A Stain on our Democracy? I'd have to agree

Like millions of others this past week, I watched the second part of the Supreme Court confirmation hearing of Bret Kavanaugh. As I have said a googolplex times here, this isn't Wikipedia, and I will presume you know who he is and what has happened, or this will make little sense to you. If you know, no doubt you have made your own judgments, have your own biases and thoughts as I have mine, and will see it through your own lens. This is true whether you watched or know a little or a lot. Feel free to email me to comment, as I believe you will not be allowed to comment anonymously through blogger, and no one seems to want to leave a comment with their email address, which I guess I understand, given the dangers of the digital world.

The following is mostly a fantasy. It is the statement I wish Brett Kavanaugh could have given the day of his testimony (not the original testimony; I mean the one after Prof. Ford testified). I have hindsight in my favor, of course, and many conversations with many people over the last week, before and after the hearing. I've repeated a finding of mine, anecdotal, unsurprising, based on a very small personal and informal survey, but I still think powerful. During the day of his hearing, I spoke to 14 people, and including myself, 15 all told. This included friends, relatives and acquaintances. But, I knew who everyone liked and disliked politically and voted for (or not) in 2016. I also learned that day where they stood on Kavanaugh. Here was the interesting result. Five of those people either "hate" Trump, some virulently or at least dislike him and/or voted for Clinton. Every one of them thought Kavanaugh came off poorly, and that he was either too partisan or had a bad temperament, even if he were provoked, which did not justify his behavior. Five other love Trump. They all thought Kavanaugh did fine and that it was natural that he was furious at being called a molester, even a rapist, a serial rapist and even a serial rapist who drugged his victims. The last group was also five people, including myself, were people who don't like Trump or Hillary Clinton and/or didn't vote for either in the 2016 election. All of us five felt just like the Trump people did about Kavanaugh. By the way, of all those people there were only four women, though, of course, it would have been better if there were more. But, none of it was planned so it was what it was. Three of the women were Trump supporters and the other one didn't vote for either.

Yes, small sample size, and unscientific as can be. But, the results were hardly surprising to me. Although, the last group might not be the same in different geographic areas or bubbles like academia or certain workplaces, etc.  I live in middle class, white, middle-aged suburbia and that's who I was mostly speaking with. We tend to have similar opinions. Almost all of the people I spoke with who disliked Trump were on the telephone.

In any event, getting past my survey or whatever you want to call it, in the end, I have to agree with Kavanaugh. I did find it a national disgrace. We are reaping the whirlwind. I am saddened, really distressed, not only by the behavior of D Senators, who I thought behaved abominably (actually, worse at his first hearing) but also by the R Senators who out of fear of being called misogynist in the meeto! era abdicated any responsibility to defend a R nominee being assaulted by the other side, so that he was literally all on his own. I cannot imagine the Ds would have done that. But, the Rs also failed to own up to any responsibility for the anger that has arisen on the left because of their side's refusal to even consider Garland. Then again, the media would have been all over them if one of them so much as asked her a tough question. Perhaps I will try to show how to do that gently here too? It's really not so hard. I've had witnesses who had sympathetic stories and tried to bait me as an attorney into being too tough with them in front of the jury or arbitrators. I was able to avoid it without much difficulty. Also, that so many people decided that this man, who seemed beloved by so many others (everyone has people who do not like them), including co-workers, clerks, his children's friends and their family's, and so on, was "evil" or "hiding something."

But, I will leave the rest for the opening statement I wrote for him, which I will give forthwith. It is easier for me to write it a little more dispassionately than him for three very important reasons: One, no one threatened my family. Two, no one called me a rapist, never mind a serial rapist. And, three, I have the benefit of time and hindsight. I will not include even his better lines, such as his daughter's inclusion of the professor in her prayers. Because really, this is not his, but mine, though put into his person (we start with prayer - I don't pray). I'm just using his situation to say what given that hindsight, and experience, I think would have been most effective.

"Chairman Grassley, Ranking Member Feinstein and Members of the Committee,

 You may not be surprised to know over the course of the past 11 days when I learned that Professor Ford claimed that I had assaulted her when we were teenagers, that I have prayed much. I have prayed alone. I have prayed with my wife and with my priest and my children. Whether it sounds farfetched to this committee or not, this committee has been in my prayers as well as anyone who truthfully believes I have done them harm. I was stunned, horrified, felt victimized, although not alone.

At the same time, I am a man, and I am subject to vanity, subject to pride, subject to anger. I know that if I came in here and stoically answered questions as if this was a walk in the park, it would probably be better for me. It would not make any difference to those who decided from before my nomination was announced that they were voting "no," or when it was announced that they were voting "no," or those who have determined that I was "evil," yes, "evil," in case anyone missed it. But, I have not been accused of being out of touch with proper behavior or social norms or that I "don't get it." I have been called one of the most heinous things you can call a man - a rapist. More, I have been called a serial rapist. And that is not even the worst of it. For those of you who run for office. These are not, as you say, Senator Klobuchar, normal times, though perhaps I think for different reasons than you. I have not in politics for a long time and my reasons are not partisan. I am concerned with civil order. And when I see a breakdown of civil order, public functions disrupted, violence and intimidation replacing argument and persuasion, then I think these are not normal times. And because these are not normal times, when a seat for the highest court in the land comes up, and it is contested not just by vetting the justice who is nominated, but by calling him evil, suggesting that he will cause pain and terror throughout the land, suggesting he is a pawn who rapes women and laughs triumphantly at their pain, well, it might result as it did result, with a death threat to the nominee's wife. I'd like you to think about that for a moment, because each of you, because each of you who has participated in castigating my good name, and I had nothing but a good name after 6 thorough FBI investigations, is responsible for a death threat to my wife. Maybe some of you have gotten death threats. Maybe you do not take them seriously. I do. And if my wife's life is threatened, who do you think she is frequently in the company of? What do you think that means to friends and family?

Perhaps you earnestly believe if you lose an election you have this right, not just to fight hard to try and persuade the other side and the public that you are right, but also to try to destroy men and women's lives if they are nominated for office by the "other side."

I know I am not the first one, And I know other people have dealt with far worse. Far worse. People have died in the name of freedom, been maimed in the name of freedom, seen their children sacrificed. And, of course, in doing this, someone in this process, and it can only be someone on one of the political staffs if not Ms. Ford's own lawyers, released her own name to the press and caused such distress to her life. Of course, she may not want my sympathy, feels it is false even, because she believes I molested her and am simply trying to appear sympathetic. But, I know I did not. So, I cannot help but give it, though it is mixed with wonder, of course.

I have listened patiently to your questions, the insinuations by you that I am supposed to tell President Trump what to do about the FBI, that I am hiding things, that I am a racist, that even before Prof. Ford's name came out I was complicit in harassment because I once clerked for a justice who was found to have harassed women. And I know I will hear all these again without apology or even acknowledgment that another Senator raised it 5 minutes ago. I know this because I was an attorney and I am a judge and I understand that this is part of strategy. But, all attorneys, all politicians, all humans should have limits, should have some basic decency.

I listened carefully to Professor Ford this morning. I do not remember her, for which I mean no offense but do not apologize. It is a long time ago and we meet a lot of people. I'm sure my words will be searched and no matter what I say, someone will find a way to interpret it so that I might have secretly, for some unknown reason left a loophole to mean that yes I did molest her or someone else. But, I will do the best I can so that at least people without an ax to grind will understand. I believe her when she says we met. I believe her that someone molested her at some time, although she cannot remember when or even what year. I understand the trauma of women getting molested and the effect it can have on them. But, I have never molested or forced myself on her or any other woman, period. I have never had non-consensual sex or unlawfully exposed myself to anyone. I have never taunted a woman. I have never tried to take a woman's clothes off against her will. At the time Professor Ford describes me, I was a virgin. I did not have sexual experiences with anyone except perhaps very few chaste kisses, which I do not choose to discuss.

I will do my best to answer your questions as dispassionately as I can, but I may fail. I'm sure I will hear that I will. I'm sure I will be told, no matter how I do, that I was intemperate, lack judicial temperament and am, as I said, evil. But, we have heard that already before this new material even came up. We heard that before I was even named and was only an X to be filled in.  But, I will continue to be honest beyond what is in my best interests. There is a large part of me that does not want to be stoic, that wants to let my anger out at not only the gross insult to me far beyond what anyone should have to absorb in accepting a nomination. It has been suggested to me by normally civil people that I use a certain declaration containing a swear word with you, that I trade insult for insult, because no nominee has ever been so insulted before this committee before, not even Clarence Thomas.

I'm not going to do it. But, I understand why they want me to and I believe a lot of people would not only understand why I did it, but might even stand up in their living rooms and applaud. And some of those people, would have been witnesses before Congress. As you said, Senator, these are not normal times.

I understand the politics of it but have to stay out of it. If you ask me about the president, I will recite to you from a prepared statement once. I understand you do not like him. I can't comment. After that, I will just ask you if you want me to recite the prepared statement. I understand about Justice Garland, who is a personal hero of mine, who I stood up for, but if you ask me about him, I cannot comment on it, and I will just read a prepared statement the first time. After that, I will just read it again if you want me to. Along with Roe v. Wade, which I do not expect questions about today, that's really what this is all about, and I think that's what most people in this country know and expect. But, that has nothing to do with me and it's not something that should have anything to do with me.

If you ask me about the FBI I will read from a prepared statement once. I understand you would like them to investigate, but I can't comment on it. After that, I will just ask you if you would like me to recite the prepared statement.

I do understand that this type of politics has been going on for a long time, much longer than anyone here has been alive. But, we've come so far in so many ways. Just not in this way. I found this quote from John Adams from a letter to Thomas Jefferson. By the way, that was era where the two sides routinely said horrible things about each other too. In any event, this was later in their lives and they were out of government, and had patched up their differences:

"While all other Sciences have advanced, that of Government is at a stand; little better understood; little better practiced now then 3 or 4 thousand Years ago. What is the Reason? I say Parties and Factions will not suffer, or permit Improvements to be made."

There's more, but I thought that was the most applicable part. We can see planets surrounding other stars and send robots through veins to cure diseases, but when another party takes power, we still try to destroy the lives of the people. It is practiced no better now than when the forefathers lived.

So, shut up, right? It is a seat on the Supreme Court. Death threats to your family, never getting to teach again because probably some of the students, egged on, will now call you a rapist or disrupt the class, perhaps never coaching again because protesters might show up at the game and endanger the children, hiring security guards for my children, these are the penalties I should have to expect, because I was nominated by a president you don't like. So, it's my problem, right.

You do have a duty, of course, to investigate the claim. It could have been handled confidentially with Chairmen Grassley two months ago and it would have then been discovered that none of the other people allegedly involved, including Prof. Ford's friend have any memory or knowledge of it, that there is no date or year for it, no evidence whatsoever of it. I am not making light of her feelings or pain. I am talking about reality. It did not need to be this for her sake or mine. It did not need to be this for the sake of the country. As to the other claims, all I can say is, are you serious? Is this where we are at? A woman can claim she went to ten parties where I was involved with the gang rapes of women, where no one called the police, where there is no evidence of it, and we are to take it seriously? What claim is so far-fetched that we do not take it seriously? Must it involve space aliens? I wish, I wish, I wish I was not jesting.

As I said before and might say again in answering your questions, Professor Ford sounds credible and I believe she is sincere, I know for a fact that she is wrong because I would never, even as a young man who sometimes drank too much, do such a thing. I was surprised, I have to admit, that no one asked her, a professional psychologist, if people in general, witnesses after even 24 hours, trauma victims ever have false memories. I think it is fairly well known, and one doesn't even have to be a trained psychologist to know it. But, there are books on the market and people giving talks about the certainty they had in accusing someone of rape, only to years later realize that - they were wrong. I admit, I wish someone else had brought that up, but, it looks like, I will have to.

I will take a deep breath now and submit to your questions. Forgive me if I am not the model of stoicism today, although I will try to re-achieve that level. Try to imagine that someone has accused you of one of the most heinous crimes we know of in front of the whole world and that you were worried someone was hunting your spouse or family and perhaps you will understand.

I will take your questions now."

That's my Kavanaugh statement. Of course, he had all that stuff about his dad and his calendar, some of which worked, some of which was booooorrrrrinng.

And, his petulance with some of his questioners, particularly Klobuchar, who is generally well-liked, and not as did not play well with anyone who did not want him to be confirmed in the first place, and did play well with those who thought the Ds were off the charts obnoxious when they first addressed him. But, other than the narrow band of Fox, talk radio and a few other media outlets, the overwhelming television and print coverage is anti-Trump (too well established to argue - see the Harvard study) and anti-Kavanaugh.

Even after it is over, it wasn't over. We had to listen to another round of dreadful speeches from everyone. I was even surprised at Lindsey Graham, who was outraged, purple with rage while Kavanaugh was being questioned, but calmed down the next day to say much the same thing, and defended his own policy again of voting for D nominees and treating them with dignity, even though he disagrees with him. I will give him a B-, not an A. Here's why. First, he's delusional to say they did the right thing with Garland. Yes, it was legal, but it so violated the trust the two parties must have with one another, that it has fueled this anger (and, yes, I'm perfectly aware that pretty much all of the the leading Ds had earlier said that they thought the rule should be no appointments in a presidential election year when it suited them - but that was insane too). If the Ds get the Senate there will be no more Trump higher offices filled until Justice Garland is seated on the Supreme Court, period, and we will see about after. Of course, he won't do that, so . . . .

Second, Graham does vote for the D nominees. And he does not sneer at them from across the floor. Nor do the other R committee members (at least since Sessions is gone). They were not as obnoxious as Whitehouse, Blumenthal, Hirono, Leahy and Durbin were, at least, with Kavanaugh and Korsuch, but they were smarmy and tried to be a little tricky, at least with Sotomayor and Kagan. I grimaced a little, but they were still respectful. Jeff Sessions questioning Kagan over her gun position while Dean at Harvard Law was probably the hottest exchange - he did look like he wanted to smite her. But, Sessions wasn't calling her a monster. He was just calling her out as being a liberal secretly against guns. And, in my opinion, she got the better of the exchange (as the justices usually do), because he was being paranoid. Compare that to the way to aforenamed D Senators treated Kavanaugh even before the Ford accusation came out - "Evil."

The problem is, a quarter to half the country is happy to agree that Kavanaugh is a monster, or at the very least, his being nominated by the Trump is enough to justify the destruction of his personal happiness, and his family's with it.  A friend of mine I was speaking to yesterday, who is unable to discuss anything about Trump without becoming enraged and quickly hanging up (he once, at his house, told me he was leaving the room if we didn't stop talking about Trump - meaning, he could, I couldn't - and I don't even like Trump), told me he trusts his judgment and he could tell from the first second that he saw Kavanaugh, he's an evil guy, part of the whole conspiracy to take the United States down and use it for the profit of just a few people. Yeesh. But, that's the Sanders-Warren-Democratic Socialist message, isn't it? Not really Clinton's, but, could she even run now if she didn't adopt it? I think she would soon get the Jim Webb treatment if she ran in 2020, unless she completely caved, kowtowing to the new generation. If she didn't, they'd yank her mike, and I don't mean figuratively. Cuomo found he had to say "America was never great" when he ran against a no borders, no Ice opponent, and he was initially a fairly moderate, actually conservative D.

A number of the Ds on the committee, friends who spoke with me, commentators online, etc., complained that Kavanaugh revealed himself as not having a judicial temperament. I know very few people who have not lost their temper at one time or another, many with very little reason. A very few of them show stress, but will not raise their voice no matter what the the provocation. I yell all the time now at my gf, but believe me SHE GODDAM WELL DESERVES IT!!!!! (God, I hope she doesn't read this - if I don't post next month, you'll understand. Donations are welcome). But, I have a pretty good sense of humor about myself. You can insult me a lot. I don't get upset about ethnic or slurs ("she" insults me so regularly I have to have a pretty thick skin), but, I admit, if you hit the right nerve about my personal integrity basically, call me personally dishonest, I can get pissed. And, though it doesn't seem to happen that I can recall. If you called me depraved, a child molester, rapist, etc., yeah, I'd be furious too.

The irony is, we live in the most sensitive times I've ever experienced in my life. It is the opposite of when I grew up, when it seemed people had a much thicker skin except for people we found a little weird, or, of course, little kids. Now, people are very quick to get insulted. Do parents even teach their kids "Sticks and stones will break my bones, but names will never hurt me," anymore? We even have micro-aggressions, which I'm pretty sure mean "'not-aggressions' but we'd like to call them aggression anyway." Words with dual meanings ("retard" comes right to mind) or words that sound like other words (famously, niggardly) can be dangerous.

Everybody, well almost everybody (not Don, who sometimes commented here before Google screwed up the comment feature) is so freaking sensitive. Yet, when Bret Kavanaugh, on the word of a women who is going by memories that can at best be described as cloudy and incomplete, 35 or so years old, uncorroborated even as to the presence of her own friend, is called a child molester (she was a child at the time), and then also a serial rapist and drugger of women, some people expect him to say, "pip-pip, carry on" or not be livid or upset. His life is changed forever. He has already said he may never teach again. His own students would probably heckle him. How can he be alone with women now? How vulnerable is he? He has to worry about the security of his family, his parents? If he gets on the Supreme Court, are idiots going to be screaming out "rapist" at the oral arguments. We saw what the morons did at the first hearings he had (no Senator Grassley - it is not free speech when the police are dragging them away).

Today, people say they feel "unsafe" if someone has an opinion they do not like and they need "safe zones" or people get fired for their opinions (as famously happened at Google and just happened, I believe at CERN. But, Bret Kavanaugh is not allowed to be upset or show it, because he's going to be a Supreme Court justice and we have to pretend they are without partisan . . . ehhhh . . . they are without partisanship. How silly. Every other member of the court is as partisan as they can be. He'd be no different. In fact, he'd probably still be the least partisan of the R justices. I understand why politicians keep up the pretense of these partisan fantasies that the other justices are fair or impartial, but why do other people? Why not just say, I just want my side to win? Is there an R who wouldn't want Ruth Bader Ginsburg to recuse herself from every controversial case, as a liberal constitutional scholar now insists Kavanaugh would have to, because she said something intemperate about Trump? Come off it. We know how every one of them really feels? Do you remember what Obama said that caused the the Rs not to go the State of the Union address anymore? It was nothing, a pittance over a case? Should they all recuse themselves? Of course not.

Of course, it doesn't matter to the Ds (neither parties feel shame - their friends all support them), because, as I wrote above, it's never been about him (and certainly not about Ford). It's mostly about Garland and Trump and Roe, in some order. I have no doubt, with the hysteria we are seeing, that some of them have talked themselves into believing the rhetoric.

I'm sure many ordinary citizens, forgetting that a week ago they were fine with him even if they were Ds or liberals, because now they have a handle that they'd be outraged at, no doubt, if used against a Clinton when one was in office. Come to think of it, not too long ago in history, they were. Except, almost all of that we've learned was true, and even some of them (and me - I supported him throughout it) kind of came to believe he may have been a rapist too. Indeed, I've only today learned that Juanita Broderick is demanding an FBI investigation into her alleged rape by Clinton. Anyway, partisanship is very powerful, blinding, and I'm sure they believe, whatever it is they believe and that includes believing they were fair in appraising it and coming out on the side they did. As Judge Roy Bean was supposed to have said - "First we have a fair trial, then we hang him." Or perhaps it is just the most magnificent coincident ever known to humankind - that in fairly appraising political controversy, Ds and liberals will side almost every time with Ds and liberals and Rs and cons will side with Rs and cons. And when they don't, their own side will hate them with a white hot heat little seen outside of supernovas.

I do hope Bret Kavanaugh gets on the Court. I have a gentlemen's bet that I hope I lose that he will not. So far I'm losing as he passed the Committee, when Flake voted for him. But, as we know, Flake nearly buckled and did the whole FBI thing, which, if you were watching, was just a weird ballet between him, who didn't know what he was trying to say, Grassley, who just wanted to finish and the Ds, who wanted Flake to make unprecedented demands (or an "amendment," which made no sense) on his yes vote that really made no sense. His experience, particularly with the two women in the elevator, tells us something. It is going to be an all-out "protest-assault" on Flake, Murkowski and Collins and probably a few D Senators to get them to vote against. I am hopeful it doesn't turn violent, but it seems to me that Ted Cruz and his wife were all ready chased out of a restaurant (which now has armed guards b/c the owners are getting death threats - although many Ds have assured me their far left is not becoming violent) in the name of Kavanaugh, so chances are not great if those protesting violence don't feel that they are getting their way.

Alan Dershowitz, a liberal Democrat (ironically, when I was a liberal, I could not stand him at all as he had the most combative and obnoxious debating style) and Harvard professor who often pontificates these days in favor of conservative outrage at political correctness b/c so many liberals truly have gone so far off their nut that it is hard to believe, has been falsely accused himself in the past and knows what it is like. He called what goes on these days nearly sexual McCarthyism. That's kind of like what it is, but maybe worse.  Whatever it is, I am passed my dating age and don't have to suffer much because of it. But, I feel for young people today. Many are just ignoring it, but many are just accepting it and they are missing a lot and also being afraid. I've heard too many say so to me, and it's not like I've talked to that many, to think it's just me being an old codger saying damn those kids and their newfangled ways.

The man I sometimes refer to here as Eddie told me that he heard recently that not only should affirmative consent be obtained before sex, but that it should be enthusiastic consent. Well, there goes my sex life and that of almost everyone in my age group. I'm not blaming anyone. I'm just saying. But, even Eddie, pretty far to the left by his own admission, thought that was over the top.

And, I'm done watching. The Senate has been speaking about it non-stop, as have the talking heads. I really can't listen anymore to either side. Poor Bret. We will see what happens. But, I just don't think he's going to make it and that will be the shame (as was Garland).  

What's a pluffer?

I’ve been on trial lately (no, I'm not the defendant, stupid – I’m representing a client) and have neglected the world’s greatest unread blog. I shall remedy that today, having been given a short respite.

I was watching C-Span the other day. A handsome 40 something man, already reaching the apex of his career, made a statement to a congressional committee. I had actually watched this statement, made over a quarter of a century ago, live. But, I had forgotten it in the crush of future events. He spoke extremely slowly, measured, and a few times excused himself as he started to choke up speaking about his family - what they had survived and how they had encouraged and helped him. Here is some of his testimony. I’ve added paragraphs to make it easier to read, corrected a couple of spelling errors and excised the speakers name for the purposes of surprise, although you will figure it out rather quickly (I think):

“. . . Much has been written about my family and me over the past 10 weeks. Through all that has happened throughout our lives and through all adversity, we have grown closer and our love for each other has grown stronger and deeper. I hope these hearings will help to show more clearly who this person [             ] is and what really makes me tick.

My earliest memories, as alluded to earlier, are those of Pin Point, GA, a life far removed in space and time from this room, this day and this moment. As kids, we caught minnows in the creeks, fiddler crabs in the marshes, we played with pluffers, and skipped shells across the water. It was a world so vastly different from all this.

In 1955, my brother and I went to live with my mother in Savannah. We lived in one room in a tenement. We shared a kitchen with other tenants and we had a common bathroom in the backyard which was unworkable and unusable. It was hard, but it was all we had and all there was. Our mother only earned $20 every 2 weeks as a maid, not enough to take care of us. So she arranged for us to live with our grandparents later, in 1955.

Imagine, if you will, two little boys with all their belongings in two grocery bags. Our grandparents were two great and wonderful people who loved us dearly. I wish they were sitting here today. Sitting here so they could see that all their efforts, their hard work were not in vain, and so that they could see that hard work and strong values can make for a better life. . . .

I attended segregated parochial schools and later attended a seminary near Savannah. The nuns gave us hope and belief in ourselves when society didn't. They reinforced the importance of religious beliefs in our personal lives. Sister Mary Virgilius, my eighth grade teacher, and the other nuns were unyielding in their expectations that we use all of our talents no matter what the rest of the world said or did. After high school, I left Savannah and attended Immaculate Conception Seminary, then Holy Cross College. I attended Yale Law School. Yale had opened its doors, its heart, its conscience to recruit and admit minority students. I benefited from this effort.

. . . But for the efforts of so many others who have gone before me, I would not be here today. It would be unimaginable. Only by standing on their shoulders could I be here. At each turn in my life, each obstacle confronted, each fork in the road someone came along to help. I remember, for example, in 1974 after I completed law school I had no money, no place to live. Mrs. Margaret Bush Wilson, who would later become chairperson of the NAACP, allowed me to live at her house. She provided me not only with room and board, but advice, counsel and guidance. As I left her house that summer, I asked her, "How much do I owe you?" Her response was, "Just along the way help someone who is in your position." I have tried to live by my promise to her to do just that, to help others.

So many others gave their lives, their blood, their talents. But for them I would not be here. Justice Marshall, whose seat I have been nominated to fill, is one of those who had the courage and the intellect. He is one of the great architects of the legal battles to open doors that seemed so hopelessly and permanently sealed and to knock down barriers that seemed so insurmountable to those of us in the Pin Point, GA's of the world. The civil rights movement, Rev. Martin Luther King and the SCLC, Roy Wilkins and the NAACP, Whitney Young and the Urban League, Fannie Lou Hamer, Rosa Parks and Dorothy Hite, they changed society and made it reach out and affirmatively help.

I have benefited greatly from their efforts. But for them there would have been no road to travel. My grandparents always said there would be more opportunities for us. I can still hear my grandfather, "Y'all goin' have mo' of a chance then me," and he was right. He felt that if others sacrificed and created opportunities for us we had an obligation to work hard, to be decent citizens, to be fair and good people, and he was right. You see, Mr. Chairman, my grandparents grew up and lived their lives in an era of blatant segregation and overt discrimination. Their sense of fairness was molded in a crucible of unfairness. I watched as my grandfather was called "boy." I watched as my grandmother suffered the indignity of being denied the use of a bathroom. But through it all they remained fair, decent, good people. Fair in spite of the terrible contradictions in our country. They were hardworking, productive people who always gave back to others. They gave produce from the farm, fuel oil from the fuel oil truck. They bought groceries for those who were without, and they never lost sight of the promise of a better tomorrow. I follow in their footsteps and I have always tried to give back.

Over the years I have grown and matured. I have learned to listen carefully, carefully to other points of views and to others, to think through problems recognizing that there are no easy answers to difficult problems, to think deeply about those who will be affected by the decisions that I make and the decisions made by others. But I have always carried in my heart the world, the life, the people, the values of my youth, the values of my grandparents and my neighbors, the values of people who believed so very deeply in this country in spite of all the contradictions. It is my hope that when these hearings are completed that this committee will conclude that I am an honest, decent, fair person.

I believe that the obligations and responsibilities of a judge, in essence, involve just such basic values. A judge must be fair and impartial. A judge must not bring to his job, to the court, the baggage of preconceived notions, of ideology, and certainly not an agenda, and the judge must get the decision right. Because when all is said and done, the little guy, the average person, the people of Pin Pojnt, the real people of America will be affected not only by what we as judges do, but by the way we do our jobs. If confirmed by the Senate, I pledge that I will preserve and protect our Constitution and carry with me the values of my heritage: fairness, integrity, openmindedness, honesty, and hard work."

The judge was being nominated to sit on the Supreme Court. He was a Republican and a conservative, and was challenged in that hearing by Democratic committee members because of their fears of his ideology. As I so often find with myself (and I know others find this frustrating) I agreed on many of their points while finding their manner a little much. But, without suggesting the Democrats were behaving any differently than their Republican colleagues would have if the situation was reversed, my dislike of their behavior would get worse in the coming weeks.

A month later, Justice Clarence Thomas (he was a Court of the Appeals Justice at the time), was back for another hearing which was, until the O.J. trial a few years later, the most salacious public event in a long time. The committee, or at least many of them, had decided that he was not the person he said he was.  Being accused of sexual inappropriate behavior (not harassment) by a former colleague, Anita Hill, he was forced to publicly defend himself. Here’s an excerpt from his next opening statement:

“ . . . The first I learned of the allegations by Prof. Anita Hill was on September 25, 1991, when the FBI came to my home to investigate her allegations. When informed by the FBI agent of the nature of the allegations and the person making them, I was shocked, surprised, hurt, and enormously saddened. I have not been the same since that day. For almost a decade my responsibilities included enforcing the rights of victims of sexual harassment. As a boss, as a friend, and as a human being I was proud that I have never had such an allegation leveled against me, even as I sought to promote women, and minorities into nontraditional jobs. In addition, several of my friends, who are women, have confided in me about the horror of harassment on the job, or elsewhere. I thought I really understood the anguish, the fears, the doubts, the seriousness of the matter.

But since September 25, I have suffered immensely as these very serious charges were leveled against me. I have been wracking my brains, and eating my insides out trying to think of what I could have said or done to Anita Hill to lead her to allege that I was interested in her in more than a professional way, and that I talked with her about pornographic or xrated films. Contrary to some press reports, I categorically denied all of the allegations and denied that I ever attempted to date Anita Hill, when first interviewed by the FBI. I strongly reaffirm that denial.

. . . .

Mr. Chairman, something has happened to me in the dark days that have followed since the FBI agents informed me about these allegations. And the days have grown darker, as this very serious, very explosive, and very sensitive allegation or these sensitive allegations were selectively leaked, in a distorted way to the media over the past weekend. As if the confidential allegations, themselves, were not enough, this apparently calculated public disclosure has caused me, my family, and my friends enormous pain and great harm.

I have never, in all my life, felt such hurt, such pain, such agony. My family and I have been done a grave and irreparable injustice. During the past 2 weeks, I lost the belief that if I did my best all would work out. I called upon the strength that helped me get here from Pin Point, and it was all sapped out of me. It was sapped out of me because Anita Hill was a person I considered a friend, whom I admired and thought I had treated fairly and with the utmost respect. Perhaps I could have better weathered this if it were from someone else, but here was someone I truly felt I had done my best with. Though I am, by no means, a perfect person, no means, I have not done what she has alleged, and I still do not know what I could possibly have done to cause her to make these allegations.

When I stood next to the President in Kennebunkport, being nominated to the Supreme Court of the United States, that was a high honor. But as I sit here, before you, 103 days later, that honor has been crushed. From the very beginning charges were leveled against me from the shadows—charges of drug abuse, antisemitism, wife-beating, drug use by family members, that I was a quota appointment, confirmation conversion and much, much more, and now, this. I have complied with the rules. I responded to a document request that produced over 30,000 pages of documents. And I have testified for 5 full days, under oath. I have endured this ordeal for 103 days. Reporters sneaking into my garage to examine books I read. Reporters and interest groups swarming over divorce papers, looking for dirt. Unnamed people starting preposterous and damaging rumors. Calls all over the country specifically requesting dirt. This is not American. This is Kafka-esque. It has got to stop. It must stop for the benefit of future nominees, and our country. Enough is enough. I am not going to allow myself to be further humiliated in order to be confirmed. I am here specifically to respond to allegations of sex harassment in the work place. I am not here to be further humiliated by this committee, or anyone else, or to put my private life on display for a prurient interest or other reasons. I will not allow this committee or anyone else to probe into my private life. This is not what America is all about. To ask me to do that would be to ask me to go beyond fundamental fairness.

Yesterday, I called my mother. She was confined to her bed, unable to work and unable to stop crying. Enough is enough. Mr. Chairman, in my 43 years on this Earth, I have been able, with the help of others and with the help of God, to defy poverty, avoid prison, overcome segregation, bigotry, racism, and obtain one of the finest educations available in this country. But I have not been able to overcome this process. This is worse than any obstacle or anything that I have ever faced. Throughout my life I have been energized by the expectation and the hope that in this country I would be treated fairly in all endeavors. When there was segregation I hoped there would be fairness one day or some day. When there was bigotry and prejudice I hoped that there would be tolerance and understanding some day.

Mr. Chairman, I am proud of my life, proud of what I have done, and what I have accomplished, proud of my family, and this process, this process is trying to destroy it all. No job is worth what I have been through, no job. No horror in my life has been so debilitating. Confirm me if you want, don't confirm me if you are so led, but let this process end. Let me and my family regain our lives. I never asked to be nominated. It was an honor. Little did I know the price, but it is too high. I enjoy and appreciate my current position, and I am comfortable with the prospect of returning to my work as a judge on the U.S. Court of Appeals for the D.C. Circuit and to my friends there. Each of these positions is public service, and I have given at the office. I want my life and my family's life back and I want them returned expeditiously. I have experienced the exhilaration of new heights from the moment I was called to Kennebunkport by the President to have lunch and he nominated me. That was the high point. At that time I was told eye-to-eye that, Clarence, you made it this far on merit, the rest is going to be politics and it surely has been.

There have been other highs. The outpouring of support from my friends of long-standing, a bonding like I have never experienced with my old boss, Senator Danforth, the wonderful support of those who have worked with me. There have been prayers said for my family, and me, by people I know and people I will never meet, prayers that were heard and that sustained not only me, but also my wife and my entire family. Instead of understanding and appreciating the great honor bestowed upon me, I find myself, here today defending my name, my integrity, because somehow select portions of confidential documents, dealing with this matter were leaked to the public.

Mr. Chairman, I am a victim of this process and my name has been harmed, my integrity has been harmed, my character has been harmed, my family has been harmed, my friends have been harmed. There is nothing this committee, this body or this country can do to give me my good name back, nothing. I will not provide the rope for my own lynching or for further humiliation. I am not going to engage in discussions, nor will I submit to roving questions of what goes on in the most intimate parts of my private live or the sanctity of my bedroom. These are the most intimate parts of my privacy, and they will remain just that, private.”

I am not here to tell you whether he did the things Anita Hill said he did or not. I can’t read either of their minds (a lot of people I know are sure they can), and I do not think there is any smoking gun that can let us say with certainty. But, I easily remember my thoughts at the time. Without knowing, I tended to believe that what she said was true. One of the reasons is, despite all the hoopla about it, what he was accused of was so modest, so nothing in my mind, that I know that a hundred or thousand times over I have done or said things which were far "worse," and would have disqualified me from that position (as if . . . ), but which I still think were nothing. He was not accused of touching, threatening, insulting, berating or even teasing her.   

Naturally, there was a pile on. One co-worker said he pressured her for a date and made jokes about women’s private parts, but she never felt harassed or threatened. I should hope not. Another said "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female." She too never felt harassed. Neither testified. One who did said she worked literally next to Thomas for two years testified she never heard him make a sexual or offensive comment. Others testified to his character. Anita Hill herself said she was not sure if what he said amounted to sexual harassment, but she thought it unfitting for a member of the Supreme Court. She said he used words like “penis,” “breasts” and “pubic hair.” I can’t find it but I specifically remember a joke about a pubic hair on a coke can and him mentioning a porn movie he watched that starred “Long Dong Silver” (I don’t know if that is a real person). I believed her, because I thought she testified credibly and can’t see why she’d make it up, especially considering that most people would feel great pride someone they knew was on the Supreme Court, and they had still been friendly after they stopped working together.

What disturbed me most was the hypocrisy of the Senators, and not just the Democrats. Orrin Hatch defended Thomas with fervor. I’ve come to appreciate him more as he ages (and I guess as I age) as his tone has become far more moderate, but I thought his defense of Bork previously had been over-zealous. During the Thomas hearing, he said that anyone who did what Hill had said would be insane. Insane! To make a joke about a pubic hair? That is remarkable because he was close friends with Ted Kennedy, who also sat on the committee and was famous even then for being very crude and sexually forward with women, probably well past most people’s personal standards for sexual harassment.

What I would have preferred is that the senators all laughed the allegations out of court – well, committee, although I’m sure that would have made a lot of women and some men furious too. Now, of course, we have a president who has said – well, I’m sick of talking about that, but let’s just say that Trump makes Thomas look like the proverbial choir boy. People tell dirty jokes. Again, I can’t know, but I would bet that every single senator sitting there, not just Kennedy, had said or done things that would disqualify them from their own seats had they been public knowledge. I’ll go further. I’m a man, so I will speak for men and say that if women could read the minds of ANY man, even the most staid and apparently sexless, they would not want to be alone in a room with them let alone vote for them. For crying out loud, we all know about the Martin Luther King, Jr.’s sex tapes. Would he be disqualified? I’m pretty sure if we could read women’s minds we all might react similarly.

Thomas was right. To this day, he is marked by the allegations even in the age of Trump as if he were an accused rapist. It was a figurative lynching. He did however make the same mistake that is increasingly made today by his adversaries. He assumed it was about race, calling it a high-tech lynching and saying that this was what happened to uppity black men. I suspect he was giving Democrats a little bit back for their own identity politics, which were a fraction of what they are today. It was not about race. It was about politics, just as now. Often I hear from Democrat friends to this day that Obama was hated by Republicans because he was black. I’m sure there are some people – which he himself acknowledged – but, if Clarence Thomas ran for president, almost all Republicans would vote for him.

If tomorrow, Thomas became a liberal, rather than the reflexive conservative he seems to be, he would also be lionized by the Democrats and demonized by Republicans. This is just the way it is. And, because Neil Gorsuch is a conservative, he will be demonized by Democrats and lionized by Republicans as Thomas actually is. So far, the Democrats cannot find anything salacious and are reaching to the bottom of the barrel to find absolutely anything they can. I hope for his sake, he never made a dirty joke or was caught looking at a women’s cleavage or turned his back on a black on video (even if he was going to get him a glass of water), because the attacks will be relentless.

Watching the Thomas video, I was reminded of so many other people I have seen testify in congress. Frankly, the behavior of congresspersons and senators is so debasing and obviously partisan, it is laughable in some ways. But, I don’t imagine it is fun if you have to sit there and take it. I don’t think I could do it. I can in court because I represent clients who need me to remain stoic (or usually). But, if it were me before congress – I have my fantasies. Of course, if I wanted the job. . . maybe I’d sit there and politely listen too. But, I do not understand why people in an adverse administration don’t tell them to stick it once they are nominated. I'd be happy to say "impeach me if you don't like it." Justice Thomas kind of did. And, when he sits silently in court, I think he is sort of sticking it to them too - it's an I don't care what you think of me thing. Maybe not.

Unfortunately, I will miss the Gorsuch live hearing and may not get to watch it for a week or so. I think I’ve seen every single nomination hearing, many on videotape long after they were held, since they’ve been taping them. If I remember correctly, Rehnquist’s hearing for the Chief Justice position was first, then Scalia.  For the most part, they are a waste of time. The Justices know what they have to say to be confirmed and usually they are. These are not normal times, however. There is blood in the water and hysteria in the air.  I expect Gorsuch to be phlegmatic, but if you have never seen one before, this might be a good one to start with.

Oh, and what's a pluffer, Justice Thomas?

My hobby meets Hobby Lobby - Religion in America II

I can hear people snickering. Too busy working to write your blog, hah, hah, hah. Fine. I admit it. I've been very busy being an attorney lately.  Or busier, anyway. I can't even really complain because I still do have a lot of free time - but - this work stuff has cut into my extra-free free time and I'd rather it wouldn't. And what has take the brunt of it? The best unread  blog in the world. But, now I'm back.

 

A few weeks ago I wrote on a case involving the practice of prayer before legislative sessions ("Religion in America: A Town called Greece").  The case was my segue  into some general questions about religion in America.  I broke the discussion into two parts, because I know my posts are too long for the few who actually read this evalovin' blog, but I think I can finish up this topic here today. One thing I've learned about myself - give me a computer and no editing restrictions (such as an article in a newspaper would have) and I will write and write and write. I never know until I get to somewhere between 6-8 Word.doc pages whether it has to be finished another day.  But, I'm going to try.

 

I'm not going to summarize the Town called Greece post other than to say that the court's decision is that legislative prayer continues to be allowed. My prediction was that it would, but in a slightly less Christian manner. Justice Breyer wrote a dissent which I had thought might have been where the majority came out. But, I was wrong in that and it was just allowed.  Instead I'm just moving on to another case, known by the name of the company arguing against Obamacare, Hobby Lobby, which is also more an introduction to the general question of religion in America, and where we draw the lines in the battle of the first amendment clauses. I think it is by far the more important of the two cases. Because while the outcome of the Town called Greece case is important, the idea that legislatures can continue to do what they've done forever in America - start the session with a prayer  - may be an annoyance for some, but is hardly scary. To the contrary, Hobby Lobby has a tremendous reach into whether we have the same law for everyone in this country or laws subject to individual religious notions.

 

As with the Greece case, Hobby Lobby deals with a serious problem concerning religion in America, albeit in a different form.  It concerns how to interpret the two first amendment religion clauses - the establishment clause and the free exercise clause, such that the law can be "fairly" applied - obviously a fluid concept - but at least in the minds of a majority of people, such that we can still say, in "so far as we approve of monarchy, that in America the law is king" (Tom Paine).

 

The facts of Hobby Lobby go like this. The Affordable Care Act ("Obamacare") has certain requirements for employers of a certain size to make health care available to their employees or face a tax penalty. The act also requires that the policies provide contraceptives. The owners or managers of some companies have religious beliefs that include the notion that contraceptives are immoral. They do not want to provide their employees with policies that provide contraception which they believe constitute abortion by preventing the egg from implanting in the uterus (e.g., Plan B - the Morning After pill), though apparently contraceptives like condoms are okay because there is no fertilized egg.  On the other hand, they also claim they feel a religious duty to provide health care to their employees (don't look in the Bible - you won't find it there).  If they do not do as the federal government tells them to do, they face significant penalties.

 

Here is where it gets complicated. To get past outrage from religious organizations the government later determined that actual houses of worship would be exempt. So, the church that employs a gardener does not have to comply. But religious organizations that become involved in secular businesses with a certain amount of employees, such as a hospital, do have to comply. And they too have sued.

 

More complicated, if those religious organization fill out a short form that states they are taking a religious exemption, they avoid the penalties and the insurer has to pick up the cost. It is argued that this is still no good, because if they comply and exempt, then another entity will have to comply -probably the insurer, which ultimately means other insurance customers pick up the tab - and they feel that is no better; abortion will still be taking place on account of them.  So, there are essentially two groups - corporations where the management does not want to provide insurance coverage including what they consider abortion - and religious groups running secular businesses.

 

Of course, to even consider these arguments you must be able to ignore some of the other issues surrounding abortion. You can't just say - well, I believe in abortion; therefore too bad on them - without ignoring the religious freedom issue that even you yourself might want to exercise.  Those are very generally the facts.

 

There can be no legitimate doubt but that religion has been given a preferential position in our constitution. I went through in the last post the actual clauses and how we got there. Though I have never been religious nor understood the desire for it (which I feel can be easily distinguished from morals or ethics) myself, I am damn glad that we do this. And, in some cases, what is meant by religious belief has been expanded, particularly during the civil revolutions of the '60s to include the broader notion of conscience in general, whether connected to a deity or theology or not.  There is probably no other non-homogenous country that has handled its religious disputes so well as we, however imperfectly that may be, though I cannot say I have exhaustively researched this. But, no doubt as well that this is as a result of our first amendment.

 

But, what is wrong with the idea that people, exercising their religious freedom, may ignore laws that would require them to violate their beliefs?  In my view, a lot. But, like almost everything constitutional, it is a bit complicated and has been wrestled with long before we were a country or Europeans even lived on this continent.  But, since the continuous modern Republic with the notion that here the law is king, it has been developed here more than anywhere else.

 

It is not the only question, of course. Alongside it is the right of people to believe (as opposed to act) however they please and the freedom from religious persecution which has existed probably everywhere religion has force. The domination of one group over others is the common story of mankind and one that even today in some places is an argument that ends with torture and death. Even where toleration has been extended to other groups, it very often still exempts others.  And, I will suggest, when it comes to the issue of today, whether there should be religious exemption from the law, that the supremacy of one religion over another is still the issue. For I maintain that when you make an exception for any group's or any individual's religious beliefs against a neutral law that does not single it out, then the government is implicitly, even if never mentioned, picking one set of beliefs over another.

 

Certainly in our country, as far back as the 17th century, when colonies were still forming and populating, John Cotton, among others, championed the idea of religious purity and persecution. Opposed to him was a founder's founder, who is so infrequently mentioned in historical discussions about religion that it is almost secularly heretical - and that would be Roger Williams, who preceded by decades and was even broader in his ideas of religious freedom than John Locke of England (to whom he is most often compared) and Baruch Spinoza of Holland. When you study him you realize that two of our great religious toleration figures - Madison and Jefferson (and I will leave off beating Jefferson today) - took so much from him. Indeed, even Jefferson's most famous phrase on religion, found in a letter he wrote, concerning a wall of separation between church and state, was first put forth not by Jefferson (much that he thought was entirely derivative), but as far as we know by Williams.

 

It is not that Williams was not religious - he was devout. He just believed that intolerance was far, far worse than heresy, which should be argued only by persuasion.  This was not new to him either and he stood upon the shoulders of some great religious figures I have written of in earlier posts.  But, his piousness is one that modern people will recognize and generally approve of as it is greatly concerned with notions of peace and gentility as opposed to the fire and brimstone of Cotton and many others.  Williams, born and raised in England was trained in part by the great 17th century lawyer, Edwin Coke, and also studied with the famed writer (though I just can't read him) and sometimes apostle of freedom, John Milton. But, he took his beliefs much further than they or most others in his time ever contemplated. And there are many ideas that he formulated which are important to us, but none so important to our success and greatness as a nation as the notion that civil law may be made by a majority - but not one which excluded the beliefs of others - even non-Christians.  Thus, he protested the taking of Indian lands and made the first American law banning slavery even before the 18th century. Oddly, he quarreled with the Quakers, who could be quite annoying, though they are perhaps the most vociferous champions of religious freedom and abolition in our history for a religious group.

 

Look how the Williams' Rhode Island charter prefigures our own constitutional ideas of religious freedom (I have rendered it into modern English, for  though he came after Shakespeare, he is sometimes in his spelling much harder to read than the Bard for modern English speakers:

 

"No person within the said colony, at any time hereafter, shall be in any way molested, punished, disquieted, or called into question, for any differences in opinion in matters of religion, which do not actually disturb the civil peace of said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of land hereafter mentioned; they behaving themselves peaceably and quietly, and not using this liberty for licentious or profane behavior, nor to the civil injury or outward disturbance of others; any law, statute, or clause, therein contained, or to be contained, usage or custom of this realm, to the contrary hereof, in any wise, notwithstanding."

 

Notice that the key is the separation of law from religion. You could make an argument, of course, that the exclusion of "licentious or profane behavior" from the protection of the charter means it is only a paper tiger, but, in truth, you could make that same argument even today as we still exclude certain speech from the protection of the first amendment when it is deemed obscene (whatever that means), even if this is lightly enforced in the internet age.  We too still have on the books laws against adultery and even those are sometimes, if rarely, enforced.

 

But, while praising Williams as much as I can any of our pre-constitutional forefathers in the religious arena, I also think he was partially wrong.  For, if you read it closely it also means that law is also subordinate to religious beliefs, at least to the extent that the civil peace of the colony is risked.  And thus, to a large degree, is born (here and in his writings) the tension between law and religious belief that has stayed with us to this day and can be the subject of a modern case. In its time it was fairly revolutionary.

 

But while I may think he took a wrong turn here, our country does not.  For the idea of accommodation to (as opposed to dominance of) religion is to some extent still the law of this land and very popular with a majority of people. My disagreement is not in wanting religion to take second place to any other type of thought (and it has clearly been given a high place by the constitution) and it has nothing to do with my lack of belief in a deity, but my concern that any accommodation of a person's religious belief over the rule of law requires a decision about an individual or group that their beliefs are - in respect to the law - given precedence to others. Thus, in trying to provide more freedom of conscience by religious accommodation, the other great American principles of equal protection under the law and preceding principle that we have rule of law and not men are shaken if not destroyed. And that means there is a tension between religious freedom and all other freedom.

 

But, don't get me wrong. You cannot just apply black and white law on it. Judgment is often required. And judgment can always be deemed incorrect by others. And culture and mores can change over time, which make it even more difficult to navigate the whirlpools in this river.  There are many examples I could give which demonstrate this. Two come most easily to mind.

 

The first is the prohibition against polygamy, practiced for a long time by Mormons.  A number of Supreme Court cases have visited this issue and the conclusion has always been that there is no religious discrimination but merely the application of secular law. Of course, this merely demonstrates our inability to adequately demonstrate a way to separate legal morality from its religious sources. We have used similar rhetoric to uphold other religious customs. Blue laws that closed commerce on Sunday, not coincidentally the Christian Sabbath, was deemed to have become a secular day of rest and therefore - constitutional.  It was hard for many in opposition to see how this was doing anything but just making law out of a religious preference. Believe it or not this was an issue even in Roger Williams' day and Rhode Island did not have blue laws while he lived.

 

Though almost every judge has deemed this to be the case with polygamy (one district court judge in Utah has now slightly weakened this prohibition - at least as far as cohabitation is concerned, though not government recognition of what is officially deemed a marriage), I think it is wrong. Religious liberty must give way before generalized freedom or we must pick one religion or one person's conscience over another. For once you determine that marriage is between one man and one woman only, you decide (depending on whether you consider Mormons Christian) either that the Christian view of religion prevails over those of some Mormon believers (though they are rare) not to mention Muslims. Though we are very used to this in the United States, and I never even considered the idea that marriage could be other than between one man and one woman until I was long an adult. It doesn't mean it is right. The libertarian side of me wants to see government out of the business of regulating the relationships couples or quadruples want to form amongst themselves, particularly in aspects of it that are social institutions that are basically consensual associations between people determined to enrich their lives -- even if they are mistaken.  I feel the same way about it that I do about whether people themselves should control what day they want to close their shop, if at all. Individuals should control, not the government.

 

The second example is a well known Supreme Court case known as Employment Division v. Smith (I'll call it Smith).  In this case American Indians were fired for violating state prohibitions against peyote use. They challenged it on religious freedom grounds and it appears that their use was genuinely linked to religious ritual. The Supreme Court - and Judge Scalia, no enemy of religious accommodation, wrote the opinion, concentrating on the idea that though people have freedom of belief, they cannot violate "neutral law of general applicability" or, in other words, laws that don't single out religion for discrimination, apply to everyone cannot be violated. The peyote users wanted the well known formula of the state being unable to limit prevent their religious freedom unless it had a compelling reason applied in the least restrictive way (known as strict scrutiny).  It should be noted that the court held that the state could have accommodated the religious beliefs if they had wanted.

 

Our unemployed freedom seekers lost, but, in the end, the country decided they didn't like the decision. Congress quickly passed and Clinton signed into law The Religious Freedom Restoration Act, a law that I hold with the same contempt I do the equally poorly named Defense of Marriage Act, also enacted in Clinton's terms. The RFRA required the courts to apply strict scrutiny.  But, the battle wasn't over. The court ruled in City of Boerne v. Flores that the law was unconstitutional as applied to the states. I'm not going into the federalism issues underlying why it still applied as to the federal government, but, congress fired back with a similar law giving protection to religious land owners (a law which you can look up under the mellifluous acronym RLUIPA . It never ends. 
 

I want to state, I am not against all religious accommodation so long as it is extended to any conscientious belief and not just ones with well established dogma or ritual. The government should not be in the business of deciding what is a religious belief and what philosophical or political. Of course, this would make it, frankly, not much of a law at all, but a mere suggestion.  But, this should be made part of the initial neutral law of general applicability and not the whim of a judge who likes this bit of conscience or ritual or dogma over that one.

 

Let me bring this back to Hobby Lobby because I have my own conundrum with respect to it.  I don't like Obamacare to begin with. Why, because I feel the federal government has no right to determine our healthcare. Frankly, I feel the state governments should have very limited right to do so and only to prevent things like fraud or disease or other safety issues that are not easily recognizable and preventable by a willing person. I am not opposed to our having safety nets for people who need them, but they must be modest and not impinge on the freedom of those who do not want to participate. These are general freedom issues. However, I do not believe the owners of Hobby Lobby or a religious organization running a secular business should have any more right to disobey a neutral law of general application than I would, simply because they claim religious motivation.  The conundrum is this. The powers that be don't agree with me when it comes to the freedom issue. It has long been determined that save a few small areas of law, the government is pretty much going to run everything save a few small areas we still can call our own.  So, while I want everyone to get to make their own healthcare choices or to give their employees the benefits they desire which the insurance companies determine they want to make available, I'm not going to get it. And, while I don't want Hobby Lobby or others to get to have a privilege the rest of us don't, I'm torn by the dilemma of hoping they lose the case I think that everyone should win.


We simply cease to have equal protection and a rule of law (instead of men) if Joe can decide he's not violating the law and Mary has to obey it simply because she doesn't phrase her objection as a religious one.

 

Complicated? Of course, and more than this will be too deep for one little blog post. My prediction - I think the Court gets this one right and sticks with the wisdom surrounding neutral laws of general application.  But, seriously, what do I know?  When it comes to Supreme Court decisions I'm wrong all the time.

Give me your stuff, sayeth Uncle Sam

Our Supreme Court appears to have had far more power than it appears the founders thought it would. Alexander Hamilton, for one, wrote in Federalist no. 78:

“It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.” (footnotes omitted).”

Let me shrink that down for those of you who go pale at the sight of anything longer than a text message. The judiciary is the weakest of the three branches because it is powerless to attack the other two branches, can barely defend itself, and really can’t harm the people as long as it remains independent from the other branches. Because it is so weak, the judges need to be appointed for life, which is indispensible to keep their independence.

But in the next paragraph Hamilton states the very reason, unbeknownst to him, that the Supreme Court would later become so powerful in spite of its expected weakness:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

Which means that since the Constitution make the power of the legislature limited – for example, it forbids making something already done illegal (no ex post facto laws) - the only way to keep it that way is for the independent court to declare any such law void – or unconstitutional.

Of course, it doesn’t actually say in the Constitution that the Supreme Court can do this, but in the seminal case of Marbury v. Madison, which was most brilliantly covered in this blog on 10/29/10, Hamilton’s protégé, Chief Justice of the Supreme Court John Marshall made this part of his argument when he declared it the courts’ business to say what the law is and garnered to them the ability to declare the laws made by the other two branches unconstitutional.

Of course, like our congress and our executives, the Supreme Court can be pretty boneheaded and it makes me happy to point it out when they are. Here are five bad cases by the court (I’d do the traditional ten, but I’m so damn wordy) which have worn away your property rights. You might agree or not with the court. I don't.

1. Wickard v. Filburn (1942)

One of the issues that has been fought the longest in Supreme Court history is over the meaning of the interstate commerce clause, found in Article 1, section 8 of the constitution, which expressly gives congress the right to regulate interstate commerce. Often in cases, it is couple with the “necessary and proper” clause, which gives the congress the right to make laws which are not technically within their expressed power, but which are necessary and proper to carry them into execution (at an early point, “necessary” was interpreted to mean “convenient” - but I'm not going there). Over the course of two centuries, that commerce clause's meaning has been tremendously expanded, as the commerce clause was interpreted not just to mean congress should be the umpire and make the states play fair with each other, but to cover any activities which were in some way related to commerce taking place in more than one state or even locally if it might have an affect on interstate commerce, no matter how remotely. I don’t mean to argue out the merits of the two sides, as it has really been long decided. But, some cases do go just too. Wickard was an extraordinarily bad decision in my book.

During the depression, the federal government restricted the growing of wheat because it actually wanted to control the price of it (basic economics – supply and demand affect price). Roscoe Filburn – what a great name – was a farmer who grew a little extra wheat on his farm to use to feed his family and his livestock. He was limited by the federal government to growing wheat on about 11 acres, but used about 23. Since he wasn’t selling this wheat on the market, let alone the interstate market, he questioned how the federal government could tell him what to do with his own property.

At the time, in constitutional law, there were still some division between whether activities were local or non-local, and whether they had a direct or indirect effect on interstate commerce. Those activities which were local and had an indirect effect on interstate commerce were outside of the power of congress to control.

Although the idea had been brewing for a while, this case blew the doors off on restrictions of congress’s power under the commerce clause. The court ruled that it no longer mattered whether activity could be said to local or had an indirect effect on interstate commerce. “That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if [someone’s] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if [the activity] exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'”

Wow, so, even if congress is empowered only to regulate commerce that is interstate, it no longer matters if it is commerce or interstate – so long as it has a direct or indirect effect on interstate commerce. Yeah, they say "substantial" effect, but anything they decide is substantial is substantial.

When you consider the nature of the world, and how almost any activity can be made to relate to some other distant activity if one uses their imagination, it gives the government powers over the individual which are startling. Only in the 1990s were any brakes on this put at all, and those were not well made brakes. But, it is the line that has defined commerce clause litigation ever since.

In Filburn’s case, the food was for his family’s and animal’s consumption. The court reasoned that if he is feeding them, that means he is not buying the stuff on the market. And, though that might be a small amount, if you add it up with what everyone else might do, the activity would keep the government from regulating the price (in other words, preferring the command economy to the capitalist market economy).

Taking this case to its logical conclusion, the federal government could, in effect, tell you that you may not hunt, you may not fish, you may not eat the carrots in your garden plot. In effect, you buy what we want at the price we tell you that you must, or you starve. How far is this from the idea that the government is there to be the honest broker, and to make sure there is a level playing field? How far is it from what the Sheriff of Nottingham did in the tales about Robin Hood? Not very.

2. Daniel v. Paul

From time to time in this blog I believe I have mentioned my view of the use of the commerce clause to enforce anti-discrimination law, particularly the 1964 Civil Rights Act which forbids even private persons in interstate transportation or accommodation from discriminating based on color among other reasons. I believe the law, as applied to private citizens or companies, is unconstitutional, and the congress’s interstate commerce clause power does not extend so far as to force private citizens not to discriminate. On the other hand, I also feel that these were necessary laws and were among the best laws passed by congress in our history. It is a paradox, I know, but, I am not the first or will be the last to feel that way. Without going into it fully here, the reason is because of the nature of our initial constitution and culture, and the difficulties in race relations which have stemmed from it. But, that's for another day.

As to the 1964 act, probably the most famous case which came out this legislation was Heart of Atlanta Motel v. U.S. (1964). There the court  found that congress did have such a power under the commerce clause. However, it must be noted that in that case not only was purposeful discrimination admitted by the defendant, but the motel also acknowledged that it was definitely acting in interstate commerce. So, I am skipping to a much less well known case which you will rarely ever see written about, but which was a much worse decision by the court.

That case is Daniel v. Paul (1969). In this case a husband and wife ran a private club in the middle of the woods connected to the world by little local country roads, which had a 25 cents membership, and where locals would go to swim, dance, eat and the like. Unlike the Heart of Atlanta Motel case, it was not near any interstate highways, and there was no admission of interstate commerce activity. In fact, it was found in the lower court that there was no proof that anyone ever went there from out of state.

The court, now several years after the Civil Rights Act of 1964, just didn’t care. They were going to find interstate commerce no matter how remote. Without any evidence, they just decided that it was foolish to think no one from out of state ever went there. They decided that somehow advertising in Little Rock Today and The Little Rock Air Force Journal (papers I’m sure y’all’ve read) were seeking interstate business, and they pointed out that since the incidental paddle boats, juke box and vinyl records must have been made out of state and at least some of the ingredients in their bread and soda too, that was good enough for them to find a connection of interstate commerce.

This, of course, makes a farce of the Act and the constitution. It means that no one can ever say that their business is purely local unless they neither have nor use any product in their establishment which was made out of state. And if there is such a business, if they use the telephones or have a television, I’m sure they would decide that was good enough too. Perhaps a wise man sitting on a mountain top in homespun cotton who does not advertise, have running water or a phone might qualify.

Even such a civil rights advocate as Hugo Black (please don’t point out he was momentarily in the Klan when he was young – yawn) thought this was just ridiculous and he dissented. First, he pointed out that every bit of evidence the court relied on was actually not in the record, not the food or juke box or records or boats. There was no proof at all about it. More, even if there were, this is just not good enough to find interstate commerce applies. He quoted Sen. Hubert Humphrey, a major supporter of the law, who stated in congress that it wasn’t meant to cover every business. The court did not care. Black wrote:

“It seems clear to me that neither the paddle boats nor the locally leased juke box is sufficient to justify a holding that the operation of Lake Nixon affects interstate commerce within the meaning of the Act. While it is the duty of courts to enforce this important Act, we are not called on to hold, nor should we hold, subject to that Act this country people's recreation center, lying in what may be, so far as we know, a little "sleepy hollow" between Arkansas hills miles away from any interstate highway. This would be stretching the Commerce Clause so as to give the Federal Government complete control over every little remote country place of recreation in every nook and cranny of every precinct and county in every one of the 50 States. This goes too far for me.”

It should be noted that Black, and also William O. Douglas, who concurred in the judgment, both thought the 14th amendment applied and would have made the law constitutional. I disagree there as well. There are better arguments on the side of the property owners there than on people who might want to use their property.

I don’t have to like or go to the Lake Nixon Club (and, incidentally, it looks like it is now a summer camp with an internet presence, but I have no idea who owns it, and I really doubt almost 50 years later they would still hold the same views) but if some people who live on a country road in Arkansas want to be prejudiced and keep blacks, gays, Jews atheists or far worse, bad dressers, off their property, that should be up to them, not me.

3. Flood v. Kuhn (1972)

This is one case in this series where I am not questioning the court’s use of the commerce clause, but its making an exception for one activity against all logic and reason. In doing so, it shows how subjective our supposedly objective court really is.

Curt Flood was a pretty good baseball player, maybe a great one. I will defer to commenters on that. At some point, inspired by the civil rights movement of the 1960s, he decided that Major League baseball’s reserve clause which enabled the first team to sign a player his keeper for his entire career, if it so desired, was akin to slavery. Flood wrote the following letter to Commissioner Bowie Kuhn:

"December 24, 1969

After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.

It is my desire to play baseball in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia club, but I believe I have the right to consider offers from other clubs before making any decision. I, therefore, request that you make known to all Major League clubs my feelings in this matter, and advise them of my availability for the 1970 season."

The commish said no and Flood sued, taking the case all the way up to the Supreme Court. The argument was that the Sherman anti-trust law (based on the commerce clause) prevented baseball from this policy as it stifled competition. It actually was a matter that had been ruled on twice before by the court. In the first case, they decided that baseball was exempt from the federal anti-trust law because the business of baseball, wrote Justice Oliver Wendell Holmes (to show how little he knew of the game, he made baseball into two words), was a purely state activity. This was in 1922, and the court had yet to fully revolutionize the meaning of the interstate commerce clause. Thus, the federal government couldn’t make laws affecting state acts. It was a unanimous decision. That all changed dramatically in the following decades, as what was deemed interstate grew with the changing economy, and being local was no longer a bar to the commerce clause power. Yet,  still, in a 1952 case, the court stuck with its decision. This time two judges dissented, writing that times have changed and major league baseball was inarguably an interstate business. By, the 1970s, it was pretty clear that major league baseball was about as interstate a business as you can get, at least under the modern interpretation of the commerce law. This time three judges dissented, including William O. Douglas, who regretted his decision in favor of the baseball leagues in the previous decision twenty years before.

But, since the court ruled again for the leagues on the doctrine of stare decisis – that the matter was already decided in a previous case - why is it such a bad decision? Two main reasons. First, the Flood majority admitted that baseball was interstate commerce. They also admitted that they were basing their decision purely on stare decisis even though they had already decided in two other previous cases that boxing and football would not be exempted from the anti-trust law. It was a weak argument as well that if congress had meant to include baseball, it would have changed the law after the 1922 case. The second reason this decision was so bad is more style than substance. In his majority opinion, Justice Harry Blackmun wrote a seven page love letter to baseball, even listing his favorite great players, many of whom I never heard of. Other justices and commentators felt this was not real dignified or judicial. What was he thinking? For these reasons, many think it a worse ruling than his Roe v. Wade opinion.

4. Kelo v. The City of New London (2005)

This one really made people angry. Even people who never listened to politics, didn’t really know what the Supreme Court was, were angry.

The City of New London decided to take some property from some homeowners. Government generally has that right under a doctrine known as eminent domain. However, the constitution states that if private property is taken for public use, there has to be reasonable compensation. This applied to the federal government. But, in what I believe was the earliest example of the high court deciding that some rights under the constitution were so important, they would be applied against the states, it was made to so apply in a railroad case in 1897, although as early as 1798 the court had indicated that this would be the case.

One of the questions arising out the “takings clause” is - what is public use? Sometimes that is an easy question. A public park, or a courthouse makes it easy. In Kelo though, the city wanted to take the properties and give it to a private corporation for a redevelopment plan. They wanted to bulldoze the old neighborhood, let Pfizer, the chemical giant, build a plant there, and put up new apartments for their employees. It was figured that this would increase the city's tax base. Pfizer, however, was given a few years  tax exemptions to induce them to come.

Why in the world would it be okay for a government to take one person’s private property and give it to another private entity – here a corporation? Some of the people involved had lived in their homes their entire lives. It just seems wrong, never mind the law.

So, why did five Supreme Court justices decide that it was okay? Like in most situations, there was precedent. In one case the court allowed the government to take property to eliminate a blighted neighborhood. In another case, Hawaii was actually allowed to redistribute the state’s land because almost three quarters of it was owned by just twenty two landowners. But, Kelo seemed like a great extension of this policy because the use would not really be public. The city just wanted to do it because they thought it might help and they claimed that if the purpose is public, even if private entitities benefitted, that was satisfactory.

The majority, including the usual swing vote, Justice Kennedy, decided that “public purpose” was good enough to satisfy “public use” in the takings clause. It was a terrible decision in my book. As strange as the Hawaii case was, the government was remedying an absurd and intolerable situation, made possible by land ownership before Hawaii was even a state, near the beginning of its existence. In the other case, the feds were using their power to get rid of a blighted area where over 64 percent of the properties were beyond repair and another 18 percent or so at least needed major repairs. Neither situation is comparable to Kelo.

As a result of Kelo, almost all the states revised their own eminent domain rules. President Bush issued a presidential order (which any president could change) essentially ordering the federal government to avoid this situation.

And what about The City of New London? Did they increase their tax base? Of course not. The redeveloper could never raise the money after the area was bulldozed, and Pfizer, which moved in – they moved out before their tax exemption was up.

Total cost to New London – 78 million dollars.

8. Wilkie v. Robbins (2007)

This case barely got any attention compared to Kelo, but it is even worse in my mind. It is one of those decisions which makes you question the separation of powers as having any real meaning.

Like Kelo, it involves private property. But, in Kelo, at least the people whose property was taken got paid something. In Wilkie, the rancher got nothing. And, it wasn’t an eminent domain case. The federal government just pretty much wanted to steal it after they screwed up.

First, I have to explain what a Bivens case is. In Bivens v. Six Unknown Agents (1971), the Supreme Court ruled that if there is an important constitutional right – in that case the 4th amendment rights to privacy – a person could sue the federal government even if there was no federal statute gave them that right expressly. And this seems only just – the constitution is the supreme law. If the federal government violates someone’s constitutional right then that person should have relief even if government doesn’t care to put one into law. However, it must be acknowledged that they haven't allowed it with every constitutional right.

Here’s what happened, as succinctly as I can put it. The government worked out a public easement with a Wyoming rancher, so that it could increase the public access to a national forest. So far, okay. But, the government forgot to file its easement, and the property was sold by the rancher to Frank Robbins, who was unaware of the easement. The government called on him and insisted he give them the same easement. He was willing to negotiate, but the Bureau of Land Management (BLM) decided he should pay for their mistake (and it was not denied he was right under the law). In fact, the agent who called told him the federal government doesn't negotiate.

So, in the words of one BLM employee, they decided to “bury” him. As put by Robbins' lawyer, here’s how they did it. “The agents’ independently unlawful actions included intentionally trespassing on Robbin’s land, inciting a neighbor to ram a truck into Robbins while he was on horseback, breaking into his guest lodge, filing trumped-up felony charges against him without probably cause, and pressuring other government agents to impound [his] cattle without cause. . . cancel[ed] the right-of-way previously negotiated with [the prior owner] that was to have run with the land, filing doubtful administrative charges against [him] and selectively enforcing others, and they relying upon these charges to deny [him the recreational use and grazing permits essential to his cattle drive business, refusing to keep the main access route to Robbin’s property passable while fining Robbins for repairing the access road that the previous owner had been allowed to maintain, and interfering with his business by ‘videotap[ing] ranch guests during [a cattle] drive, even while the guests sought privacy to relieve themselves.’”

Sickening, right? One BLM employee even retired over the abuse and testified for Robbins. Sounds like a Steven Seagal movie, right?

The court ruled against Robbins suit for retaliation by the government for his insisting on his 5th amendment right to compensation for the taking (by the way, you can argue that Robbins could have taken one for the team and that he had received the benefit without the burden of the deal, but it was acknowledged that the law was in his favor and this was a “taking”).

Despite 35 years of Bivens claims at that point, the court decided that he could not use that process, even though he was undeniably harassed by government agents for the purpose of forcing him to give up a property right. Justice Souter, who wrote the majority opinion, stated as follows, which I believe sums up their reasoning:

“But unlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands.”

This is, of course, just double speak or mere rhetoric. They were punishing him for trying to exercise a constitutional right too. In Souter's first clause, he is speaking of what the government illegally does in punishing a person for exercising the write, but in his second clause, he switches to speaking of what the government’s legitimate purpose might be. But, in both instances the government might have legitimate purpose but unlawfully punish the person. If the government is trying to maintain public support for a war, which is legitimate, it still can’t deny you your speech rights (at least, pretty much not any more). If it needs to house soldiers, a legitimate purpose, it can’t choose your living room. If the government is trying to get a serial killer of the street, obviously a legitimate purpose, it can’t plant a bug in your living room without a warrant. Just the same, it is absurd to write that since urging someone to grant an easement is legitimate, the government can harass someone into doing so.

One of the reasons Bivens type relief was not given was because most of the harassments he suffered could be or were handled by some formal administrative remedy or case. In fact, the government even charged Robbins with a felony, and he had a trial at which the jury took only 30 minutes to acquit him, and after which one of the jurors stated that they had been shocked by the behavior of the government.

Justice Souter even admitted that “[a]gency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse.” Worse, he essentially acknowledged that constitutional rights were violated, and that Robbins would have relief for some of the acts – but not the cumulative pattern of harassment. What? If it is illegal for the police to turn your power off once a day to get you to confess to a crime, – is it not illegal to do it every day and bankrupt you by making complaints and going to court.

While it is admitted that the court has not allowed Bivens relief for every type of federal violation of constitutional rights, where there is proof that a concerted effort is made to violate a person’s rights by the federal government “by a thousand cuts,” of course a right to Bivens relief should stand. At this point, now that Robbins is decided, why should any federal agency not act like the BLM did in this case? If it wants your property, it will just wear you down and out, and even if you can prove it, there is nothing you can do about it. Bad decision.