I Say Thou Art a Witch

The recent anonymous accusation against Judge Kavanaugh raises the troubling specter of the Salem Witch Trials. Innocent individuals, accused in a frenzy of ignorance and superstition, were tried, convicted, and put to death by a system willing to accept unreliable and difficult to refute charges.

WitchThe same holds true for the anonymous and ancient accusations of sexual misconduct against Judge Kavanaugh.

Now I would be the last person to defend such behavior. The long troubling history of sexual abuse gives one a powerful reason to find and punish such criminality. But we cannot do that at the cost of sacrificing our long-standing well-established principle of the presumption of innocence.

In cases such as this, the passage of time degrades our ability to investigate, substantiate, or disprove such allegations. Under our system, the presumption of innocence prevails. No matter how horrendous the situation, to do otherwise would eliminate any defense against such allegations.

If we will evaluate the fitness of an individual with a long public career for any position by considering anonymous allegations of conduct from high school no one would pass muster.

No matter your position on the Judge’s qualifications to sit on the bench, hysterically embracing what amounts to be charges of witchcraft and consorting with the devil is setting a dangerous precedent.

Where does one draw the line?

Such behavior, if it happened, rarely ends with high school. That’s where it starts. But absent similar behavior as an adult, it is not something we should consider. This is nothing but character assassination.

It is troubling that the letter was held onto for several months before releasing it to the FBI.  If such things are critical, why not bring it to the FBI long before the hearing begins? It sounds more like strategy than the pursuit of the truth.

The problem in this country is the widening chasm between left and right. The phenomenon is compounded by the data-driven marketing wizardry of social media. If one reads a left-leaning article, one is presented with five more. If one searches for a conservative concept, five more suggestions are offered.

The search for ideas that one agrees with becomes not just a source of information but a source of reinforcement and validation. The tragic demonization of the print media, a once invaluable source of balanced reporting, coupled with the rise of social media without any cross-checking of truth, compounds the problem.

The instantaneous nature of social media without filters and the unwillingness of many to take the time to read anything beyond a Tweet or Facebook post forces the once fact-driven print media to report “news” derived from social media.

It becomes a self-fulfilling prophecy of half-truths gaining widespread acceptance. And the algorithms feed you what you want to see, not what you must see.

The polarization of this country, more so than any sitting President, Congress, or Supreme Court Justice, will be our demise.

Left wing and right wing won’t matter if it’s not connected to the body in the middle. If we do not work together to fly we flop uselessly on the ground, unable to soar as America once did.

 

 

Notorious Ain’t the Word for Her

If you haven’t seen the documentary, RBG, do yourself a favor and see it. The story of Ruth Bader Ginsburg’s life from her birth (as a first-generation daughter born to immigrant parents), to her perseverance at Harvard and Columbia Law Schools when women were not considered intellectually or emotionally “strong” enough to be lawyers, to her appointment to the United States Supreme Court is remarkable.

Ruth_Bader_Ginsburg_2016_portraitShe argued six cases before the United States Supreme Court, prevailing in five. Each case brought gender equality closer to a reality. One case she argued concerned a man denied Social Security survivor benefits for his deceased wife. She took the case and argued successfully before the court, demonstrating that discrimination based on gender is always wrong.

The most striking point of the documentary was the deep and abiding friendship and affection she shared with the late Antonin Scalia. One would be hard-pressed to find two more diametrically opposed legal points of view. Scalia, the strict constructionist conservative, and Ginsburg, the progressive liberal, often clash in their opinions. Yet, they maintained a genuine friendship. Among the many things they share, Scalia was also the child of an immigrant parent.

Their ability to argue their positions forcefully, rationally, and with reason, yet separate the personal from their professional responsibilities, epitomizes the best balance of what a Supreme Court should be.

They perfected the art of compromise. Not of their legal approach to the law, but in their recognition it is the consensus of legal thought that produces the most sound and beneficial law.

Our Declaration of Independence derived from a consensus

Our Constitution derived from a consensus

Our Bill of Rights derived from a consensus

In the current political climate of demonizing those with whom we disagree and idolizing those with whom we agree, we deny the one thing that preserves our system of government, the art of compromise and consensus.

The case Ginsburg argued before the court where she did not prevail (cases are not won and lost, it is not a sports contest. Even the final decision is called a Majority Opinion, not the final score) concerned equal pay for women. The court decision was based on the status of the law at the time which limited the time in which a complaint could be made.

Despite Ginsburg’s argument that victims of such practices do not learn of the problem for many years, the court took a strict interpretation of the law and ruled against the plaintiff and Ginsburg.

Recognizing the inherent inequity of the law, Congress passed legislation addressing the issue, and President Obama signed the bill into law. Congress reached a consensus, and the President concurred.

The system worked.

Every party in power tries to “stack” the court with those who hold similar legal views. Often, it has been the case that justices turn out to be neither as liberal nor as conservative as expected. That says much about the character and quality of the members of the court.

If “Democracy is the worst political system, except for all the others,” consensus is the foundation for our continued survival.

A Supreme Court comprised of those with the same political leanings would do more damage than good to America. As the friendship between Ginsburg and Scalia shows, our consensus of differences makes democracy stronger.

Anything else is a recipe for totalitarianism.

On another note, President Trump once again showcased to the world his fundamental misunderstanding (at best) or his “just doesn’t give a sh*t understanding (at worst) of the Criminal Justice system.

In a Tweet regarding Paul Manafort’s bail being revoked because of a new indictment for witness tampering, Trump wrote,

Wow, what a tough sentence for Paul Manafort, who has represented Ronald Reagan, Bob Dole and many other top political people and campaigns. Didn’t know Manafort was the head of the Mob. What about Comey and Crooked Hillary and all of the others? Very unfair!

Is it too much to ask that the President of the United States understand the difference between a bail revocation hearing and a criminal trial? Something most high school freshmen could explain.

Then again, how can we expect that a man who can barely form a sentence would understand context and meaning in a legal setting?

I’d suggest the President watch RBG but, with his limited attention span, he’d miss the point.

Alabama Supreme Court Justice Roy Moore: Seeking a Return to the Dark Ages

I wrote this last year about “Judge” Roy ‘get ’em while they’re young” Moore.  If a Supreme Court Justice can’t follow federal law, how can he represent Alabama in the Senate?

This is just one aspect of a troubled, character-flawed, hypocrite. Mix in unlawful sexual proclivities, and it is frightening. Come on, Alabama, this is not the America you are part of.

 

In case you have never heard of Justice Roy Moore, he is the current Chief Justice of the Alabama Supreme Court. He’s held the job twice and lost it once.

So far.

In 2003, he was removed from office when he refused to comply with a federal court order to remove a Ten Commandments monument he installed in the rotunda of the court.

So, of course, the progressive segment of Alabama voters re-elected him in 2012.

Now his battle is same-sex marriage. He is suspended from office for sending an administrative order to Alabama probate judges telling them Alabama Law banning Same Sex Marriages was in full force and effect.

He lied. It was not.

In 2015 the US Supreme Court, in Obergefell V. Hodges, legalized gay marriage thus trumping (I love that word) any State prohibitions. Keep in mind, the US Supreme Court still had the full complement of Judges. Scalia, a staunch opponent of same-sex marriage, still sat on the court.

Even he couldn’t persuade the court to uphold the ban; law and rationality prevailed.

Moore sent the letter six months after the Supreme Court decision. He either knew the letter was not based on established law or didn’t care.

But, to Justice Moore, it makes no difference. He has God on his side. Just ask him, he’ll tell you he does. He’ll tell you that his faith is the one true interpretation. The one true path. The basis for the entire government of the United States.

He’ll tell you that the diversity of this country, the willingness to accept people as they are not as we think they should be, will be its demise.

The law be damned.

Justice Moore is the poster child of our sordid and bigoted history. Those in a position of power imposing their faith, their beliefs, their views on those with no power. The fact that someone holding such archaic and prejudicial beliefs can rise to such a position speaks volumes about the lack of progress toward true universal tolerance in this country.

It is because of people like him that we need a strong and intellectually honest judiciary. One that looks at the law and ensures its fair application. One that also abides by their decisions.

There is no better evidence for the gravity of the upcoming Presidential election than someone like Justice Moore.

Bigots embrace this man’s philosophy and seek to impose it on all by seizing power in government.

A true nightmare would be a US Supreme Court comprised of people like Justice Moore. A man who seeks to justify his own ignorance, intolerance, and lack of empathy for his fellow man by cloaking himself in a judicial robe.

I don’t know where Justice Moore went to Law School, but he should seek a refund. To the people who elected him and re-elected him, do the country a favor and skip the election in November.

In All Fairness

President Trump nominated Judge Neil M. Gorsuch for the Supreme Court. The rancor and rejection by those who oppose Trump now rises to a new level of vitriol. I place myself in the ranks of those who did not vote for Trump. I find his initial actions in office to be counter-productive at best and terrifying at worst. I have great apprehension for the near future of this country.

But, with that said, let us not forget the process of government given to us by the founding fathers. One created to weather such storms.

Let us not forget the constitutional concepts upon which these nominations proceed to Congress. They are to “advise and consent.”

When President Obama (oh where, oh where have you gone?) nominated Judge Merrick Garland, the Republicans acted like fools. Spouting all sorts of nonsense about election year nominations being improper.

No doubt someone will point out that more people voted against Trump than voted for him. They’ll suggest this as a reason he should not nominate anyone.

Nonsense. As much nonsense as blocking election year nominations.

Republicans refused to give Garland a hearing. They subverted the constitution. They knew the hearing to “advise and consent” is not about the nominee’s positions, but about their qualifications. Garland was as qualified as Gorsuch appears to be, philosophical differences aside.

These differences are not a basis to reject a nominee.

We cannot scream about violating the spirit of America with a religious test (couched in fear) that bans immigration based on being a Muslim, then seek to block an otherwise apparently qualified nominee for the court because we disagree with his opinions.

Democrats need not follow the Republican circus act. They can follow the rule of law and Senate decorum.

Quotes are like friends, we pick them because we like them. Facts are like blood relatives, often uncomfortably embarrassing. We can quote all we like by cherry-picking decisions by Gorsuch. The fact remains that on the surface he appears qualified for the position. If a Senate hearing discovers otherwise, so be it.

And that is all the constitution requires.

History is replete with justices who turned out to be much less rigid than expected.

If Justice Gorsuch demonstrates his qualifications for the Supreme Court, the Senate should advise and consent. If we demand the Republicans follow the law, and criticize them when they don’t, we must ourselves take the high road.

To do otherwise is to cast aside 200 plus years of our way of conducting the people’s business. There are those in Congress who do not care, those of us with some rationality left should.

The alternative is inertia in government.

Miranda Warnings: Why do we name monumental USSC decisions after the perpetrators, rather than the victims?

On March 13, 1963, Ernesto Miranda was arrested. The arrest was primarily based on circumstantial evidence linking him to the kidnapping and rape of a 17-year-old woman 10 days earlier.

After a prolonged interrogation he confessed. The conviction was reversed by the United States Supreme Court in Miranda v. Arizona. The “confession” was ruled inadmissible. A little known fact is he was retried and convicted again.

Every Lawyer, Police Officer, Law & Order fan, convict, and criminal alive knows the “Miranda warning”, no one knows the victim’s name.

Many probably think it was Congressional Legislation that created the “Miranda” Warning. It even became a verb in the form of “Mirandized”

“Did you Mirandize him?”

The name of a (twice) convicted rapist of a 17 year old girl became a cloak of protection, or a manner of invoking the protection.

“Hey man, I know my Miranda rights”

Ernesto Miranda himself died of stab wounds after an alcohol fueled bar fight a few years after his release from prison. On his body the police found “Miranda Warning” cards that Miranda would autograph for money.

Perhaps naming it for the perpetrators is the right thing to do, it reminds the government of their failure to exercise due care in the protection of their citizens rights.

Perhaps, by perpetuating the names of criminals, we as a people will demand better from our Police Officers, Prosecutors, and Judges.

It serves as a reminder of our failures, not a tribute to the defendant.

My original thought was to complain about the naming of decisions for perpetrators rather than the victims.

Then I realized that naming it for the perpetrators was correct, we need to be reminded of the names of evil and the benefit of living in a country that values justice for all.

And why would we want criminals to invoke the name of a Victim to insulate themselves.

My daughter aspires to a job wherein the fundamental tenet is everyone, regardless of the depravity of their act, is entitled to all the protections of justice.

Proud doesn’t even come close.

It is truly a wonderful commentary on a society that can raise individuals who can devote their lives to protecting all.

Those that can separate the person from the principle.

Justice from Justifiability

The ends from justifying the means.

So that is why I know decisions like Miranda v. Arizona and Escobedo v. Illinois are not an indication of a weakness in our system of justice.

It is not a fault that perpetrators names live on while the victims are long forgotten, but rather a reminder of the greatness of our system.

Leave the victims in peace and let the bad guys invoke other bad guys for protection.

If it ever stops, well, then we are truly in decline.