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.

The Fluid “Truths” Of Statistics

Over the past half century we have, as I have pointed out before, increasingly turned over the management of our nation to credentialed experts. These experts direct virtually every aspect of our lives based on jargon-filled studies and massive data sets, which purport to show that all their recommendations and actions are in our best interests. To question their judgments is to question logic and reason itself—and will earn you a whomp on the head with the latest edition of The Journal of Unquestionable Truths.

However, as statisticians have known for a very long time, the problem with data is that it can be readily manipulated—and deceptively compiled, selectively presented, or entirely ignored—to “prove” whatever you might wish. This numerical black magic is a boon to politicians who need to either direct attention away from their own job performances or whoop up anger to win votes.

One well-worn way to conceal the truth is to use methods of measurement that define the problem away. The official U.S. unemployment rate is a fine example of this chicanery. In order to be considered unemployed, you must have actively sought employment—that is, applied for a job—during the previous four weeks, which does a wonderful job eliminating discouraged workers and those for whom no suitable job openings are presently available. Moreover, you are no longer considered unemployed if you work a single hour—yes, one hour!—during an entire week. Very few people can purchase food, clothing, shelter, and healthcare with just one hour of pay, so this seems like the cruelest gaming of the numbers imaginable.

It has been variously estimated that the actual unemployment rate would double—or even triple—if a more honest accounting of those driven out of the job market or unable to secure full-time work were used, but I would not hold my breath waiting for this day to come. Comforting half-truths boost the reelections of many incumbents and must be maintained.

Another handy trick for misleading the public is to present data without context in order to support a narrative that would be contradicted were the full story actually to be told. Given the national attention now being paid to the issue of fatal police shootings of African-Americans—which is a matter that should always be of the keenest possible concern—one would hope politicians would focus upon sober facts in order to avoid inflaming public opinion and causing unnecessary fear of the police, but this is unfortunately not always the case.

Most would probably be amazed that during 2017, the last full year for which statistics are available, less than 1000 people were killed by the police in the United States. Roughly a quarter of these cases involved civilians who were mentally ill, in only 7% of these cases was the person who was shot unarmed, almost a third were fleeing the police—and roughly twice as many whites as blacks were killed by the police that year. It must also must be noted, were one interested in facts, that 135 police officers died from duty-related causes during this same year.

Although the circumstances surrounding the deaths of the small subset of unarmed African-Americans killed by the police must be carefully reviewed for signs of incompetence, bias, or malfeasance—and the officers involved punished if this is the case—we should not be routinely and loudly characterizing police officers as wanton murderers and racists. The facts do not support these assertions. As is often the case, the truth is much more complex and frustrating, and simplistic and dubious mischaracterizations interfere with the core mission of law enforcement, which is to apprehend the accused and protect the public from criminals.

A final way to fudge statistics is both simple and startling: ignore them altogether. We see this method most visibly used when it comes to reporting on the academic outcomes of our nation’s K-12 public schools and the students who attend them. Even though voluminous data on academic progress and college/career readiness is readily available across the nation—and helpfully broken down by individual schools and school districts—think carefully about the coverage you see on a daily basis about the public schools in your area. Most of the stories focus upon charming human interest topics such as high school athletes triumphing over adversity, trips to petting zoos and museums, sweet middle school students raising money for charity, teachers attending conferences, principals engaging in goofy stunts to raise school spirit, or retirees reminiscing about their careers.

One would be hard-pressed to ascertain from the occasional dribble of actual data provided by the media that American public education performs very poorly overall—and at far greater expense—compared to other nations, American college students continue to flunk out at astonishing rates due to weak K-12 academic preparation, and public school teachers are abandoning the profession in droves due to problems with disrespect, threats, and violence from both students and their parents. Education reporting seems to have, in many cases, abandoned actual investigation and inquiry in favor of rewriting glowing press releases because criticizing public schools risks offending powerful constituencies that include local businesses, construction companies, real estate agents, and neighborhood organizations—all of whom have a stake in the illusion of successful local schools for reasons both personal and financial.

Numbers do matter, and we ignore troubling trends and ongoing problems at our own peril. The peculiar lack of national coverage concerning our mounting and terrifying public sector budget deficits and debts is a fine example of a looming and significant problem that is largely absent from our 24/7 news cycles. As much as we enjoy our daily diets of scandal, silliness, and celebrity gossip, perhaps—just as the regular consumption of sugary sweets eventually rots the teeth—the consumption of “news” that provides no complete or reliable data to support its dishonest assertions and wild accusations is contributing mightily to our horrifying and destructive civic rot.

How To Shrink Government—For Real

When I first started working in the advertising business in New York City many years ago, one of my senior colleagues told me the following joke—both to make me laugh and provide me with a little insight into reality….

 Starting his first day at a new job, a man ran into his predecessor cleaning out his desk, who gestured to the top right hand drawer.

 “I hear you’re taking over from me.  This is a pretty demanding position, so there’s a little tradition we keep up here.  I’ve put three sealed and numbered envelopes in this drawer.  When you hit your first crisis with our boss, open envelope number one.  When the second crisis strikes, open number two.  When you and our boss have your third falling out, open the third envelope.”  

 Smiling at the seeming absurdity of the three envelopes, the man said goodbye to his predecessor and started his new job.

 However, one terrible morning several months later, after his boss had chewed him out for not meeting his performance goals, the man went back to his desk and—his hands shaking—opened the first envelope and read the note: “Blame your predecessor.”  After lunch he went in and explained to his boss what a mess his department was in when he took over the position. It worked.  Mollified by the explanation, his boss sent him back to his desk without further comment.

 A couple of months later his boss was on the rampage again, demanding to know when improved results were forthcoming.  After anxiously reaching into his desk, the man pulled out the second envelope and read the advice: “Announce a reorganization.”  Racing into his boss’s office, the man explained that he was changing around the responsibilities of the people in his department in order to increase productivity.  A bit disbelieving but still satisfied by this plan, his boss sent the man on his way.

 Unfortunately, as yet more months passed, no improvements were apparent.  Frothing with rage, the boss told his underling to be in his office the next morning with a new strategy to finally turn around his department.  Remembering how the first two envelopes had saved him, the man raced back his desk and frantically tore open the third envelope.  

 Inside he found a note that read as follows: “Prepare three envelopes….”

 A good deal of private sector work tracks right along with the three envelopes.  Managers and supervisors have, from time immemorial, followed exactly this arc to keep those above them happy—at least for a while.  Government bureaucracies—and the bureaucrats and elected officials that run them—are likewise prone to either blame their predecessors or announce a reorganization when problems become too obvious to ignore.

 However, those who survive in government jobs become experts at one particular “skill” above all others: keeping their heads down and asking no questions.  Consequently, we employ millions of men and women who will—from the day they start work until the day they retire—plod placidly along while paying little heed to either the utility of their work or its societal outcomes.  The consequence is an ever growing chasm between the costs of government and the actual benefits that are provided to our nation.  

 If you’ve ever wondered why we spend our lives paying taxes for schools that don’t educate, roads filled with potholes, and various departments and agencies that seem to have no discernible or logical function, you are asking the right questions—but you are wrong in believing improvements are possible.  Absent the private sector accountability provided by the need to both produce measurable results and turn a profit, it will always be the predisposition of government to cost more and provide less over time.  Although there are many who believe—believe with all their hearts and souls in many cases—that those who want to reduce the size of government are heartless haters who are putting our lives and the future of our nation at risk, the catastrophic rise of both daily government expense and government indebtedness compels those with the least smidgen of sanity to question our current direction—and seek change.

 Obviously, we need government, and there are basic responsibilities that government is best suited to fulfill.  National defense, local law enforcement, health and safety regulations, and maintenance of the infrastructure and the regulatory framework necessary for interstate and international commerce are clearly the purview of government managed by elected officials.  Protection of our environment is also necessary to help ensure the health and welfare of our citizens.  A free, taxpayer-supported system of primary and secondary education—whether provided by public or charter schools—must certainly be in place to put each generation in a position for future success.

 However, the accountability necessary for well-managed government programs is impeded by the sheer immortality of government agencies and departments—that which is once funded never goes away.  Much like that famous fictional Count from Transylvania, government agencies and departments live forever, sucking the life blood of the citizenry and striking fear into the hearts of all who dare defy them.  Elected and appointed officials, although nominally in control, rarely have the staying power to do much to rein in their inexorable growth.

 Government is, at least in theory, the servant of the people, so the solution might be to let the people decide—directly.  

 Therefore, we should consider allowing the appropriations for every government agency and department—except for a very select few deemed absolutely vital to our nation—to “sunset” every ten years.  In order to continue operations, they would need to be voted back into existence by our citizens—not a handful of legislators who have been purchased through campaign contributions.  During the ten year cycle, appropriations and oversight would be left to elected officials and appointees, but thereafter a plebiscite of the citizenry—local, state, or national, depending on the department or agency or question—would decide whether to allow it to continue to function.  There would, of course, be a brief winding down period if programs were closed so that the enforcement responsibility for regulations promulgated could be smoothly transferred, but this would be manageable—and of limited duration and cost compared to the eternal life and expense prior.

 There will, quite naturally, be those who for a variety of reasons would vociferously oppose such an idea.  The status quo always has its fans—particularly when there is (as is always the case with government) jobs and money involved.  Nonetheless, unless we want to continue to spin on as we are until every last penny is gone from our pockets—and the pockets of our children and grandchildren—we must take affirmative and direct control over the mechanisms of our government.

 If not, we will soon be preparing our own “third envelope” for our nation and its future.  This is an outcome we dare not allow to occur.

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.