A person who goes to a protest dressed in military style clothing and carrying an assault rifle is not a patriot, or a freedom fighter, or any sort of a great American. They are, at best, a vigilante who lacks the most basic understanding of democracy and free speech and at worst is a thug seeking to destroy social order and the foundations of our democracy.
It doesn’t matter how many flags these nutjobs carry, or that they carry signs with patriotic clichés and catchy phrases. It doesn’t matter that they wrap themselves in a twisted interpretation of the second amendment. What matters is that they have violated the very core values necessary for democracy to function, for our communities to peacefully exist, and for our nation to be ruled by laws that apply equally to everyone.
A sitting president who condones and encourages these thuggish threats of violence, should be removed from office without delay. Any elected official who encourages armed thugs to liberate the states governed by an opposing political party in the middle of a national crisis is waging psychological warfare upon our Democracy and in my opinion is committing treason in violation of their oath to support and defend the U.S. Constitution.
Contrary to what some politicians and the know-nothing talking heads who promote conspiracy-driven paranoia say, the United States Constitution does not contain a right to armed protest or revolt. In establishing a democratic form of government, the framers of the Constitution sought to put an end to the repetitive cycle of violence that was necessary for political change in Europe at the time our nation was founded. The Framers embraced the idea of a peaceful transition of power, and that has been the established norm in American society for over 200 years. Our Constitution enshrined free speech and peaceful assembly in the First Amendment, which prohibits laws that restrain speech or peaceful assembly and guarantees a right to petition the government for redress of grievances. In creating these rights, along with regular elections, the framers rejected violence as a mechanism of change. This rejection of violence as a mechanism of change is very clear in Article 3 section 2 of the Constitution which defines treason as levying war against the states or adhering to their enemies or giving them aid and comfort.
It is only a matter of time before one of these armed protests go awry and those trigger-happy chocolate soldiers will let lose the dogs of war that they have been systematically and deliberately programmed to covet. It is impossible to know where things will go from there, but I don’t see anything good for anyone happening from that point forward.
History teaches us that democracies rarely fail in a single moment. Instead, they are dismantled over time before the eyes of citizens who fail to realize what’s happening until it’s too late. The United States is clearly following the historic pathway of other countries, including Nazi Germany, who moved from a democratic enlightened nation into an authoritarian unenlightened form of government. Nothing raises this alarm more than Donald Trump and right-wing media’s call for armed protestors to liberate their states from lawfully elected leadership by Democrats. As Harvard Political Science Professor Steve Livtskey wrote in his 2018 book “How Democracies Die”: “Authoritarian politicians cast their rivals as criminal, subversive, unpatriotic, or a threat to national security or the existing way of life.” Years of brainwashing, or conspiracy theories, or half-truths and innuendo designed to make people see themselves as “Conservative” and view their nation through a lens of “us” and “them” such that they hate other Americans, who are really not materially different from them, is fraying the social fabric necessary for us to respond to a national crisis such as the Coronavirus pandemic.
We are creeping ever closer to losing the very things that once made America great. All it’s going to take is one of these protests flaring up into a gunfight. This will likely spark two disastrous events. The right-wing militia groups, who are already looking for a justification for violence, will then likely join and the violence will expand. The President, justifying his actions by violence in the streets, an economic disaster, and a pandemic will then declare a State of Emergency, and send in Federal Troops. Elections will be suspended, and American democracy will be lost. The Republican majority Senate, eager to hold power, will block any legislative opposition, and the Judiciary, which has been packed with legal positivist judges from the Federalist Society, will go along.
Let’s hope that I’m wrong about all this, but we are following a well established historical pattern and I don’t see any exit ramps on this road.
Reading the news about American politics these days feels like I’m watching a slow motion train wreck. It’s much more than the nut job reality television personality who inhabits the oval office, it’s the whole atmosphere of combat politics being played out like some dystopian reality television show that disgusts us while captivating our attention.Entertainment politics that produces almost nothing other than tax cuts for the wealthy and division among the masses.
The latest bit of insanity has been states like Alabama and Georgia passing laws intended to criminalize abortion even in cases of rape, incest, or severe fetal deformity. Florida hasn’t joined the crazy parade yet, but it looks like we may soon go down the zealot rabbit hole as the Republican Party morphs itself into an American version of the Taliban, armed with both guns and zealotry. State Representative Mike Hill, from Pensacola,recently said he intends to submit anti-abortion legislation similar to Alabama and declared that G-d told him to stop pursuing restrictions that allowed for exceptions in cases of rape, incest, and the health of the mother.
I find it strange that nobody seems to question whether Representative Mike Hill is truly a modern day prophet.Hasn’t history shown us enough false prophets that we should at least be skeptical about such claims? Incidentally, this was just a few days before Representative Hill seemed to be in agreement with a constituent’s suggestion that Florida should enact a law providing for the execution of homosexuals based upon the constituent’s understanding of the Bible.I suspect that neither Hill nor the constituent have ever actually read the Bible.I say this because during that same town hall meeting, when bashing the Supreme Court to his constituents, Representative Hill told them that the Florida constitution doesn’t contain a privacy provision.Representative Hill is either a liar, or he’s never read the Florida Constitution and probably shouldn’t be talking about it. Article 1, section 23 says:
“Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”
As a supporter of reproductive rights, and having fought to protect women’s rights to make healthcare decisions during their pregnancies, I feel increasingly anxious about the direction American law may take in the near future on this and many other matters.
As person trained in law and science, I spend a lot of time challenging my own ideas and perspectives on any subject that I’m trying to understand, which is what I’ve been mentally doing with this and the many other bizarre political happenings of our time.
I think the answer is found in the reason there is this marriage between evangelical Christians and “conservative” politicians and pundits such as Donald Trump, Newt Gingrich, Rush Limbaugh (a group, who collectively have been married 10 times). The lack of moral compass among these men has been well documented in the press, yet they remain heroes to many whose identity is tied to biblical morality.
The common ground between these two seemingly disparate groups isn’t morality or religion.It’s the rejection of Enlightenment thinking, which I call “evangelism” and it poses a direct threat to American democracy which is rooted in Enlightenment ideals such as liberty, progress, tolerance, constitutional government, and separation of church and state.It was Enlightenment ideas which undermined the authority of the Church and monarchs and gave rise to the revolutions of the 17th and 18th centuries, such as the American Revolution which created the United States.
Evangelism is not simply a religion, but a push-back against Enlightenment thought and is an outrightrejection of science, reason, tolerance, and natural rights.It seeks to replace data driven analysis with faith and belief, progress with tradition, and universality with tribalism.
The Enlightenment was an intellectual movement during the 17th and 18th centuries that emphasized science, reason, and a belief in natural rights. The Enlightenment was a potent antidote to the religious stranglehold of the day where the Church and government were entwined and religion restrained progress and the expression of ideas.
Evangelistic thinking is what drives the Taliban and other religiously based terrorist groups to want to attack the West.It’s not that they “hate our freedom”, it’s that our science, reason, and tolerance challenge their beliefs and societal structures.Trump and the members of the fascist posse routinely reject science, reason, calls for tolerance, and any notion of natural law. In many ways they have much more in common with the Taliban than with founding fathers such as Ben Franklin and Thomas Jefferson. They are clearly anti-Enlightenment thinkers who, while not adopting Christian Evangelical religious beliefs, hold an Evangelical mindset.
Allowing Evangelism to triumph over enlightenment thought would be tragic.To say that Enlightenment thinking transformed the world for the better is an understatement. Rather than stripping us of our humanity through a loss of divinity, Enlightenment thought brought out our very best, stopped historical injustices, and gave us freedom and leisure on an ever increasing level that was previously unimaginable.
Prior to the Enlightenment, if a child was dying from disease, it was attributed to divine will.Generations of mothers prayed over their sick children to no effect.The Enlightenment brought the application of science and reason to fighting disease and sickness and, in a few generations, reduced the infant mortality rate from 20-30% in colonial times to 0.05% in modern times.In just over two centuries, life expectancy has risen from approximately 30 years worldwide to more than 70, and no country in the world today has a lower life expectancy than the highest country did in 1800.
Not only are our lives longer, but we enjoy higher quality lives than at any time in human history.Famine used to be a regular occurrence, but through scientifically based agriculture (rather than praying for a good crop) what famines do exist are largely the product of political conflicts rather than natural disaster. In the United States one of our fastest growing and most significant health problems is obesity, a disease resulting from overabundance rather than scarcity.Compared to famine, I prefer an obesity epidemic.
Enlightenment thinking brought about the end legal slavery, massively reduced racism and ethnic violence, emancipated the majority of women on the planet, and provided the highest protections in history for speech and artistic expression.All of these things were accomplished in the face of Evangelistic thinkers who argued that such ideas offend their deity and that Armageddon is about to descend.
Despite all we hear about violence and poverty, we have the lowest rates of global poverty in recorded history and the lowest rates of people dying due to violence and war in recorded history.For a detailed examination of these facts, including statistical tables, I recommend Steve Pinker’s “Enlightenment Now”.
If the United States is defined by any specific feature it is our commitment to democracy, rule by the people rather than by Kings supposedly appointed by G-d, is a product of the Enlightenment. Our nation is not a product of G-d or of any biblically ordained prophecy, but of reason, logic, science, and a deep belief in the natural rights of human beings. To state otherwise is to deny history.
Founders such as Jefferson, Franklin, and Madison were all students and followers of Enlightenment philosophers. They rejected Evangelical thought and most historians see them as deists (G-d created the world, but does not directly interact with it.)They believed that all men were created with rights, a concept known as “natural law”. We see this in Jefferson’s writings in the Declaration of Independence in which he wrote:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Jefferson is clearly a describing natural law approach to human rights, one of the Enlightenment’s values. Note, Jefferson is not rejecting religion per se, he still envisions some sort of a creator, but he’s speaking of enlightenment values.
Despite, or perhaps because of, the amazing success and transformation of our world by Enlightenment ideas, it is between Enlightenment thought and Evangelism that is the battle ground, not just in America, but the world today.Populist leaders word-wide are running on anti-Enlightenment messages, such as the anti-immigrant messages espoused by supporters of the Brexit vote.These messages appeal to emotion, usually fear, rather than reason.
We see Evangelical thinking promoted by politicians in modern America who call for “thoughts and prayers” when we experience yet another mass shooting from a crazed person with an assault rifle while our government refuses to fund research into gun violence.
While Trump is hardly a model of Christian virtue, he is deeply evangelical in his thinking and in his absolute rejection of Enlightenment values.Bothersome facts and data, such as those on climate change, he rejects out of hand, preferring instead his own mythology.Where Enlightenment values encourage a respect and fair dealing with all other humans based upon the belief in natural law, Trump and Evangelical thinkers retreat into tribalistic thinking and view foreigners and strangers as lesser.I want to stress here that when I speak of Evangelism, it may be wrapped in paper-thin religious dogma, but it’s completely divorced from an in-depth understanding of theology such that the most repeated commandment in the Bible “Do not oppress the stranger” is ignored. It is a mistake to confuse evangelism with religion. I believe that one can be religious and not be Evangelistic.
Once people abandon the demand for reason, scientific inquiry, and fact based conclusions, conspiracy theories can run rampant.Recall the alt-right conspiracy theory known as Pizzagate, where Trump supporters spread the rumor that Hillary Clinton was running a child-sex ring out of a Washington, DC pizza restaurant. Conspiracy theories are the stock and trade of propagandists such as Rush Limbaugh who is a master at innuendo based upon selective fact-picking.Of course, even Rush Limbaugh doesn’t come close to the outlandish conspiracy theories promoted by websites such as Info-Wars who convinced followers that theSandy Hook murders were staged and that grieving parents were fakers.
It is tempting to think that Evangelism is strictly a right wing philosophy, but that would be unfair.The left has its own forms of Evangelistic thought, although it has failed to achieve the political power of right wing evangelist thought.For example, the anti-GMO movement is based largely on emotion and lacks any rigorous scientific support for its claims that genetically modified foods pose a health risk. Likewise, there is very little scientific support for claims that there are health benefits to organic foods.Another example would be leftists who object to research into nuclear power as an alternative to fossil fuels. We’ve even seen left-wing conspiracy theories that the U.S. government orchestrated the September 11, 2011 attacks.Is any of this that much crazier than the American right’s denial of climate science?I believe that one very rarely finds Enlightenment thought at the political extremes because extremism is almost always disconnected from reason and logic.
In my field of law I believe we’re seeing this anti-Enlightenmentmovement in the Federalist Society which, founded in the 1980’s, now yields a lot of political clout and which promotes benign sounding legal theories of “legal restraint” and “textualism” as remedies for what they describe as “judicial activism”.Basically, the Federalist society recruits 1st year law students into its membership and then indoctrinates them into its fundamentalist legal philosophies which they claim to be the “true” and “original” way of interpreting laws and the Constitution.For members of the Federalist Society, adherence to this legal doctrine is paramount regardless of the outcome.They believe that justice is no longer a concern of the law and they believe that Courts should only recognize those rights specifically stated in our Constitution.
Our courts are currently being packed by members of the Federalist Society and I worry that we are soon to be ruled by a generation of judges who believe that they can interpret the law with the mind of an 18th century framer of the Constitution, and that emerging standards of justice are not their concern. In their minds, Courts seeking to create justice, such as ensuring fair voting districts, is an “activist” activity and that they should divorce their thinking from ideas of justice.
It may be that abortion isn’t as much about men trying to dominate women, but more about a part of a larger framework rejecting Enlightenment thought arising from a delusional belief by Evangelical thinkers that we can turn the clock back to an imagined golden time when science, reason, and logic didn’t discredit their narrative about the world and morality. Moreover, the men vs. women arguments worry me because I worry that such arguments will create division, alienating men from the up-coming battle to protect reproductive rights and Enlightenment values.
Ultimately the struggle that our nation and world faces is much larger than any single issue such as abortion. Evangelistic thinkers are obstacles to human progress who seek to return us to an age in which we are ruled by people claiming divine right rather than the rule of law. If they succeed, America may continue to exist in name, but the spirit, the ideas and values that made us one of the great nations of history, will be lost.
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.
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.
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.
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.
There’s a lot happening in the law right now, and almost none of it is good. I believe we are entering a time that history will judge to be a dark age in American law and society. I fear that we may be witnessing the demise of our democracy and the rise of authoritarian rule.
With today’s announcement of the retirement of Justice Kennedy, the theft of the appointment of the replacement of Justice Scalia’s seat from President Obama, the complete disregard of Democratic or progressive interests in the appointment process, the recent slew of 5-4 decisions, and punting of other important decisions, I can’t help but feel that American law as I have known it is ending. The future may see the election of more moderate individuals to the presidency or Congress, but the Courts are likely to be in the hands of ideologues for a generation to come. This is damage that cannot be undone with an election.
Republican obstruction created a large number of vacancies on the Federal Courts that are now being filled by Donald Trump in what is the most aggressive and politicized court-packing in our nation’s history. The individuals being appointed largely come from the membership rolls of the Federalist Society, an elitist hard-core conservative group. These appointees are young, predominantly male, and 90% white, with no person of color having been confirmed since Trump has taken office. A record number of these appointees have been deemed unqualified by the American Bar Association. Indeed, the lack of qualification has become well known through the inability of one candidate to answer basic legal questions and his admission that not only had he never tried a case, but he had never even taken a deposition on his own. Apparently, his firm didn’t trust him to handle a case, but Donald Trump trusted him to be a Federal judge with a life-time appointment.
A couple of weeks ago, I attended the Florida Bar Conference, where more than a thousand Florida lawyers gathered to discuss changes and developments in the law. I’ve never seen such anxiety among lawyers nor have I ever heard such pessimism. Time and time again I heard lawyers question whether the rule of law would remain in place until next year’s conference.
For some time, I’ve clung to the belief that the Courts would stand strong against Donald Trump’s authoritarian and totalitarian tendencies, but as I look at the decisions rendered in the past week, I realize that my hope is misplaced. To date, although lower Courts have restrained President Trump, the Supreme Court has refused to do so. Furthermore, when faced with questions such as the Colorado gay cake case or political gerrymandering the Court has effectively declined to rule by remanding the cases on technical grounds.
I believe that what we’re currently seeing is a strategy of appeasement, led by Justice Roberts, in hopes that the Court will survive this president and congress. Given that the Court has to deal with a president who is clearly overtly hostile to, and not at all restrained about publicly denouncing, any court that rules against him and who is now threatening to remove issues such as immigration from judicial review, the Court is understandably intimidated. Unfortunately, Congressional Republicans, who are also clearly afraid of incurring president Trump’s twitter wrath, show no evidence that they would back the Court in a fight with the President. Thus, the Supreme Court is fighting alone for its very legitimacy and authority. Unfortunately, one need only look at history to see that appeasing tyrants is destined to fail. Someday, the Supreme Court will have to reckon with its complicity in the dismantling of the rule of law and justice in our nation.
Here are my predictions for the future of American law and society:
Privacy and reproductive rights will be severely restricted.
We will see continued expansion of corporate first amendment rights which will be utilized to disempower and diminish the rights of workers and minorities.
Efforts to reform the voting process, fix gerrymandering, and remove money politics will be blocked by the Court.
The Court will chip away at civil rights and the Voting Rights Act.
There will be an expansion of Presidential power due to the Court’s fear of and deference to Trump and the failure of our dysfunctional polarized highly partisan Congress to meaningfully address issues or crises facing the nation. In other words, the other branches of government will shrink and cede power to Trump moving us closer to totalitarian government.
There will be decreased civil rights across the board for natural persons, while rights for business and corporate interests will expand.
Roe vs Wade will be overturned.
Consumer access to the courts will continue to be diminished and consumer protection statutes will likely be removed or greatly diminished either by Congress or invalidation by the Courts.
Gun rights will continue to expand and efforts to impose reasonable gun-control measures will be blocked by the Court.
Unless the Court stands up to limit Trump’s executive authority, it will eventually become a merely symbolic institution, lacking any real authority or input into American law,and the nation’s slide into totalitarian rule will be complete
GARDYLOO – “used in Edinburgh as a warning cry when it was customary to throw slops from the windows into the streets”
I’m not sure how my wife feels about it, but I’ve fallen in love. I know she’s aware of the new relationship and seems to tolerate it all right. My new love isn’t with another woman, I don’t think that I have the energy for such things. My new love is a small independent bookstore, The Writer’s Block Bookstore, on a side street in Winter Park, Florida. In their small rooms lined with wooden shelves they don’t carry nearly as many books as my local Barnes and Nobles, and their prices are much higher than Amazon. I like having a large selection and love to save money, but this little bookstore offers me something that is disappearing in our world and it’s the primary reason for my infatuation. This small bookstore is very selective in the titles they stock, and I’ve found that their recommendations are excellent. A bad book is a waste of time, and I’m very protective of my time. So far, they’ve delivered great me great titles that are well worth the time spent reading. This has great value to me as I often find myself searching through book stacks or amazon search results for books that are well written and appeal to my tastes. What they offer, that I’m not getting in the big stores or online is gatekeeping. The people who work in this bookstore love books in the same way I do and they’re experts in locating and recommending great reads.
We live in time when gatekeepers are disappearing while our choices are exponentially increasing. Many people, and with good reason, welcome the era of self-publishing, not just in books, but in almost all areas of life. Growing up the music I heard all came through record companies who carefully selected which artists to record and market. Back then, no record company meant that you were very unlikely to have a large audience, have your records in the stores, or be heard on the radio. Today, we can create very professional recordings in our living-rooms and directly offer those recordings to the entire world through online platforms, no matter how great or poor the music may be. This gives us more options, but I also find that I waste a lot of time searching through bad music looking for the good stuff. People talk about this as bringing democracy to the marketplace. For news, we used to rely upon journalists who largely operated under the supervision of publishers and editors. Today, we have news aggregators that learn our preferences and send us stories that reinforce our world view. Setting up an online newspaper or a YouTube News Channel is so easy that any teenager with a smartphone can do it and potentially draw a large audience. Our choices have expanded, but we’re no longer sure who to believe.
For me, this begs the question: What are the pitfalls of expanded democracy? I’ve lived my life being told that everyone should have the right to vote and that all votes should be counted equally, that we should empower the people to choose, that there is wisdom in the people, and that we should expand access to the podium. Until recently, I never questioned this. Power to the people has been my mantra. But what if I am wrong? Is this the right approach in all parts of our lives? I recently listened to a speech by late Supreme Court Justice Scalia in which he talked about the difficulty democracy and how easy some things become with a totalitarian government. I think this is a good question.
Should we apply the democratic process more broadly? If we’re flying on airplane, does it make sense to allow the passengers to vote about how to handle an unexpected thunderstorm along the flight route? If you’re on the table in an operating room and you start bleeding unexpectedly should the input of the scrub tech be given equal weight to that of the surgeon? If you’ve been arrested and are in jail, should you take legal advice from the other prisoners or your lawyer (I’ve seen this one more than once and it rarely ends well).
I think gatekeepers, people with experience and knowledge that the general public lacks, have great value and there times when we need their counsel and to empower them to act on our behalf. Certainly, it’s a balance, but we need to be aware of the short-comings of the democratizing our society. Not all voices are the same and should be given the same weight in all situations.
The framers of the Constitution were afraid of the popular vote, which is why we have a republic rather than a true or pure democracy. When the Constitution was first written the vote wasn’t extended to everyone. Only wealthy white males voted. Yes, it was racist and sexist, but it was also elitist. Even under that paradigm, the President was not a direct election. In the past 200 years we have greatly expanded the vote to almost all adult citizens, which I believe is a good thing. However, our choice for President has been largely under political parties control who selected their candidates. It was virtually impossible for an outsider to run a competitive campaign. However, the power of political parties has been diminishing for the past 50 years with the rise of popular vote primaries that took selection of the candidates out of the back smoke-filled rooms and made the party conventions more ceremonial than functional. We saw this in the most recent presidential election where Donald Trump ran and was elected as a Republican party outsider. Although most Republican party leaders feared Trump and the damage he would inflict upon our Democracy, they were powerless to stop him. Likewise, Bernie Sanders, who has historically been an independent, came from outside the party and nearly became the Democratic candidate. The impact of Super Delegates in the Democratic party, who make up 15% of the convention votes and are not obligated to follow the votes of their state helped ensured Sander’s defeat, reinforcing the party’s role as gatekeeper. The Republican Party also has superdelegates, but they make up only 7% of the convention votes and are bound to their state’s primary votes.
However, in our Court system, where the framers envisioned unrestrained juries and contested trials, democracy is in rapid retreat. Civil jury trials, where we allow the average person sitting as a juror to weigh facts that decide a case, are becoming increasingly rare. For many years most written contracts that we use for everyday transactions have included a waiver for jury trial. More stunning is how we’re doing away altogether with our civil Courts through binding pre-dispute arbitration agreements and class action waivers that take away the right to even enter a courtroom. What is different from the Courtroom than the ballot box? I think it’s the fact that when the average person enters a Courtroom to tell his or her story of being wronged, they have a lawyer as their gatekeeper who knows how to tell their story in a way that’s effective.
What’s the future of democracy in America? I don’t know. Maybe it will be that more democracy and removal of the gatekeepers is a good thing. However, I do know that I would pretty nervous if I were on a plane where anyone could become pilot, regardless of qualifications, through a popular vote. On the other hand, if you gave people the choice of 3 experienced, trained, and licensed pilots, I’d feel better.
Much to my long-suffering wife’s disappointment, there is no law against a person farting in a bed occupied by two people. However, as she is inclined to remind me, generalized unwritten rules of marital bliss dictate that one refrain from offensive emissions. I value my wife and am quite content to stay married to her, so I do my best to treat her with respect and to restrain myself from breaking the norms of marital behavior.
The unwritten rules, norms, that govern and maintain peace in our lives often go unnoticed until broken. For example, if I accidentally step on your toe as I pass you in a hallway, it is expected that I will say “excuse me” and offer a moment of attention and acknowledgement of your discomfort. For your part, I don’t expect that you will sue me for battery as the result of an unintentional bump, although the law may well entertain such an action. Instead, in most cases, my apology is sufficient. We do this because it maintains the social fabric that allows our society to function despite the harms, insults, and embarrassments that we sometimes inflict upon each other. If either of us fails to play our part in the unwritten rules of our interaction, trust is broken and we are left with anger and feelings of being wronged.
Although I spend a lot time in conflict in my law practice, there are some unwritten rules that govern behavior between lawyers that make a big difference in preserving our sanity and our ability to civilly resolve our clients’ disputes. First, contrary to what you may have seen on television, good lawyers don’t fight about unimportant things and we don’t insult each other. If opposing counsel needs a few extra days to complete a response to a motion or lawsuit, it’s bad form to deny the request. When opposing counsel makes a foolish mistake, a good lawyer will avoid humiliating him or her in front of their client. Perhaps most importantly, we don’t lie to each other. A lawyer who breaks these unwritten rules will soon find him or herself ostracized within the legal community and judges take a very dim view of such behavior.
Behavior norms and restraints are rapidly decaying in American government. Harvard Political Science professors Steven Levitsky and Daniel Ziblatt in their recently published book How Democracies Die provide a detailed history and warn us that loss of democratic norms and restraints is historically associated with the collapse of democracy and the rise of authoritarian rule.
A dysfunctional president, a bad Supreme Court Justice, or an indentured Congress might give us poor policy and temporarily strain the boundaries of our democracy, but they are unlikely to cause the demise of democracy or give rise to authoritarian rule. However, the loss of unwritten norms and restraints on our behavior towards one another increases the polarization in our society and in our government, which is measurably leading to the breakdown of democracy.
This is not a party issue or an issue of conservative versus liberal or of Democrat versus Republican. This is about whether we continue to exist as a democracy. In the time that I’ve been writing this piece, the news has exploded with comments between two prominent politicians from different parties who are arguing about who would win a fist fight. This type of rhetoric is ridiculous and is destroying us. Playing “hardball” with a “the other side is the enemy who must be destroyed at all costs” mentality is what happens when democracies are failing. We need to put a stop to calls to lock up political rivals and stop delegitimizing anyone outside our camp or who challenges an idea or tradition. Such calls are a return to McCarthyism and have no place in our democracy.
American democracy is not going to be saved by our politicians, at least not as long as voters continue to mistake norm breaking, obstruction, and lack of restraint for vision, commitment, and leadership. It is up to each of us to do what we can to reduce the polarization and to turn away from those who would have us depart from the unwritten norms and restraint that are foundational to functional democracy. We have to say “enough” to the politics of obstructionism and delegitimization. We have to reject the idea that our patriotism is measured by our political party affiliation, our religion, our skin color, our ideas of public policy, or even in what position we sing the national anthem. I believe that true patriotism is measured by our commitment to each other and to the democratic norms and restraint that have historically allowed our nation to survive. The choice is ours, we can continue to fart in the bed, enraging our partners until they reach the breaking point, or we can exercise some restraint and civil behavior and maintain the relationship.
Thirty years is a long time, unless you’re looking backwards wondering where the time went. It doesn’t seem possible to me that it’s been exactly thirty years since I first moved to Tallahassee. The memories of that time are some of the best I’ve collected in my time on this planet. I was 23 years old and eager to explore the world. I’d spent the prior six years of my life working and going to school in Pensacola, Florida, a town I never wanted to live in and that I feared being stuck in forever.
I remember that I came to town, driving my 1984 Nissan Sentra, with very little money, no place to stay, an old guitar, and Princess, my Labrador retriever puppy. I carried a small tent with me and had this idea that I would tent camp for a few nights if I couldn’t find a place to stay. Fortunately, I had friends who agreed to let Princess and me sleep on their living room floor while I started my life in Tallahassee. Using the print classified ads in the Florida Flambeau, I was able to locate a room in a house with two other students whose names I’ve long since forgotten, but whose antics, such as getting drunk and covering our single telephone with pink frosting, I remember all too well.
I could only afford the tuition for two classes that semester, but I quickly fell in love with Florida State. Each day it seemed that my world became larger and more interesting. It wasn’t just the classes, it was the campus itself. Every day I was meeting new people who took my mind and imagination to new places with their conversation and the stories they shared. I worked nights as a computer operator at the Tallahassee Democrat, and this job provided me with time to consume books and fall in love with the ideas I found in their pages.
During that time, I read several books per week. One day I wandered into Rubyfruit books and met a lovely woman who I learned could be relied upon to always recommend an excellent read. I was oblivious to the fact that Rubyfruit was somewhat radical and identified as a gay and lesbian book store. I just knew they carried more interesting books than the B. Dalton’s at the mall and they always greeting me warmly.
It was such an exciting time of growth, exploration, and everything that is wonderful about being young and free. I remember the afternoons spent fishing from a rowboat on lake Talquin where I would always see a huge old alligator laying in the same spot in the shoreline grass. I remember exploring the dirt roads and trails of Apalachicola National Forest and a glorious afternoon my brother and I spent swimming in a sinkhole with our young dogs. More than places, I remember meeting new friends, a few who continue to be in my life to this day.
To be sure, there was plenty of struggle. Money was always short and would be for years to come. The guitar I’d brought with me landed in a pawn shop when I hocked it to pay my rent. My progress through school was slow and my grades were less than impressive as I spent too many hours working to support myself and pay tuition and socializing with an intensity that I had never done before or since.
Mostly though, I remember people who I met along way. Intimate friends and passing strangers who enriched my world with their wisdom, kindness, and stories. Jack, the hot dog guy from New York, who used to stand in front of Strozier library selling all beef hot dogs from a little stand and who always had an encouraging word for me. I remember Virgil Goedkin, a chemistry professor, who helped me figure out a way to stay in school when money was tight and who was the first person I ever knew who died of AIDS and who was one of eight members from a family of hemophiliacs who died from the disease. I remember Dan Borato, my clinical psychology professor, who I thought was crazy, but who I’ve since learned was so wise that I still quote him to this day. I remember wandering into a musical theatre play while walking around campus one night, thinking it was one of the coolest things I’d ever seen, and there began a love of live theatre and performance that endures. And there is so much I could write about FSU Hillel, where I found community and deep friendships that continue to this day.
Many old Tallahassee landmarks have disappeared in the past 30 years. The old dairy on Monroe street is gone, which was across the street from the Albertsons, which is also gone; the Brown Derby Restaurant was still open and located in the parking lot next to Tallahassee Mall when I came to town. Morrison’s cafeteria was in both malls and my friends and I would often go there for cheap meals. The Barbershop in Northwood Mall cut my hair for years. I remember great times with friends at Buffalo Wings and Rings, sitting on the second story balcony overlooking Pensacola street before it was rerouted around the stadium. I remember the FSU Stadium as a simple steel structure and being able to simply walk in and stand on the field during a semester break. In 1988 you should still drive down Woodward street, right through the middle of campus, and I don’t remember any parking garages at FSU back then. When I registered for class I had to use this awful dial in phone system that was always busy, and it took hours to get through only to find the class you wanted was already full. It’s a testament to our determination and grit that we got registered for any classes at all. I remember when the old airport terminal was still in use and when TCC was a small unimpressive community college that my friends sometimes called “Tee Hee Hee”, even when they were taking classes there.
It was inevitable that my life would progress and that my youth would give way to adulthood, and then to middle age. Over the years I’ve lost a lot of hair, put on a few pounds, adopted some great dogs, and gained a wonderful wife. I’ve had careers in law, technology and nursing as I’ve wandered the planet in search of purpose and direction. My life has given me opportunities to do things that I never anticipated, such as flying airplanes, sailing boats, and travelling to places like Israel, Hawaii, Alaska, France and the Galapagos. So many things have happened that I never imagined back in those days.
Looking back I can see that time has taken its toll. Not all my friends survived our wild days and we didn’t all make it to middle-age, but I carry their memories in my mind and in my heart. New friends have come into my life to fill those spaces, but never truly replacing the ones who are gone. Jack, the hot dog guy is gone, his stand replaced by a commercial vendor in a little building. Rubyfruit Books gave way to Borders, which gave way to Amazon. Indeed, print books now seem to be losing to digital media. The last time I was in Strozier library, the entire bottom floor was computer terminals and the upper floors, where the books are kept, was completely empty. But for every loss, there has been something positive. Locally, I love the new Cascades Park and the St. Mark’s bike trail. T.C.C. has grown into an amazing school. No more terrible phone registration, students now register online and even take classes online. Tallahassee now has a rather handsome, although nearly empty, airport terminal.
These days, I watch my young nieces and nephews, and the children of my friends, launching into the world, and I remember that time 30 years ago when I stepped out into the world. I hope that their experiences will be as amazing as mine were and that they’ll find the love and beauty in the world that welcomed me so many years ago. I hope that they’ll find friends who share the journey of their lives with them. For me, living in a society that often feels youth obsessed, it’s tempting to think that my time is done, but that’s not true. There are still adventures waiting if I have the courage take the journey. There are still friends to made, books to read, stories to shared, and life to be lived. Someday it will be over, but right now as I live in the body of a middle-aged man, that young man who wanted to explore world is still living inside me, and he allows me to see wonder in the world and possibilities that I didn’t see the day before.
Is it simply a coincidence that the wave of women coming forward reporting sexual harassment and other inappropriate behavior comes approximately a year after a woman, Hillary Clinton, won the popular election to the office of President of the United States, but was denied that office by the electoral college? I don’t think it is. I think that the election became a referendum on the status of women in our society and the outcome doesn’t flatter us.
We all witnessed the infamous video of Donald Trump bragging about sexually assaulting women and getting away with. Perhaps more stunning was how so many people were able to disregard this video and justify their continued support of Trump on the basis that Hillary Clinton was so untrustworthy that no sin of Donald Trump would ever make him a worse choice than her.
This really became the theme of the Trump campaign and has been the stock and trade of many pundits such as Rush Limbaugh and Bill O’Reilly. I remember watching one of the debates in which Donald Trump repeatedly called into question Hillary Clinton’s honesty and trustworthiness utilizing a common technique of abusers called gas-lighting. With gas-lighting, the abuser repeatedly states blatant lies as fact, often saying things like “people are saying”, “everyone knows you’re…” in order to sow seeds of doubt regarding the victim’s credibility. It’s a brainwashing technique that has been used by abusers, dictators, and cult leaders and is alive and well in modern American politics.
Sadly, in my life, I have seen gas-lighting used most effectively by men against women. I’ve witnessed it time and time again in nearly every setting where a man’s power is threatened by a woman. What is even more surprising is how often women readily join in and support the gaslighting of another woman who dares to step out of line. We need to recognize gaslighting for the form of abuse that it is, but I don’t see any signs of that happening.
Our culture has a long tradition of not trusting women. Most Americans who are religious practice one of the Abrahamic faiths in which the very first story in the Bible is the creation story where it’s Eve who first eats of the forbidden fruit and is often blamed for our expulsion from Eden (I would strongly argue that this is not a correct interpretation of this story, but I do think it is how a majority of people read the story). Within the creation story we see G-d seeming to endorse an subservient position for Eve: “…your desire shall be for your man, and he shall rule over you.” This preference for the masculine is reinforced in Abrahamic religions in which G-d is usually referred to in the masculine form, and in many traditions women are excluded from portions of ritual life or considered disqualified to serve as clergy. The religious message isn’t simply that women are dishonest, but that they are impulsive and have poor judgment and that when a man allows a woman to lead, it will corrupt him.
In American history the institutionalized lack of trust in women is pervasive. Women were denied the right to vote until 1920. In many states, married women were legally considered incompetent to contract and their property belonged to their husbands. The law did not protect women from sexual assault by their husbands. These are not ancient laws that were abandoned long ago. Such laws have are within living memory and were in force for the majority of our nation’s existence. The Florida Supreme Court wrote, as recently as the 1940’s: “The common law as interpreted by this Court does not recognize capacity in a married woman to contract.” Hogan v. Supreme Camp of Am. Woodmen, 1 So. 2d 256, 258 (Fla. 1941).
We are a product of our history and old biases and ideas that often lurk in the deepest depths of even the most educated and progressive minds. It’s not simply that we accept “boys will be boys”. It’s that our society carries an inherent bias against the competency and trustworthiness of women that continues to be a strong force to this very day. It’s why voters were so easily mislead regarding Hillary Clinton and why victims of sexual assault have felt often felt powerless.
Recall the Jameis Winston case, in which the woman who claims she was sexually assaulted immediately reported the incident, but the police failed to vigorously investigate the alleged crime despite the serious nature of the alleged offense. It is worth noting that when the alleged rape was first reported, the woman didn’t know the name of her alleged attacker, so I see this as more than just the local police trying to cover up for an athlete. I think the unspoken truth in that case is that the police simply didn’t take her seriously, and, if the case hadn’t led to a star football player, we never would have heard another word about it.
Many of the women who have come forward have said that they didn’t speak up because they were afraid that people wouldn’t believe them or take their claims seriously. Whenever a complaint of sexual misconduct is made, we need to take it seriously and ensure there is no retaliation against the person making the report. I’m not one to say that women never make false allegations. I’ve done enough criminal defense law to have long abandoned that idea, but I also know that we don’t question the victim’s credibility to such a degree when it’s a man complaining that he was hit by another man. I also know that this bias isn’t limited to men. One of the earliest lessons that I was taught by a very effective and experienced female criminal defense attorney was to choose as many women as possible when selecting a jury for a sexual assault case with an adult female victim. She told me, women are skeptical when another woman claims she’s been raped and they don’t feel the guilt that a male juror does.
Legal scholar and Harvard Law Professor, Alan Dershowitz, wrote: “The struggle for morality never stays won, it’s always in process”. As our society has evolved we’ve often been shocked to see what injustices we’ve turned a blind eye to and that people who we’ve regarded as leaders have become the symbols of those injustices. I think we have to remember that while evolution can be a slow process, there also times when rapid changes occur. I hope that this is one of those times and that we emerge as better and wiser people.