to the other two branches of our national government are about to undergo a profound shift—and the outcome will either begin to heal or further divide our already troubled nation.

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Opinions Will Always Vary

I have been puzzling over the stark and seemingly insurmountable political differences that divide our nation these days, and I see some cause for hope—as faint as it might sometimes seem—in the current crop of more moderate candidates running for office across our nation today. Perhaps we are finally growing weary of shouts and insults as a proxy for policy discussions.  Accusing those with different views than your own of all manner of moral and intellectual failings—in the most caustic terms possible—tends to excite the excitable, but it also forestalls any opportunity for the sometimes inelegant compromises that keep the wheels of our nation going round.

There are obvious differences between the policies of our two major political parties. The clashes between the capitalists and socialists, those who favor open borders and those who do not, and the advocates of Big Government vs. fewer rules and regulations are both never ending and necessary.  The debates between diametrically opposite points of view sparks the synthesis that provides the solutions that we need to solve our problems.

However, our focus upon surface differences often ignores the morals, values, and judgments that inform our individual opinions.  Characterizing others as either “good” or “bad” based solely on the degree to which they agree or disagree with us neatly avoids the messy and occasionally maddening business of discussing the ethical, religious, and personal values that inform our decision making on a range of matters.  This failing enables the facile insults that now are the most prominent feature of our daily political and social discourse.  The shocking ease with which we demonize those whose ideas differ from our own often seems more like the rude and immature chatter in a middle school lunchroom that a discussion between reasonable adults.

Although we are often far from agreement on many issues, perhaps we also sometimes fail to understand how our differing priorities both divide us—and also have the potential to bring us together.  Think of a great many hot-button topics, and you will find the debate typically falls along familiar lines: Liberals will focus more on “rights”, and conservatives will be more preoccupied with “responsibilities”.

However, rights and responsibilities are simply two sides of the same coin because every right comes with an equal responsibility to use that right wisely and reasonably.  When we recognize this fact, we can better attempt to search for common ground regarding a variety of issues—and hopefully engage in a dialogue that will lead to less rage and more actual discussion.  Whether we are talking about issues as varied as law enforcement, housing, immigration, healthcare, education, military spending, or pension security, we can possibly have more polite and productive conversations that can lead to policy proposals that will solve problems rather than prompt yet more discord—if we remember the linkages between our rights and responsibilities.

There is also one further connection between rights and responsibilities than warrants our attention.  We have the right to disagree with others because our own values, priorities, and judgments lead us to different conclusions; however, we also have a responsibility to respect opinions and ideas that are different from our own.  We may believe what we do with all our heart and soul, but there is a very good chance that someone believes otherwise.  Their opposing ideas are not a signal that they are evil or deluded—or a ready target for our anger.  We are instead face to face with an immutable fact of life: Opinions will always vary.

We are welcome to advocate and attempt to swing others to our viewpoint through reasoned discussion and debate if both parties agree to engage, but we must resist the human urge to heedlessly denigrate—or ruthlessly attack.  We live in a big nation within a far larger world, and sometimes we are going to need to live by rules that conflict with our own because we assume certain responsibilities as members of a broader society.  We have the right to dissent, to support political candidates whose ideas align with our own—or even run for office ourselves.  However, we must always be keenly away of our responsibilities to others—and be aware that there is no “right” to be selfish, self-centered, or sneering.  This might be a tremendous disappointment to those who enjoy attacking others, but perhaps these are precisely the sort of individuals who are deserving of far less of our support and attention in the future.

Secrets and Lies

The recent arrest of a former Senate Intelligence Committee staff member—a veteran of almost 30 years in government service—on charges of lying to FBI agents investigating leaks of classified information surprised some.  However, what really churned the waters was the concurrent seizure of the phone and email records of The New York Times reporter to whom he had been allegedly leaking—but with whom he was most definitely having sex.  They don’t call Washington “The Swamp” for nothing.

This incident and so many like it speak to the inherent tension between government secrecy and a free press in a democracy.  That which government would prefer remains hidden has always been catnip for reporters, but it appears more and more the case that a symbiotic and worrisome relationship has developed between those in government and those working in the press—each seemingly tethered to fewer and fewer institutional norms or traditions.  Given that government cannot operate effectively in a glass house, both the leakers and those reporters who are anxious to disseminate secrets are playing a dangerous game that could have catastrophic consequences.

We generally find government information falls into three broad categories.  

First, we have information that can and should be made readily available to all: the cost of contracts, specific legislative and regulatory actions, court rulings, or initiatives of the Executive branch are obvious examples of information that is critical to the smooth functioning of democratic processes.  There are also categories of information that need to be carefully evaluated before they are made public; troop movements in wartime and active criminal investigations are obvious examples.  We don’t want to either compromise military operations and put lives at risk or allow crooks to escape before they can be apprehended and put on trial.

There remains, however, a third category of information that causes the most practical and ideological problems in an open and democratic society: that which cannot be revealed under any circumstances without causing perhaps irreversible harm to our nation and its people.  

The very existence of this final category of information is offensive to those who believe in absolute government transparency and deeply distrust the idea of government secrecy.  It must be acknowledged that the United States government—like every government in history—has sometimes tried to drop a veil of secrecy over information that would reveal neglect, malfeasance, or plain stupidity.  The question then arises whether revealing this information serves any public good or just causes further damage by either unnecessarily eroding public trust or politicizing what are, in the final analysis, nothing more than instances of human weakness or misjudgment.

Likely the two most famous examples of closely-held secrets revealed during the course of my own lifetime are the publication of the so-called “Pentagon Papers”, which allowed the general public to read the unvarnished political and military deliberations concerning the conduct of the Vietnam War, and the revelations surrounding President Nixon’s role in encouraging spying upon—and sabotage of—his political opponents, which led to his impeachment and resignation.  

In both of these cases the news media decided that our country and our citizens were best served by revealing the secrets and lies of our government officials.  We saw a long-term drop in our faith in government as a result—which is either healthy or harmful, depending on your point of view—but the issues at hand were clearly pertinent to both public policy and the operations of democratic government, so we needed to know the truth.  However, the facts associated with each case had far-reaching and long-term consequences for our country, so the editorial decisions to publicize this information were made only after long and careful internal deliberations concerning the complex balance between press freedom and our national interests.

That was then—and this is now.

Over the past 30-40 years journalistic standards have joined floppy disks on the scrap heap of history.  Our internet-driven 24/7 news cycle has produced a crazed bazaar of half-truths and one-sided opinions presented as facts.  As articles regarding personalities and perceptions—and snarky reactions to both—have continued to crowd out simple reporting in the quest for clickbait, any sense of proportion and decency has more and more been discarded.  Hence, “news” has devolved into just one more facet of our wacky entertainment culture rather than an enterprise where careful fact-checking and an unbiased presentation—combined with a deeply entrenched sense of reportorial responsibility—are considered normal and laudable.

Imagine, for example, if our current journalistic practices had been in place in the past.  Would the Manhattan Project, which developed the first atomic bombs during World War II, have stayed off the front pages of The Washington Post for long?  Would news websites be breathlessly reporting every twist and turn of the Cuban Missile Crisis based on leaks and the wildest unsubstantiated speculation—thereby driving our world even closer to the brink of nuclear war?  On a less elevated level, would some mistress of President Kennedy be providing a slurp by slurp account of their liaisons to 60 Minutes or The Tonight Show—perhaps while simultaneously hawking her new web store with its own line of “Presidential” lingerie for sale?

We need a responsible and inquiring press in a democracy—and many news outlets are still doing important investigative reporting that provides necessary accountability for government and government officials.  However, the disdain much of the American public feels toward journalism and journalists—which President Trump channels and amplifies for his own political purposes—is a direct outcome of the damage done by reporters who have turned themselves into partisans and provocateurs in order to advance their own careers.

There is an old saying in Washington: “Those who know don’t talk, and those who talk don’t know.”  We can add a codicil to this saying that is both a reflection of today’s reality and a warning: “and the public doesn’t know why so much talk leaves them knowing nothing at all….”

Who Gets To Vote?

The history of American democracy is also a history of our sloppy, exclusionary, and infuriating system of voting. As much as we might want to paint our elections as some sacred system designed to produce that most perfect of all unions, the plain fact of the matter is that winning candidacies boil down to a very simple and cold-hearted equation: Make certain that my supporters vote and those of my opponent don’t. All the rest is political science theory.

Not surprisingly, the methods of winning elections by controlling who votes have run the gamut from the rascally to the outright despicable. Here in my own state of Illinois, the dead have a long and storied history of rising from the grave to cast their ballots. For much of our history women were denied the vote. Long after the passage of the 15th Amendment, African-Americans had to sometimes risk their lives to enter a polling place. Gerrymandered districts have long been used by both major political parties to neutralize the votes of some while amplifying the impact of the votes of others. The limitations of our continued reliance on balky voting machines and volunteer electoral judges perhaps reached an apogee—or nadir—in 2000, when we all had a chance to learn what a “hanging chad” was, and the U.S. Supreme Court abruptly—perhaps too abruptly—ended a Presidential recount in Florida and declared a winner.

Therefore, to blithely celebrate our “free and fair” electoral system requires a least a little willful blindness at times. We cannot discuss improvements if we deny our historic failures.

However, recent discussions about expanding the franchise by permitting felons, sixteen year olds, or even illegal immigrants to vote in some elections veer into territory that goes far beyond simply improving the systems we now have. We are now asked to decide whether felony convictions should be sufficient grounds for revoking a basic right of citizenship, when sufficient maturity to vote responsibly has been attained, or whether unlawful residency should provide voting rights that have historically been restricted to citizens. These are all huge questions that have profound implications for the future of our nation.

The question of whether states should continue to restrict the rights of convicted felons to vote hinges on a very basic question: Do we believe voting to be an irrevocable right or an earned privilege? At least to this point in time we have generally restricted the rights of felons to vote while in prison. The question today is whether voting rights should be automatically restored to felons upon release or there should be additional restrictions until other conditions set by individual state legislatures are satisfied by that ex-convict.

We might also reasonably ask whether the same restrictions should apply to both violent and non-violent offenders, but this often crashes into the question of whether we are giving preferential treatment to white-collar criminals. As regards the right to vote, should we distinguish between the accountant who facilitated a real estate fraud and the purse snatcher who knocked down a little old lady during the commission of the crime? Is the integrity of our voting system more at risk from someone running a marijuana grow house or someone who was stealing cars and stripping them for parts?

Having taught high school, I know my viewpoint regarding allowing sixteen year olds to vote has been affected by my professional experience. Some liberals are, of course, thrilled with this idea in the wake of student protests in favor of more—and more confiscatory—gun control laws because younger people generally skew hard left politically, and this tendency could affect the outcome of many elections. However, although the exuberant idealism of the young can be useful counterpoint to the weary cynicism of older voters beaten down by the eternal gulf between the promises and performances of politicians, bright-eyed ideology unleavened by messy life experience can be problematic.

Anyone who remembers their youthful belief in their own infallibility—which, of course, stood in stark contrast to the blind stupidity of the oblivious adult world—has at least at once grimaced at the utter cluelessness of their younger selves. The French have a lovely aphorism, quoted and re-quoted in various permutations, that ably captures this dichotomy: “If you are not a liberal at twenty, you have no heart; if you are not a conservative at forty, you have no head.” A world run by 16 year olds might by long on energy and short on practicality—or it might resemble The Lord of The Flies. Perhaps there is something to be said for the sagacity that comes with age. In addition, the 26th Amendment to the Constitution lowered the voting age from 21 to 18 years of age in only 1971, so it is likely worth another bit of a wait before we fiddle with the voting age yet again.

The issue of granting some voting rights to undocumented immigrants is a topic of intense discussion in states such as California, Illinois, and New York. Their laws designed to protect the many who reside in those states illegally readily morph into granting this population more and more public aid and benefits of all types—so voting rights seem to some the next natural step. This is also viewed as a way to battle the entrenched “racism” of those who support stricter enforcement by helping to boost the electoral fortunes of those candidates who are friendly to the notion of a world without borders.

However, one would be hard-pressed to find a developed nation where policies that reward lawbreakers are commonplace, and it is reasonable to ask whether open borders and a modern welfare state are a potentially ruinous combination. Although it is certainly true that we are a nation of immigrants, those immigrants almost always arrived under supervision and with documentation—and rules and limitations have been crafted throughout our history to maintain a manageable flow of people into our great nation.

Of course, although our legal immigration policies have historically been quite generous, there is no doubt they have often reflected the prejudices and preconceptions of the people who crafted them. This is sad, and at times it has resulted in injustices that have affected individuals and their families, but we cannot undo the past and now must muddle along from here. Additional domestic and international issues, which are far beyond our ability to predict, will affect our immigration legislation and procedures going forward in ways we cannot imagine, so all we can do is continue to be as welcoming as our economic conditions and security considerations allow. Beyond this, the question of granting some voting rights to those who have entered the U.S. illegally will be a priority for some immigration partisans—but I strongly doubt the vast majority of Americans will endorse this idea because it fails to account for basic common sense.

There was once a time in American history when our polling places were in taverns and saloons—and a vote could be had for the price of a couple of beers. Our election procedures have obviously improved a great deal since, but much improvement is still possible—particularly as regards expanded voting opportunities and convenience.

Moreover, we can continue to improve the security and accuracy of the ballot in a variety of ways, and the increased infiltration of dazzling and powerful technology into every facet of our daily lives may someday mean that we will be saying “Siri, it’s time for me to vote for President.” on a Tuesday in early November. That would certainly increase voter participation—and reduce the opportunities for the chicanery and silliness that have marred too many of our elections in the past. In addition, it would be way, way cool.

Code of Silence

It was not a surprise to hear this, but a comment one of my students recently made in class seemed to neatly sum up our anxious and antagonistic national mood: “I really don’t like to express my opinion about anything because people just attack you for what you think.”

Yep. That pretty much nails it.

I am not one of those who believe that our major news outlets are part of some liberal cabal out to subvert America. Watching the sense of shock suffuse the faces of the pollsters and pundits on Election Night in 2016, it was obvious that the results had them completely gobsmacked. Having spent the previous couple of years in animated discussion with one another, they were convinced that anyone with a lick of intelligence thought just the way they did, and all of the national polls served to provide ironclad proof that we would be toasting President-elect Clinton’s landslide victory when the dawn broke.

One of the reasons more and more “experts” are so confused by the current state of our nation is likely that fewer and fewer Americans have any interest in serious discussions that extend beyond a small circle of close friends or immediate family. My student is absolutely correct that talk too often leads to trouble in our hyper-vigilant and hyper-sensitive environment. I sometimes feel the same way when I receive flaming ripostes regarding my blog commentaries. Principled disagreement based on values, judgment, knowledge, and experience has been relegated to the scrap heap of representative democracy. Now the focus is on “shutting down” those whose views are different from your own. Given the very high probability that your opinions will be misrepresented, misinterpreted, or mischaracterized, many now consider it a mistake to ever express what they think on a topic or issue of the day.

This problem harms our nation in three distinct—and important—ways.

First and foremost, open and fearless debate regarding the issues facing our nation is the very lifeblood of democracy. The moment that citizens start to shut up in order to avoid being “shut down” by angry partisans on either side, the possibilities for discussion leading to consensus are diminished. We may not always like what those who believe differently have to say, but we cheat ourselves and our nation if we do not listen to the doubters and dissenters who may see a problem or flaw that has been overlooked—or simply ignored—by those who are absolutely, positively certain there can be no legitimate viewpoint other than their own.

Moreover, there can be little doubt—particularly after the 2016 election—that silence produces suspicion. All those Trump voters flying beneath the radar resulted in the never ending—and never proven—narrative of Russian collusion that has poisoned our political discussions ever since. Although it is certainly true that the mainstream media chose to ignore the many signals that Hillary Clinton’s coronation was far from assured, it has also been well-documented that many Trump voters kept quiet in order to avoid the ire of family, friends, and co-workers—as well as the scorn of total strangers. In retrospect, more frank and open dialogue would have benefited everyone by perhaps diminishing the shock of Donald Trump’s victory and avoiding the creation of a thriving industry of conspiracy theorists who cling to a self-comforting and self-defeating saga of election fraud rather than doing the hard work of converting more voters to their causes.

Worst of all, any nation in which a few loud and angry voices are allowed to dominate is fertile ground for extremists of all stripes. The eye-rolling, smirks, and sneers that accompany so many of our debates today empower those who present the angriest denunciations of people whose only crime is to hold to a different belief or set of values. Moderation and accommodation is impossible when your opponents are considered twisted, evil, or deluded. Those who vilify others tend to attract a crowd, but that crowd—who are primed for the attack—readily becomes an angry mob intent on driving diversity of opinion down into the dust.

The fragmentation and fulmination of our political sphere today is frightening. Our innate human differences have now become deep and immutable divides that reduce us all to either friend or foe, which leads to yet more insularity and ignorance that will further erode our already damaged and dysfunctional civic culture. We must do better: More listening and less insulting would be a good place to start.