We ask too much of the Supreme Court and too little of ourselves

Remember the latest scandal at the Supreme Court?

It’s understandable if you don’t. It occurred back in the 1960s when Justice Abe Fortas resigned after it was discovered that he’d accepted a fat yearly “retainer” for life from an indicted Wall Street financier. He then, allegedly, lobbied President Lyndon Johnson, who’d appointed Fortas, to pardon the financier. But the lobbying part was never proven and the financier was never pardoned.

He also received big fees for speaking engagements funded by potential Court litigants. (No, the Clintons didn’t invent the scam of selling influence in the guise of giving implausibly expensive speeches. They just perfected it.)

In the half-century since Fortas, the Court has been scandal-free. The justices are extremely able and decent people. You may disagree with their decisions sometimes, as I do, but it’s one branch of American government that works.

To understand the Court, it’s helpful to understand the setting. Only nine justices serve at a time (or less if a vacancy is unfilled) and in the history of the Court a total of only 113 have served. They’re terrific lawyers. In private practice, they could make a multiple of their government salary.

They chose instead to serve their country on the Court because they love that service, love their country, love the Court and sometimes love their colleagues. One of the great friendships on the Court was between liberal Justice Ruth Bader Ginsberg and the late, great conservative Justice Antonin Scalia.

In the courtroom, lawyers sit at counsel tables just a few feet away from the elevated bench where the justices sit. I remember sitting so close in front of Scalia that I thought I could smell his sulfuric wit.

The lectern where lawyers present their arguments is between the counsel tables and also just a few feet in front of the elevated bench.

The bench is in three sections. At the center section is the chief justice and the two senior-most justices. On each flank is a section for three other justices. The two flanking sections are angled inward to partially encircle the lectern. Behind the bench are massive marble columns.

The effect is that a lawyer standing at the lectern feels like he is in a mausoleum surrounded by black-robed giants looking down on him. The lawyer is outnumbered, out-dressed and, in my case and most others, outsmarted.

It’s intimidating, partly by design. The power of the judiciary rests on respect.

The reason the Court has maintained its power over the years, however, is not just that they bask in the trappings of it. It’s also because they are careful not to overuse it.

As judges, they are charged with deciding the case in front of them, no more and no less. Usually (not always) they avoid inventing a new law but instead apply the law that is plainly in the Constitution or in legislation enacted by the people’s representatives.

They are very reluctant to overturn existing cases. They know it’s disruptive and unfair to change the rules in the middle of the game. The odds of Roe v. Wade — or anything else — being overturned are remote.

This system has worked well for over two centuries. But over the past few decades the job of these justices has gotten harder. To their detriment and ours, we now ask too much of them.

We now ask the Court to decide, for example, whether carbon dioxide is a pollutant and whether contraceptive benefits should be mandated for Catholic nuns. Those issues wound up before the Court because Congress refused to decide them. Instead, Congress delegated the decision to unaccountable administrators at the EPA and unelected bureaucrats at the IRS.

These are not issues of law, but issues of policy. Congress dodges them for craven political reasons. They want to avoid disappointing one or another of their constituent groups. Congress does this because it works — for Congress.

The people are not blind to this game. That’s why they overwhelmingly disapprove of Congress as a whole. But they still allow themselves to be seduced by their own representatives over and over at election time. Being seduced is destructive but seductive.

It’s a failure of democracy, and it’s our own fault.

Congress’s abdication to the Court now risks the Court’s reputation upon which its authority rests. The current justices — and also newly nominated Judge Brett Kavanaugh — are extremely talented judges and very decent human beings. But they are only so-so policymakers and, moreover, they are unaccountable to the people.

Let’s restore democracy. A good start would be for the Court to invalidate vague legislation that illegitimately delegates policy-making to unaccountable administrative agencies for review by unelected judges.

That would force Congress to make the hard policy decisions. That’s Congress’ job.

And it would force us to hold Congress accountable for those decisions at election time. That’s our job.

P.S. Noted lawyer and author Peter Wallison, who was White House Counsel to President Ronald Reagan when Reagan nominated Scalia, informs me that these issues are considered in depth in his upcoming book “Judicial Fortitude.”

(Published Aug. 12, 2018 in the Aspen Times at https://www.aspentimes.com/opinion/glenn-k-beaton-we-ask-too-much-of-the-supreme-court-and-too-little-of-ourselves/)

 

Advertisements

Please Cool the Hitler Rhetoric Before Someone Else Gets Hurt

Back when Democrats ran the country and Republicans mostly objected to how, that icon of the left, the New York Times, often got its panties in a bind about incivility.

To hear the Times tell it back then, Republican incivility was not only annoying to the Times and other Dems but was downright dangerous to the republic.

But over the past, oh, about 18 months, times have changed and so has the Times. America’s self-described “newspaper of record” went on record this month with a column proclaiming in its title that civility is “white America’s age-old, misguided obsession.”

There’s something vaguely racist in the contention that civility is just a white thing, but I’ll save that point for another day. Today’s point is that the left is candidly abandoning civility and is on the verge of embracing outright violence.

A restaurant evicted public servants because they were of the “wrong” political party. An actor on national TV shouted “f—” President Donald Trump and received a standing ovation for it. A cable TV host called the president’s daughter a “feckless —-” (I won’t type even a single letter of that one).

Yes, the incivility is bad. But the violent rhetoric is even worse.

A fake actor who’s the son of a real one stated that someone “should rip (the president’s son) from his mother’s arms and put him in a cage with pedophiles.” The former vice president boasted that he would “beat the hell out of” the president. Another actor ruminated about the “last time” an actor assassinated a president. A singer bragged that she had “thought an awful lot about blowing up the White House.”

A so-called comedienne posed for a photograph holding up a severed head in the likeness of the president. A production of Shakespeare’s Caesar in Central Park last summer depicted the slain Caesar as a tall man with wild blond hair and a red tie.

We’ve seen that violent rhetoric leads to violent acts. A Bernie Sanders supporter gunned down congressmen playing softball simply because they were Republicans.

It’s curious. To some on the left, it’s not enough to say the other side is wrong. They have to say they’re “fascists.” Depicting their severed head or advocating their assassination or even gunning them down is therefore part of a noble resistance.

Even as they compete to see who can call the president a fascist the fastest, they also imagine, laughably, that this pandering to their fellow travelers in the fever swamps is an act of courage.

Here in Aspen — the left-most outpost between Berkeley and Boston — a newspaper columnist assured his faithful that the president is a not even a human being. He’s a “hate-filled avatar” of one who is engaged in “creeping fascism.”

OK, once you’ve name-called someone a non-human and a fascist because you disagree with his political position, which of you is really the fascist?

Another columnist compared border guards to Nazis. That’s because the guards deny illegal entry into our country in accordance with laws duly enacted by large bipartisan majorities.

The implication is that this makes the boss of these so-called Nazis — namely the current president who was married to a Jewish woman, has a Jewish son-in-law and moved the American embassy in Israel to Jerusalem — just like Adolf Hitler who slaughtered 6 million Jews.

Never mind that these same so-called Nazi border guards also enforced these same immigration laws under their last boss, namely the last president, who deported more illegal immigrants than any president in history. That president apparently wasn’t like Hitler because he wasn’t a Republican.

The Hitler trope is now standard operating procedure for the left. They do it not because it works; it doesn’t. In fact, their shark-jumping usually backfires because it’s so off-putting to middle Americans who decide elections. Indeed, notice that the president’s approval ratings keep rising.

No, the reason the left vilifies and dehumanizes their opponents is because it feels good to them.

Beclowning oneself by ridiculously equating political opponents to sub-human villains, comic book style, may indeed feel good. But there are two dangers.

One is that such name-calling precludes honest debate about the issues of the day.

The second danger is worse. Not everyone recognizes that these fascism comparisons are ridiculous. Violent crazies are out there — the kind who gun down congressmen playing softball.

In Hitler’s Germany, Catholic priest Dietrich Bonhoeffer was executed for plotting to kill Hitler. He is correctly viewed today as a hero.

When the President of the United States is equated with Hitler and the mob roars its approval to depictions of his assassination, how long before a person lacking the intelligence, judgment and ethics of Bonhoeffer comes to believe that he too will be a hero if he pulls a Bonhoeffer?

I say to decent and responsible people what the New York Times will not: Please cool the violent rhetoric and Hitler stuff before someone else gets hurt.

(Published July 29, 2001 in the Aspen Times at https://www.aspentimes.com/opinion/glenn-k-beaton-please-cool-the-hitler-rhetoric-before-someone-else-gets-hurt/#fb-comment-box-272958)

Plastic Straw Feel-Goodery

Teachers here recently put children up to sending a letter to this newspaper proclaiming that “plastic straws are toxic and are destroying our planet” because they wind up in the oceans. The letter asked Aspen to ban them.

Not that I really care about straws. I don’t like straws — or vegetables or little umbrellas — in my scotch anyway.

But notice that the kids weren’t asked to make any real sacrifice. I’m guessing they too don’t like straws or vegetables in their scotch, though they may like the little umbrellas.

I wonder if the kids would have completed this assignment from theater class (I hope it wasn’t from science class, for reasons I’ll get to) if they’d been asked, say, to sacrifice their rides in mom’s gas-guzzling SUV each day and instead take that icky bus.

Aspen Skiing Co. also has jumped on the plastic bandwagon. Continue reading

We will not worship the Colorado Civil Rights Commission

The bigotry of the Colorado Civil Rights Commission earned it a spanking from the United States Supreme Court this month. Here’s the story.

A born-again Christian named Jack Phillips ran a bakery. Aware of Phillips’ heartfelt religious beliefs, a gay couple demanded that he violate those beliefs by designing and creating an artistic cake to celebrate their marriage. This was even before Colorado had legalized gay marriage.

Phillips politely told the couple that they were welcome in his bakery and that he would be happy to sell them anything off-the-shelf. But he could not violate his faith. He even offered to find them an alternative bakery for their cake (which is easy).

But the couple weren’t satisfied. They didn’t really come to Phillips for a cake; they came for his scalp. Continue reading

Here’s how I went from Marxism to conservatism

As an impressionable 17-year-old in 1973, I enrolled in engineering school at the University of Colorado in Boulder. It was the end of the Vietnam protests and the start of streaking. I did a little of both.

I did it because it seemed cool. Chicks didn’t dig guys in ROTC uniforms, and so I wasn’t one. I decided that I was instead a Marxist.

What’s more cool than dressing up in a Che Guevara costume and taking stuff from successful people you envy and giving it to your friends to make yourself popular with them, all while taking a cut of the proceeds?

It would be just like the song “Imagine” with “all the people sharing all the world.” And I would be the one to allocate the shares.

Besides, it pissed off my dad, so it had to be cool. Continue reading

Do You Want a Good Person or a Good President?

“Faith without deeds is dead”

— James 2-26

Those words were spoken about 2,000 years ago by a Jew to other Jews in their ancestral home and capital, Jerusalem. Several millennia after the founding of ancient Israel, and exactly 70 years after the founding of modern Israel, America finally moved its embassy there this month.

The move fulfills legislation passed by Congress in 1995. That legislation passed the Senate by a margin of 93-5 and the House by 374-37. Continue reading

Let’s help vagrants, not use and enable them

Alcoholics go to Alcoholics Anonymous, and they can only leave on the wagon. Obese people often go to camps where their caloric use and intake are closely monitored.

So why do we encourage vagrants with drug problems to visit “shoot-up parks” to descend deeper into their sewer of dangerous and addicting drugs?

For that matter, why do we encourage their vagrancy?

This isn’t just a big city problem. Here in the beautiful Roaring Fork Valley, we have vagrants. The Glenwood Springs Post Independent recently reported that many vagrants illegally camp on private and public lands on the outskirts of town. They litter the area, defecate and urinate on the ground, often start illegal campfires and frequently panhandle and worse.

An online commenter on the news story from Boulder reported that upscale Boulder also has a problem:

“They panhandle, camp whenever and wherever they can get away with it even in town and leave trash and human excrement when they leave. When one helping group started dispensing food and other things by Boulder Creek and the library, the Boulder Creek Path (the most beautiful area in town) became the transient hangout and smoking, drinking and camping spot. … There have also been shootings and rape there, found to have been committed by transients.”

A bad economy is typically the reason offered for vagrancy, especially whenever there’s a Republican president. But that’s not very convincing when unemployment is at 3.9 percent and vagrants are panhandling outside stores with “Help Wanted” ads in the window.

So what’s the real reason for booming vagrancy in the face of a booming economy?

Officials down in Glenwood Springs think they know the reason. It’s because various community organizations inadvertently attract vagrants by offering them free stuff. They note that other nearby towns don’t offer free stuff, and those towns have very few vagrants.

The online commenter from Boulder said something similar:

“We have a serious problem with a large number of transients, who have admittedly and openly come to Boulder from other cities because of more and better free stuff. According to some of them, they refuse to use the shelters and services offered by agencies because they don’t like the rules and often want to keep drinking.”

Don’t get me wrong. I believe that everyone in this country should be offered basic food and shelter, no questions asked. America is too rich to allow people to starve or freeze to death, regardless of the reason. If someone is starving or freezing, I personally will feed them and clothe them.

But beyond basic food and shelter, the issue becomes problematic.

Vagrants typically fall into one of several categories. They either have mental or emotional problems or they have substance addictions or, in a few cases, they just enjoy the life of vagrancy.

Here’s what they are hardly ever. They’re hardly ever people like you and me, but who have suffered a string of bad luck. “There but for the grace of God go I” may make you feel noble but, deep down, you know it’s a contrived nobility.

There’s hardly anything that could reduce me to a vagrant, and, if you’ve read this far, there’s hardly anything that could reduce you to that.

That doesn’t mean vagrants are bad people. Some are bad, some are not. But it usually does mean that they have underlying issues different than yours and mine. They need help in addressing those issues.

The ones with mental or emotional problems shouldn’t be reduced to feral humans; they should be treated in mental health facilities.

The ones with substance addictions should not be enabled to continue their abuse; they should be put on the wagon. The few who just enjoy the life of a vagrant should not be given handouts to pursue that life at the expense of society and the truly needy.

Health care and law enforcement professionals mostly agree with this analysis. But delivering real help is hard work and it takes time and money.

Casual community activists seeking their daily fix of feel-good want more immediate gratification and they want it at no cost. And some on the political left like vagrancy because they think it reflects badly on America.

Enough. Let’s stop using this problem and these people to treat our own emotional needs and for political purposes. Let’s instead help these people and fix this problem.

Let’s get vagrants off the streets and into the treatment they need. We owe it to them, to our country, to our culture and to ourselves.

(Published May 13, 2018 in the Aspen Times at https://www.aspentimes.com/opinion/glenn-k-beaton-lets-help-vagrants-not-use-and-enable-them/)

Continue reading