More Adventures In The Court Of Public Opinion

With the new charges of sexual assault now being belatedly hurled at Supreme Court nominee Brett Kavanaugh, we are sailing once more into well-charted and exceedingly choppy waters. Allegations are publicized, advocates for both parties line up to assert guilt or innocence based on both their political beliefs and “gut feelings” derived from their own life experiences, and the process quickly degenerates into name-calling and recriminations. We all know the script by now.

Neither side, in fact, has all that much interest in the truth, which is sadly sometimes elusive due to the passage of time, the unreliability of memories, or the consumption of drugs and alcohol at the time of the alleged incident. Given that definitive proof is likely lacking, the battle lines are drawn yet more sharply, the one-liners grow more caustic, and the episode becomes yet one more damaging facet of culture wars that continue to fray the fabric of our society.

It is, of course, the case that a good fight attracts a crowd. Just think back to everyone racing toward the latest punch-fest in your middle school lunchroom. Not much changes with the advent of adulthood; the fights just don’t involve actual fisticuffs. Those who are now carrying their own lifetimes of pain or a sense of injustice can now, thanks to 24/7 news coverage and social media, vicariously seek vindication—but never closure—by taking sides. Often driven by their own anger and sense of betrayal, the many voices add deafening noise—but no clarity—until the bitterness and bile on each side of the issue finally chokes off any possibility of reasonable or respectful dialogue. The accusations will instead grow wilder and more conspiratorial, and the damage to all concerned will be both deep and lasting.

A good deal of our outrage is driven by our crushing lack of faith in both our traditional social institutions and our government. Having little or no faith that justice is readily available in the public sphere, private retribution becomes the focus of our attention—and we gain whatever meager satisfaction we can from adding our own words to the toxic mix.

Moreover, given that many now identify so strongly with total strangers as an antidote to their own loneliness and social isolation, the shouts of others are an irresistible temptation for some semblance of personal engagement. We may be physically and psychologically alone, but we can gain an illusory sense of community and comradeship by sharing in the rage and frustrations of others, which is a poor substitute for personal relationships but is perhaps all that is available. We would certainly be far better off simply learning the names of our next-door neighbors or joining a softball league, but the ease of ranting through our iPhones makes the choice obvious for many.

Ironically, by seeming to make connections we facilitate the many disconnections that now afflict our nation. Angry words do not evaporate like the morning dew. They hurt actual humans, and we all know the hurt of words lingers for a very long time. The anonymity that comes with posting on social media disinhibits whatever sense of propriety regarding our interactions with others we still retain, and we are often further encouraged to savagely attack by reading the clever ripostes of others. The results are words that we would typically not say straight to the faces of our worst enemies—but which we are perfectly content to inflict on total strangers through the keypads on our handheld devices.

Perhaps we need to revisit our libel laws in order to create some consequence for those who rejoice in inflicting wounds and the online media that enable their fact-deficient—or entirely baseless—attacks. Perhaps we need to require that all online comments feature the name, address, and workplace of the senders in order to create some accountability for engaging in egregious personal insults because of differences of opinion or judgment. Perhaps we simply need to remember that our own anger or pain does not excuse defiling the ideas or reputations of others.

It has been announced that both Judge Kavanaugh and his accuser, Professor Ford, plan to publicly testify regarding the details of their high school encounter. This will solve nothing, harm many, and satisfy few—but you will be able to watch it all on CNN and immediately post your comments online.

Please carefully consider the content of what you write.


A Supreme Problem

The three co-equal branches of the United States government—executive, legislative, and judiciary—each have their roles to play in the management and mission of our nation. However, the federal judiciary and its judges, whose role current Chief Justice John Roberts famously (and perhaps disingenuously) characterized as one of simply “calling balls and strikes” regarding the matters before them, has until recently clung to an air of impartiality—but those days are now gone.

People who study the Supreme Court assert that 5-4 split decisions are no more common than they once were, but now every close or controversial decision has become another component of the partisan battles that are the background music of our hyper-politicized nation. Moreover, the celebrity, notoriety, and visibility of today’s Supreme Court justices invites speculation regarding their personal and legal agendas. Unfortunately, the near anonymity that the justices once cultivated has been replaced by a public advocacy for which those are both sides of the many issues dividing the Court and our country are equally culpable.

It would have been much better if the late Justice Antonin Scalia has been a little less fond of celebrating his own conservative viewpoints and linguistic cleverness in his speeches and writing. Justice Ruth Bader Ginsburg—the “Notorious RBG” to her fans among liberals—foolishly interjected the Supreme Court into electoral politics in 2016 by openly criticizing the candidacy of Donald Trump and joking about moving to New Zealand if he were elected.

The abandonment of the circumspect silence that was once the glory of those who served on our nation’s highest court has thrilled some advocates, but this has also served to reduce the status and credibility of this branch of our government. This disintegration of the dignity once associated with the Supreme Court is evident in the ever more contentious confirmation battles over the past couple of decades. Supreme Court nominations are now yet one more piece of raw meat for partisan attack dogs to fight and growl over—and the perceived integrity of all our judicial processes are harmed as a result.

All of this makes me wary of the upcoming fight over seating a replacement for Justice Anthony Kennedy, who announced his retirement from the Supreme Court this week. Due to his unique position as the swing vote on so many cases before the court during his thirty year tenure, his replacement will likely become the deciding factor for a great many 5-4 split decisions in the years—and perhaps decades—to come. Given what is a stake, partisan fervor regarding the confirmation of President Trump’s nominee is likely to rise to levels that will make all our other fractious arguments seem mild by comparison. The net effect of this pitched combat will be to cement the public perception of the Supreme Court as just another governmental outpost of politicized and polarizing discord, which will likely irreparably damage its already tattered status and cause it to lose more of its most precious asset—the nation’s trust.

Given the vast and often unbridgeable social, political, cultural, religious, economic, and regional divides in our nation at the present time, it is not surprising that our nation’s courts have been asked to arbitrate the fights around the table at Thanksgiving. Because so many disagreements do not easily lend themselves to compromise—a women cannot, for example, have half an abortion—and communal values have been largely replaced by assertions of unfettered individual rights heretofore unprecedented in history, judges are more and more trapped in the unenviable position of acting as the arbiters of our nation’s morals. Setting aside the basic reality that humans tend to disagree about everything, this task is made yet more thankless and impossible by the fact that significant segments of our population are openly and loudly adverse the very idea of morality, viewing it as either a vestigial annoyance or a pointless guilt trip.

Courts can—and should—mediate regarding the application of laws, but can—or should—the courts continue to mediate in ever more granular and quotidian aspects of our daily lives? The evidence would tend to suggest they should not, but our nation’s courts have, nonetheless, tried their best to solve the conundrum of differing moral and ethical values by simply granting more and more “rights” that are divorced from any notion of responsibility. The problem with this approach—which has become more and more obvious over time—is that trying to create a civil society by allowing everyone to do as they please is like trying to fix the economy by printing more money. A period of euphoric happiness follows, but an inevitable and catastrophic crash will ensue—and the problems that follow are certain to be beyond easy or painless remedy.

We now live in a rudderless nation where we are free to be as self-centered, spoiled and entitled as we want without fear of either consequence or rebuke from individuals, institutions, or government. To express even the mildest disagreements with the behavior of others is today a sure sign of hateful intolerance—which must, of course, be adjudicated through the courts. To a certain extent I suppose inventing more and more rights is wonderful new business development for lawyers and judges, but it is also guaranteed to facilitate every sort dysfunction, infuriate those who act responsibly, and destroy any sense of community and common purpose by privileging the few at the expense of the many.

Supreme Court nominations matter. The tone the Justices set for the entire judiciary matters. However, unless the rulings by all levels of the courts re-establish some balance between what individuals contribute to society and what society can reasonably provide to individuals, expect the worse.

Big Money Politics Helps Produce Political Extremism

People have been complaining about the corrupting influence of political contributions forever, and it is true that the escalating costs of running for state and national political offices have turned our elected officials into full-time fundraisers—for themselves. Given the many millions of dollars it might today cost to campaign for a Congressional or Senate seat—and setting aside the astronomical $850 million spent by the two major party candidates during the 2016 Presidential race—it is apparent that we now have a government of the rich, by the rich, and for the rich.

It is an open question just how much of the daily struggle of the average American actually gets through to candidates who are cosseted by campaign contributors handing them gobs of money. This does not become less of a problem after they are sworn into office. Upon being elected, officials immediately start to raise the dollars necessary to hold their seats, eclipsing the daily work on behalf of constituents—whose troublesome needs eat into the time that must be spent raising campaign funds.

However, the power of incumbency at least makes raising money easier because political favors now can be granted in exchange for campaign contributions, which are certainly a pernicious form of peculiarly legalized bribery. As the costs of political campaigns keep increasing, the importance of your opinion to your elected representative is ever more related to the size of your bank balance, the “pay to play” politics that disgusts most Americans. We are, sad to say, now all forced to live by the Golden Rule: “Those who have the gold make the rules.”

There is, however, another problem beyond the capture of our political institutions by wealthy individuals and interest groups—and it is helping to tear apart our nation.

Campaign fundraising used to be built around two basic appeals. On the one hand, you could attempt to appeal to the more elevated human traits of empathy or sympathy. An example of this approach might read as follows:

“Your contribution will give this puppy a warm bed tonight.”

Of course, if you really wanted to motivate potential contributors, a more crisis-laden approach was often more effective:

“Unless you contribute, this puppy will die tonight.”

If, however, you are running for political office today and need oodles of money in order to compete, a more sensationalistic and confrontational approach is preferred:


See the problem? The ongoing need for cash to keep today’s mega-million dollar campaigns afloat inevitably pushes all political discourse to the extremes because this is what best motivates contributors. Candidates can no longer afford to be gracious, reasonable, or moderate. All political opponents are now by grim necessity depicted as horrible brutes, and all opposing policy ideas are certain to result in lingering death, massive destruction, and the breakdown of civil society—because to say otherwise would not persuade anyone to write a check. Every election cycle is now Armageddon—the ultimate confrontation between good and evil—and each campaign season only further reinforces these venomous attitudes.

Big money politics have, of course, become an even worse problem over the years because of both inane Supreme Court decisions that have privileged wealthy donors and the sheer recalcitrance of officeholders who love the fundraising opportunities of incumbency and are allergic to reforms. However, reform we must if we are to have any hope of rescuing our nation from extremist politics and speech because campaign cash does more than just buy influence: It is itself a major driver of the political extremism that is both stalling our political processes and sidetracking legitimate national needs—all the while turning neighbors into enemies. Unless we can find a way to reduce the extraordinary costs now associated with political campaigns, we are likely condemned to yet more divisive and damaging political speech that will continue to hollow out the shrinking center of our national dialogue.

Is President Trump “Gaslighting” The Democrats?

The Democrats have stuck to a single, overriding narrative since Donald Trump’s stunning election last November: This man is crazy. I am beginning to suspect that this viewpoint might be missing by a mile—he could, in fact, be crazy like a fox.

“Gaslighting” is a slang term derived from the famous 1944 film starring Ingrid Bergman and Charles Boyer, and its various definitions boil down to this: Engaging in actions designed to drive someone insane through misdirection or intimidation. As unseemly as it was to the political class who considered him an oafish outsider with no chance of winning, Donald Trump proved to be a master of manipulation during the primary and general election campaigns, driving his opponents to the heights of exasperation with derisive nicknames (“Little Marco” and “Crooked Hillary” spring immediately to mind), inflammatory Tweets, and barbed responses designed to needle his opponents to the point where they became rattled and lost focus. We saw this strategy work again and again during both the Republican and Presidential debates. Few seemed to notice the method beneath Trump’s seeming madness—all the while assuring themselves he had no chance of winning—and were shocked when he vaulted over the aghast political establishment and won the Presidency.

Not much has changed since Donald Trump took his place in the Oval Office. In fact, both Republicans and Democrats have often been confused and unamused because President Trump has seemed to go out of his way to pick fights where conflict could easily have been avoided. Very often these fights were over relatively inconsequential matters, the size of his crowd at the Inauguration being a perfect example. Many Executive Orders, such as Trump’s attempts to restrict immigration from mostly Muslim countries, were typically seen as red meat thrown to his slobbering base of “Deplorables”, and immediately provoked a race to the courthouse by his opponents to seek restraining orders, which were promptly and repeatedly granted. Trump’s efforts to “repeal and replace” Obamacare have also proved a slog that still has many difficult and rocky challenges ahead—with no guarantee of victory. Every time Trump has been proved wrong or stopped in his tracks, the Progressive Left has chortled knowingly—certain of their ultimate victory over this buffoonish upstart.

However, I am beginning to wonder if we are seeing the greatest long game in recent Presidential history unfold before our very eyes.

First off, President Trump’s words, actions, and demeanor have served to transform the loyal opposition into the unhinged opposition. The shouting and foot stomping of the self-styled “Resistance” have only served to marginalize the Social Justice Warriors, and many on the Left have become so incensed that they have abandoned all nuance or objectivity when proclaiming their undying opposition to Donald Trump and the very air he breathes.

Engaging in continuing venomous attacks on anyone who might appear to be the least supportive of a position taken by Mr. Trump wins very few new allies, and completely abandoning any pretense of conversation and compromise has likely further weakened the Democrats. For example, recent Democratic rants about purging the party of pro-lifers, which some polls indicate comprise fully 25% of the party’s supporters, is a fantastically self-destructive exercise that only makes sense to those who have lost any ability to respect differing opinions. Vindictive rage is never going to help anyone make new friends or influence people, and the fact that not everyone seems to share their seething anger has prompted many progressive Democrats to hurl yet more inflammatory accusations at the average American regarding their ingrained racism, xenophobia, misogyny, and overall awfulness. Seems like a pretty dumb way to win over hearts and minds—so score one for Mr. Trump when the 2018 midterm elections come around.

In addition, it is only now becoming apparent to many that, off the radar and with little fanfare, President Trump has been reviewing, vetting, and prepping a huge slate of nominees for federal judgeships.

How big of a deal is this? Really big, I would say. During his entire 8 years in office, President Obama put roughly 329 judges on the federal bench; at this moment, only a few months into his term, President Trump already has over 120 vacant seats to fill. In four—or perhaps eight—years Donald Trump could put a conservative stamp on the federal courts that could last for the next forty or so years. Add to this the likelihood that Trump will likely nominate at least two more Supreme Court Justices, and it quickly becomes blindingly clear that while so many were marching around the nation wearing silly hats and chanting about “crazy Donald”, he was quietly laying the foundations of a judicial revolution. I am not entirely certain how this will play out in the long run, but President Trump is quickly transforming the political DNA of America. Although his vociferous political opponents will insist that this transformation is more akin to a cancerous mutation, our entire national conversation has shifted in a startlingly short period of time.

Which brings us to the recent firing of F.B.I. Director James Comey.

We are very much in the “too soon to know” phase of whether this is simply bare-knuckled Washington politics or something more nefarious, but one need only read the Chicken Little commentaries in The New York Times, Washington Post, and Salon—or listen to the apocalyptic press conferences on Capitol Hill—to know that President Trump has once more driven his political opponents to dizzying heights of indignation. What, of course, is yet more frustrating for the Democrats is that they have been yowling for Comey’s scalp for months because he “threw” the Presidential election to Trump with his somewhat bizarre investigative techniques surrounding Hillary Clinton’s email scandal—so the Democrats end up seeming to disagree simply to disagree. It must be maddening to now be defending the very man whom you believe cost your party the White House, and this seems to me to be yet one more example of President Trump driving his opponents stark raving mad with his actions.

If they keep on in this manner—the Democrats huffing and puffing and trying to blow down President Trump—the symbol of the Democratic Party might soon need to change from a donkey to a straitjacket. It is impossible to maintain this fever pitch of rage for long before average Americans will begin to start tuning out the overwrought rhetoric and getting on with their daily lives. Unless Trump’s political opponents can very soon find some scandalous fire to justify all their enraged smoke, the Republican Party—with Donald Trump in the lead—is going to roll right over the exhausted and disheartened Democrats in 2018.

Gaslighting, indeed….