Month: September 2018

A Nation Tearing Itself Apart

I had to turn off the Senate hearing on the allegations of sexual assault by Supreme Court nominee Brett Kavanaugh.  Watching the hearing, I felt that I was witnessing a nation ripping itself apart and the demise of the rule of law that ensures the freedom of America.  

 When Kennedy announced his retirement, I wrote a blog post with the title of “Shitstorm at the Supreme Court”.  In hindsight, that title was a huge understatement. 

I started my law career as a defense attorney, and I’ve represented those accused of sexual offenses and I know all too well how emotionally grinding those cases are for the lawyers involved, much less the victims or the accused.  On social media, I see many of my friends denouncing Rachell Mitchell as she questions witnesses and I want to defend her because I’ve been her and I have had to cross examine victims of sexual assault.  I know how painful it was for me and how terribly conflicted it left me feeling no matter how humane I tried to be while also giving my client the zealous representation necessary in criminal defense.  I don’t have as much sympathy for the politicians from both parties who are turning this hearing into a spectacle and blatantly using it for political gain.  

I believe we are better off with the rule of law and civil trials than vigilante justice, so when I cross examine a victim of a crime, I tell myself that I am not only protecting the defendant, but the greater good. I believe we are all freer when the State has to prove ever single element of a crime before it can take our freedom and our reputations.  One of the major reasons I left criminal law was having to cross examine an 8-year-old victim who told inconsistent stories and had accused several other innocent people of abusing him. 

It is my hope that Judge Kavanaugh will withdraw his nomination, but I don’t think that’s going to happen.  I want him to withdraw because he is too polarizing a figure to sit on the Court at this point. I fear that, if he is seated, there will be a great loss of faith in the Supreme Court and that court has to be much greater than any individual.  People give their lives to protect the rule of law in our country.  Asking one very fortunate and privileged man to step aside in order to preserve the public’s respect for the Court is not too much to ask.

As I watch this hearing, I can’t help but feel that the future of the country is at stake.  I don’t mean who controls Congress or who sits on the Court, but whether we can continue to function as a democracy and as a nation.  We must find a way to step back from the intense partisan warfare that began on talk radio before jumping onto the internet and spreading like a disease through American society destroying communities, friendships, and even family relationships.  As I wrote in earlier post, democracy requires forbearance and restraint.  Just because you can pack the Court with Judges who terrify your political opponents or refuse to hold a hearing on a nominee from an opposing party president, or gerrymander election districts to ensure your party continues to win, doesn’t mean you should do it.  Such acts destroy the ties that hold us together as a nation and we get the complete and utter dysfunction we’re seeing in our government today.  History shows, dysfunction like ours leads to a loss of democracy and the rise of totalitarian rule. 

In my dreams, I would like to see Kavanaugh withdraw and another individual nominated from a list of nominees agreed upon by the leaders of both parties.  I would hope that the nominee would be an excellent legal scholar, and someone who adds intellectual and experiential diversity of the Supreme Court.  Hopefully, someone who graduated from a school other than Yale or Harvard.  Sadly, I know that I’m just dreaming, but I’m free to dream…for now.

The American Gilded Class

As I read the news reports regarding the Senate confirmation of the nomination of Brett Kavanaugh to the United States Supreme Court, I feel increasingly sick.  The whole mess is reflective of the sad state of American politics in the 21st century.  The recent allegations of sexual assault add to the ugliness in a way that’s becoming increasingly predictable in American society.  I find it depressing.  As a male who loves the women in his life, and who tries very hard to always treat women with respect, these headlines tear at my heart.  I’m torn between my desire to believe that those who wear the judicial robe, especially on our highest federal courts, are of the best ethical fiber of the legal profession, and my belief that most sexual assault claims are truthful.   I’ve been a lawyer too long to cling too tightly to either belief, but that doesn’t stop me from wanting those beliefs to be true.

I started my legal career as a criminal defense attorney, so it’s ingrained in me to think about the weakness of an allegation of misconduct or criminal behavior.  As every defense attorney knows, time favors the defendant because memories fade and witnesses disappear, which lessens the likelihood of a crime being proven beyond a reasonable doubt.  However, for the same reasons, time does not favor a person who is seeking exculpation or who has need to prove his or her innocence.  The skeptic in me wonders about the fairness of judging a 30-year event that is raised at the last minute in a highly political situation.  Another part of me fears an unethical ideologue, who may have an internal hostility towards women, deciding cases that determine the course of American law for years to come.

 However, as I read about this long-ago event, and I hear the stories of prep-school life, there is another part of me that is so tired of the “good ole boy” network that protects the privileged from their mistakes and from the legal system that they run and to whose judgments the rest of us are subject. I am weary of our nation being ruled by people who were born into a system of societal nobility that provides them with the best educations and the best opportunities while the rest of us work our asses off trying to climb the social and professional ladders as they take the elevator to the top based on a myth that they’re smarter, harder-working, and morally superior.  On paper they look great because their records are usually stellar given the protection they receive from their social class and the schools they attend. 

A friend of mine who is college professor recently shared with me his frustration at evaluating the grades of students from elite private colleges because of the well-known grade inflation at those schools where faculty must justify in writing giving any student a grade less than a B.  This grade inflation makes their graduates more competitive for admission to the best graduate programs, which in turn, increases the prestige of the private college. 

There is a caste system in our country that is driven by education inequity and the existence of a system of elite private schools and colleges.  Donald Trump, Barack Obama, George W. Bush, and George H.W. Bush, all went to private preparatory schools, as did 4 of our current Supreme Court justices.   It should also be noted that the public schools that the remaining 4 justices attended were either magnet schools or exceptional public schools.  None of our recent Presidents or current Supreme Court justices went to public schools that were struggling under-funded institutions located in poor neighborhoods.  Additionally, only 10 percent of American students attend private schools.  Clearly, graduates of private schools are grossly over-represented in the White House and on the Supreme Court. 

Of the current Supreme Justices, they all are alumni of either Harvard or Yale Law schools (Justice Ginsberg graduated from Columbia but was also a student at Harvard).  There are 205 law schools accredited by the American Bar Association in the United States, yet graduates of all but two of those schools are completely absent from the upper echelon of American law.  Justice Scalia, in one of his final dissents, noted the lack of diversity on the Court and wrote:

“the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. “ Obergefell v. Hodges, 135 S. Ct. 2584, 2629 (2015)

It’s interesting that Justice Scalia wrote these words. Scalia grew up in Queens and attended public school through 8th grade.   He was awarded a scholarship to a Jesuit High School where he graduated as valedictorian.  I see him as someone who started out as an outsider who made that extremely rare transition to an insider.  The other interesting thing about Justice Scalia is the way that those who knew him, even when they disagreed with his judicial philosophy, spoke of his kindness and friendship.  Justice Ginsburg referred to him as her best friend, and Justice Kagan became his hunting partner.  Whatever his faults, and I take issue with a lot of his decisions, his reputation as a gentleman is legendary among those who knew him.

The promise of America has been of opportunity.  Growing up we are told one of the great things about our nation is that our potential in life is not determined by birth and parental lineage.  However, when you look at who gets to run the show and make the big decisions, it’s clear that promise remains unfulfilled. 

Confirmation Chaos

I haven’t watched very much of the Senate confirmation hearings of Supreme Court appointee Judge Kavanaugh.  The few minutes that I did watch were so awful that I had to turn away and get my mind someplace else.  The confirmation hearings have degraded into a side-show spectacle of partisan politics that are undermining the legitimacy and authority of the once majestic United Supreme Court which is supposed to sit above politics and be an institution of reason that our nation can turn to with its most important and difficult legal questions.  In order to serve its role, the Supreme Court must be a court of all the people – Republicans, Democrats, Conservatives, Liberals, Progressives, Capitalists, Socialists, Black, White, Asian, the Religious and the atheist.  It is clear that many Americans, including many of our elected representatives, no longer see, and maybe no longer desire, an apolitical court.

I don’t know much about Judge Kavanaugh or whether he’d be a good Supreme Court Justice.  The truth is, it’s impossible know how well a Justice will perform until the robe is put on because, once on the bench, Supreme Court Justices often surprise us.  Consider that the most famous dissent in Supreme Court history was written by Justice Harlan in Plessy v. Fergusen, the case that, in a 7-1 decision, upheld segregation and created Jim Crow based upon the decision that “separate was equal”.  Most scholars and historians now view it as one of the worst decisions in the Court’s history.  If I had lived back then and looked at that Court, I doubt that I would have expected Justice Harlan to have been the lone dissenting voice of reason.  Justice Harlan was a supporter of slavery prior to the civil war and had grown up on a farm that owned slaves, yet he was the lone dissent in Plessy and other cases where the Court denied equal rights for Black Americans.

Also, it might surprise some to learn that when Justice Ruth Bader Ginsberg was going through her nomination process, there were those who were concerned that she might pose a threat to the decision in Roe v. Wade based upon statements she had made criticizing the decision during a speech.  Justice Ginsburg had commented that she thought the reasoning was incorrect, and that, although she agreed with the outcome, she felt the case should have been decided on equal protection grounds rather than on privacy.  These concerns did not cause great disruption in her appointment and she was confirmed by a 96-3 majority in a Congress that only had a slight majority of Democrats. Also, it’s important to note that it was Justice Scalia who recommended that President Clinton appoint her to the Court.

Speaking of Justice Scalia, it is well known that he and Justice Ginsburg became very close friends while on the Court together.   Justice Scalia, despite his clearly Conservative jurisprudence, was confirmed in a unanimous vote by the Senate that was composed of only a slight majority of Republicans.

Supreme Court appointments have become far too political and we’re seeing the result of this with this awful disgraceful confirmation hearing where  we see open warfare being waged between Senators who insult each other and many Americans in their comments. Part of the problem is that politicians are making promises to appoint judges who will produce politically favorably outcomes to hot button topics such as abortion.  This damages the process because it undermines our faith that we can come to our Courts and receive a fair hearing before a neutral judge.

The other issue that is lingering in the background of all this is Democratic anger and resentment over the Republican refusal to give a hearing to President Obama’s appointment of Merrick Garland.  Keep in mind, it wasn’t just Merrick Garland, the Republicans also refused to hold hearings on many of President Obama’s appointments to the lower Federal Courts, leaving many judicial positions unfilled.  Adding insult to injury, since gaining the Presidency, the Republicans have been basically packing the Courts with appointments of individuals, largely drawn from the ranks of the uber Conservative Federalist Society, who some feel are patently biased or unqualified judges. This unprecedented obstruction of a President Obama’s appointees, followed by gleeful court packing, has  greatly deepened the political divide in our government and our nation.  Furthermore, it undermines the dignity and the moral authority of our Judicial system.  I fear that it will take a generation before this wound is healed, provided the political divide does not consume our democracy and the rule of law before the healing can take place.

Lastly, as I listened to the Senators speak about each other, I felt a great sense of loss.  Senators spoke about each other and their political rivals as if they were discussing a foreign enemy rather than fellow Americans.  As I watch the rule of law being weakened by a profoundly dysfunctional government and witness a nation that it is tearing itself apart from within, I cannot help but feel that we at great risk of losing all that ever made America great.