Death of a Giant; Start of a Quagmire

Saturday, Supreme Court Justice Antonin Scalia unexpectedly died.  With his death, the Court lost what one observer said was the most important jurist of the second half of the 20th-century.  His death should be an occasion for great tribute and reflection on an amazing career.  The focus should be on the career of an unparalleled judge that was an intellectual giant with with a colorful personality.  However, the political world has pivoted with breakneck speed towards the reality in which it dwells - who will be the replacement for Justice Scalia and who should do the nominating.

Antonin Scalia was born to Sicilian immigrants and grew up in Queens.  The devout Catholic received a Jesuit education at Georgetown before entering Harvard Law School.  He worked as a lawyer in Cleveland before entering academia in Virginia.  He was nominated to the Court in 1986 by President Ronald Reagan and unanimously confirmed by the Senate.  Prior to, he had worked within the Nixon and Ford administrations.  His impact was felt immediately.  Less than a decade on the bench, Sen. Joe Biden of Delaware said that of all of his 15,000 votes he had cast, his biggest regret was in confirming Justice Scalia because "he was so effective."  

Justice Scalia declared himself an originalist, a textualist when deciding cases.  He considered it his goal in life to reinforce the Constitution as it was originally designed and written.  A judge should do no more or less.  He was bombastic, sarcastic, biting and had the ability to reduce the arguments of lawyers before the bench into a jumbled mess.  His rapier wit was seen most often in his interactions with the aforementioned lawyers as well as in his decisions - particular when he wrote for the dissent.  His writings on the Affordable Care Act in dissent should be required reading for those who feel the law is dull or not relevant.

Some people loved him, others feared and hated him - mainly because they could not out think or out maneuver his points.  He was seen by many who did not know him as only a conservative judge who saw things through that prism.  However, he called himself neither a conservative or liberal - simply constitutional.  He was also not afraid of others who held differing opinions.  His long-lasting friendship with colleague Justice Ruth Bader Ginsburg, a noted activist judge, was testimony to his love of debate.  One law clerk, who Justice Scalia often referred to as his token liberal, said the judge insisted that he needed minds like the clerk to debate his positions - he needed the intellectual challenge to make sure his points were on target.

Now that this historical figure has passed, the political reality does not allow for proper mourning or honoring.  The Senate Republicans have said that nothing will be done in the way of confirming or hearing a new appointee until the next president is in place.  The Democrats, led by Harry Reid of Nevada, have insisted that President Obama should nominate a replacement for Justice Scalia and that the Senate has a Constitutional duty to honestly and in full-faith consider such a candidate. While I would never side with Harry Reid on purpose, it does seem a bit childish for the Republicans to refuse to hear a candidate from the president.

However, the Democrats are being disingenuous.  Their shameful behavior when President Reagan appointed Robert Bork is a great example.  So, I'm more than a little cynical and suspicious by the "outrage" of the Democrats.  The Republicans, on the other hand, are at a precipice.  Several senators, led by Marco Rubio of Florida, have stated that there is no way that the upper house will consider a nomination.  What happens if the president proposes a moderate?  The Republicans stand to lose - not just in the precipitous fall in public opinion of the Senate but also in the general election in November.  The party needs to tread carefully.

Justice Scalia was a giant of a man - intellectually, influentially, judicially.  Justice Ginsberg said that his critiques made her a better judge.  The two, diametrically opposed to one another, were nevertheless close colleagues and friends.  They typified what is possible even though political differences are sharp.  The last thing the Republicans need is to act petulant.  Mimicking the poor behavior of politicians past is not a recipe for any kind of success.  They should do their jobs, do it with honor and the public will follow.

In Defense of Expression

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.  The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

            Louis B. Brandeis, 1928

When the Anti-Federalists grudgingly accepted the U.S. Constitution in 1789, they did so with the caveat that certain liberties be included in the document.  These would be liberties that were not susceptible to the whims of the government or other forces.  One of those liberties was the freedom of speech.  I’ve written often about the subject, both its importance and its limitation.  It is a passion of mine and one that is increasingly under attack.  It is, at present, our most endangered right.

In 1644, writer John Milton addressed the Parliament to oppose a bill that would heavily restrict what the country’s authors could and could not write about.  The speech, detailed in Milton’s Areopagitica, is considered one of the finest defense of expression.  It is a damning account of the writer’s belief that any “standardization” placed on writers could create consensus and intellectual laziness because faith and knowledge will not have the opportunity to “exercise itself.”  What Milton is talking about is that any limit to expression, be it written or oral, is a two-way bondage.  On one hand, it prevents from one the chance to express themselves but, on the other hand, it prevents the majority the chance to strengthen their own position by listening to others.  Knowledge cannot be improved upon unless it is challenged and forced to defend itself.

The Founding Fathers understood the importance of the freedom of speech, given its prominence within the First Amendment of the U.S. Constitution.  Economist and philosopher Rosa Luxemburg referred to such a freedom as the right of the dissenters.  Freedom of speech only for the loudest or the most powerful is no freedom at all but a tyranny.  People who exist in such bubbles are at risk, as Christopher Hitchens once said, of taking “refuge in the false security of consensus.”  Individuals who only listen to like minds, who only watch like presentation of news or information, who refuse to hear or attempt to shout down any contrary point of view are ultimately dooming themselves. 

Such people are being witnessed throughout our country, on campuses from Yale to the University of Missouri to many others.  The situation at Yale University has been most publicized because of a viral video showing one out of control student yelling and cursing at a university administrator who had sent an email to consider others before deciding on a Halloween costume.  To some students, it was not enough to “encourage” others but to demand that no one wear a costume that could potentially offend someone or violate someone’s “safe space.” 

When you hear stories about this, it is enough to shake one’s head.  What many of these students are going on about when talking about “safe spaces” and the like is a demand to go through life un-offended.  In their young lives, they have either never been told or have chosen to forget completely the lesson about other ideas or words, particularly if they don’t like them.  What is offense taken?  In my twenty years as a teacher, as a former Marine, as a Jew, as a guy of size, I’ve heard many things in my life that would be deemed offensive.  However, I learned quite early that it does not matter what is said.  Unless it is true, what do I care?  It is not surprising that many have characterized these “crybullies” (not my word) as entitled and spoiled. 

A person should have the right to wear whatever they want as a costume or in an arena of ideas, be able to say what they would like.  Does such a right protect one from criticism or counter-ideas?  Unequivocally, the answer is no.  However, to stage protests that prevent the free expression of ideas is a dangerous trend.  Such rights have emboldened oppressed people for centuries in this country.  As many of these protesters are people of various races, it is even more perplexing because a commitment to freedom of expression has allowed one civil rights’ movement after another to be born, prosper and ultimately, succeed in this country.

I have strong opinions about freedom of speech.  There are limits however, outside of those very few exceptions, the right to express oneself in either offensive or banal terms is unassailable.  The Constitution says that the government was created to “secure the Blessings of Liberty.”  Secure, not bestow or create but secure.  That means the rights pre-date the government.  These are rights with which we are born and cannot be taken from us by government.  Let’s hope mob rule does not do the job.  

In Search for Spirituality

I was born to a Jewish father and a Christian mother.  I’m the child of two faiths, two cultures.  Growing up Christian, I remember moments of crisis.  I remember as a small child questioning the notion of God and being quite upset about it.  My father said my fears and angst were a sign of my faith – without it, my questions would not bother me.  In short, it is appropriate to question.  Today, I question again. 

I’m a Christian but I find no comfort in the faith, no spirituality.  Going to church today is to be subjected to a cacophony of noise.  There is no silence or time for reflection and contemplation.  Most churches are saddled with bands and speakers, ministers who are over-demonstrative and emotional, standing amidst screens with rolling graphics and words.  Through the din, it is impossible to connect with God.  It is likely churches have never been this way (it is a “service” after all) but certainly, the capacity for spirituality and connection has grown dimmer in recent decades.  In the noise, there is also desperation as the faith seeks to find members from an increasingly distracted generation.  

It has been said and practiced by many, across cultures and faiths, that reflection and quiet contemplation leads to strength.  The more one studies and the more one reflects, the stronger one grows.  In this practice, there is an activism toward empowerment.  However, some of today’s Christians seem to have gone in a different direction.  Many churches do not encourage the bringing of the Bible – the written explanation of the faith.  Some Christians sing overly emotive songs and look pleadingly to the heavens, in some cases with tears in their eyes and hands in the air.  Adherents to this practice might call this a sort of spirituality but it is only a passive attempt to search for it.  In doing so, I’ve always looked upon this as weak.

In my study, I see something strong in my faith, something empowering.  However, the way some practices are done seem to truncate that trait.  I’ve wondered what a church service would look like were we able to actively and spiritually approach our faith.  I’ve imagined a church with two rooms.  One room is for quiet prayer and meditation.  Buddhists say that only this can strengthen and correct the mind.  The other room is for reading and studying, discussion and debate.  In one room, one actively strengthens their faith through a pursuit of connectedness.  In the other room, it is done through a pursuit of knowledge and wisdom.  Unrealistically, it would do away with the “service” as we know it today.

The problem for me is that my type of church doesn't exist.  Historically, Christians have never done this.  Perhaps, my troubles are only my own but I don’t think so.  I would love to feel comfortable in a church however, in recent decades, the outside world and the things from which the church is to help us find solace now rests within the walls.  It says in Romans, Do not be conformed to this world but be transformed by the renewal of your mind.  Yet, I cannot find a church that has not been unalterably transformed by the world around them and the so-called necessities of reaching modern audiences.  Instead of showing these Christians the way to connect with God, these churches have conformed to the demands of how the congregants want to worship.  Sadly, it is not worship at all, certainly nothing with spirituality in accompaniment. 

Perhaps, I’m destined to seek my own path.  I don’t mind that and often, I prefer it.  However, it would also be nice to find those of similar disposition. 

Forbidden Games?

In a New York court, the state is seeking to ban fantasy league companies like FanDuel and DraftKings because they are a form of gambling.  Other states are lining up to do the same.  The industry is trying to make the argument that the fantasy sport leagues are games of skill while the states attempt to argue it is a game of chance and therefore, gambling.  Such companies have the approval of most major sports leagues and with an ever growing customer base, the industry represents billions of dollars in annual revenue.  Outcomes are hard to predict but what is certain is that the case will not end in New York.

In full disclosure and as a sports fan, I have an issue with companies like FanDuel and DraftKings because it has nothing to do with fandom.  One could say it is the anti-thesis of fandom so I’m working up a feeling of schadenfreude on the hopes that such companies are indeed banned.  These leagues are creating followers who are adherents not to a particular team or sport but to players and outcomes for the purpose of making money.  All of the noble qualities that sport possesses and the life lessons it teaches are thrown out the window with fantasy sports.  But, I digress. 

I heard a story on National Public Radio about the case and heard from one of the more successful fantasy sports players – he was able to quit his job as an accountant to do fantasy sports full time.  He said his job has nothing to do with gambling because of the skill involved.  He mentioned that about 90% of all earnings on FanDuel are earned by just over 1% of the players.  The fact that skill weighs so heavily in who wins and who loses makes it an “obvious game of skill by any definition” and therefore, not gambling.

First, it would seem that there is a distinction in some minds, partly in how the New York Attorney General’s office has defined it, between games of chance and games of skill.  This distinction, to some, seems to define what is and what is not gambling.  Gambling can certainly be both.  Take poker for instance.  A reasonable person would agree that there are good poker players and bad ones.  That same person would also agree that poker, while chances of winning can be enhanced by the skill of the player, is also a game that depends on how the cards fall.  No matter how good you are, if you get bad cards, you are not going to win.  Both of these scenarios make poker both a game of chance and a game of skill.  However, nearly all people would see poker for money as gambling. 

Secondly, each person who plays with FanDuel or DraftKings pays money up front to take part in the fantasy leagues.  The industry says that the money paid out initially by participants is simply money paid to play.  As DraftKings lawyer John Kiernan said, it is not a wager or bet and the participants are not risking anything of any real value.  If money paid to participate is not anything of “true value”, I’m not sure what is.  It certainly seems like a wager to me.  Commercials for such companies promise the chance of winning hundreds of thousands of dollars.  Is that not the whole idea of a wager – money paid in hopes of winning more? 

When you take part in a fantasy league, you are betting that the players you have chosen will play well enough for you to “win” your league – and by doing so, you will also win money.  Such endeavors are both games of skill and games of chance: much like poker.  And by any definition, the fantasy sports players are gambling.  Now, this is not an article damning gambling.  I don’t like it and don’t partake but it is a person’s choice to lose all that money.  However, I also find the practice of fantasy sports a little annoying so if the law can come down on the corporations earning billions off of this, I would not be devastated.  

Terrorism and Indecisiveness

Egypt, Turkey, Lebanon, France, Mali.  Terrorists like the Islamic State have been busy over the last weeks and months.  In their wake is a string of shattered cities and devastated lives.  For the western democracies, it needs to be a time to not just hunker down or lash out but to re-evaluate.  France’s intelligence network’s failure to pick up on the events that shattered its capital is more than that – it is a sign that things are evolving and adapting.  The West must do the same.

Gandhi was once asked whether his approach to conflict resolution would have adequately dealt with Hitler.  He said yes but it would have taken much longer.  Europe and the United States do not have time if recent attacks across three continents in the last month or so are any indication.  French President Francois Holland is increasing the militarily targeting of the Islamic State but he is also seeking to change how the French do business in-country by changing police procedures and tactics against suspected terrorists. 

M. Holland’s attempt to change the constitution to meet new security needs have faced opposition from both sides of the political spectrum.  However, he clearly sees the need for a change and he is trying to adapt to a new reality.  By all accounts, French intelligence was taken off guard by the events of 13 November.  Whether the French leader will be able to impose his will or not remains to be seen but a requirement to be on the qui vive has gripped parts of the French population. 

Regarding President Obama, he presented the most confounding reaction to the events of the last month or so.  My observations are not unique.  Many have been dismayed over the near blasé approach to the events and how the United States should respond.  The president, who days before Beirut and Paris, said that the Islamic State was contained, maintained that a change in philosophy or approach to the terrorists is not required.  The present modus operandi was sufficient and it was important not to over-react.  Yes, an over-reaction would not be prudent but certainly a re-evaluation is necessary because American intelligence proved to be as unaware as its French counterparts.  His comments from Ankara would suggest that is also not necessary.  However, there is push back. 

Former deputy director of the Central Intelligence Agency Michael Morell suggested with Charlie Rose that the president’s response needs to be on the same level as if the target was not Paris but New York City.  Combat veteran and Representative Tulsi Gabbard (D-HA) has criticized the president for failing to grasp the core element of dealing with the terrorists by refusing to use the word.  Last week, when a bi-partisan measure in Congress sought to make a seemingly common sense improvement in the screening process for incoming Syrians, the president responded by mocking Congressional Republicans as being scared of little old ladies and orphans.  This was in the face of reports suggesting that at least one of the Paris attackers entered Europe posing as a refugee. 

It is a nasty world out there and it will not improve any time soon.  It is not just international groups like al-Qaeda or ISIS but also regional groups like the Mourabitounes, the West African terrorist group that attacked the Radisson hotel in Bamako, Mali.  The rise of these groups would be a difficult challenge for any president but our commander in chief needs get into a locked room with military and terrorist experts and consider a new way of doing things.  The West was surprised by the Parisian attacks.  We need to find out why and contemplate a new approach.  The enemy already has.

The (Lost) Art of Compromise

All government, indeed every human benefit and enjoyment, every virtue, and every prudent act, is founded on compromise and barter.

            Edmund Burke, Irish-born English philosopher and political theorist

This past weekend, Speaker of the House John Boehner announced he was retiring from the Speakership and leaving a congressional career that spans a quarter of a century.  Members of Congress in general and the Republican Party specifically greeted the news with a certain amount of enthusiasm.  Mr. Boehner was seen as an obstacle to the absolutism that is championed by some politicians – mainly from the Tea Party wing.  Their lack of political maturity and understanding of their profession has caused undue stress among conservatives and in the process, has damaged the philosophy’s perception. 

This is not an article about Mr. Boehner or his legacy.  This is about the job of a representative.  This has more to do with a key ingredient to democracy.  Since the early days, the country has been a philosophical battleground of differing ideas based on differing perceptions and understandings of the Constitution.  As these groups have circled one another, trying to get one piece of legislation passed after another, they have accepted the notion that it is impractical and potentially destructive to try and get everything one wants. 

As George Will once said, democracy is the government of persuasion and insofar as that is true, it requires patience and compromise.  The absolutists in Congress today, with whom I largely agree, are following a policy of brinkmanship.  An all or nothing approach is rarely the right way to go about it.  There are only a few times in U.S. history where that was the case.  Mostly, representatives are tasked with struggling to create something out of the half-loaf. 

Whether the Congress and the Republican Party are any better off with the retirement of the Speaker is one for statesmen to argue.  Whether the country is better off with a contingent demanding that everything go their way simply because they are in a majority, I would say that is an unequivocal “no.”  Republican supporters throughout the country have seen various attempts by the party to muscle through legislation and fail miserably.  They have seen party attempts at forcing “doomsday” choices on the other party blow back in their face.  The reason it happens is because, in part, a failure to compromise. 

Compromise can be an ugly word.  Some seem to confuse it with appeasement.  These attitudes are heightened by people looking at Democrats – in Congress and in the White House – as a personal affront.  Democrats simply represent another, if not mistaken, view point.  To attempt to roll over them, thinking the most decisive victory is the best victory, is political immaturity. 

The American people can understand the notion of give and take as in the course of their relationships – at work, at school, at home.  What they do not understand, because few experience it, is steamrolling others with little to no regard.  With the art of compromise, one puts more pressure on the other side.  The attempt at rationality puts greater focus and more heat on the other side for an equal measure.  Additionally, compromise prevents the other side from a knee-jerk response.  Greater bipartisan support is possible for conservative ideas.

Discourse can be polemic and debates can be vigorous.  However, in the process of making laws and setting policy, the smarter play is compromise.  It is an art that is reserved for adults, reasonable and logical who understand the nature of man.  The art of persuasion requires one to understand others.  An all-or-nothing approach requires nothing but obdurateness.  It requires no thought, interaction, cooperation and, ultimately, no talent or intelligence.  It simply requires a disregard of all others who are not like you.  Conservatism is not like that and nor should politics.  It is not personal.  It is not about the individual but about the whole.

The Fight for 2016

As I watch Donald Trump in the news, this modern-day incarnation of Narcissus travels the country seemingly trying to derail his own campaign with one ridiculous statement after another.  And indicative of an age of runaway Ritalin prescriptions, some angry and misguided people are popping Mr. Trump’s missives like pills.  From a political party that can call its own the likes of Lincoln and Reagan, this vaudeville barker is muddling the message of real conservatives who could make a serious and honorable run for the Oval Office. 

A good friend, and a very intelligent one, refers to Mr. Trump as revolutionary.  I disagree.  There is nothing revolutionary, new or extraordinary about the businessman-turned-demagogue.  History is replete with fringe characters (some good, others not) aspiring for the White House – Aaron Burr in 1800, Hugh White in 1836, Henry Wallace in 1948, George Wallace in 1968 and Ross Perot in 1992.  Beyond U.S. history, a string of such people have sought power and had their supporters and popularity.  Mr. Trump does not represent anything new but he is a new incarnation of an old idea.  Appealing to our baser instincts elevates nothing and will ultimately produce nothing but more acrimony. 

For all the talk from Democrats regarding the homogeneity of conservatism, there are some varied and powerful ideas coming from the candidates who, sadly, are not being heard or so we thought.  In the last few weeks, some of the Republican candidates are making progress in the polls.  For the most part, they are also seen as outsiders without the toxic, ad hominem nature of the front runner.  As we are still nearly a half a year out of Iowa, it is hoped that some of these candidates will be able to dispatch Mr. Trump and allow him to return to whatever he was doing a year ago.

Recently surging in the polls is retired surgeon Ben Carson.  In debates and in conversations, he has shown a serious, quietly humorous and mature voice on the campaign trail.  As the head of the Republican National Convention said, I’m not sure about one who has no political experience gaining the nomination but he stands as a respectful and thoughtful voice.  His measured and articulate position on why the Affordable Care Act is not workable and his support for a guest worker program has earned him some attention.

Carly Fiorina is another polished and thoughtful voice in the Republican race.  The former CEO of Hewlett Packard earned rave reviews after her appearance in the matinee debate a few weeks back.  There is a bevy of videos that show Ms. Fiorina being harangued by one reporter after another on various issues but she has shown poise, what the French call sangfroid.  Her position on a simplified tax code has drawn some interest as well as her criticism of President Obama’s net neutrality policy. 

He is not an outsider but I’ve been a fan of Florida Senator Marco Rubio for a while now.  As a junior senator, he has shown a great deal of political courage for putting out on record his plan to deal with issues such as immigration and budgetary concerns.  Given his background as the son of Cuban refugees, it is not surprising Senator Rubio has steadfastly opposed the president’s moves to normalize relations with Cuba.  It might have been a losing position but his willingness to put himself out there and support his constituents is admirable.  He is young, passionate and articulate.  He represents the potential future of the conservative movement.

There is so much substance among some of the candidates in this Republican preliminary fight that it makes it all the more puzzling that Mr. Trump continues to dominate the political scene.  Some pundits believe that there is no way he will still be around come January but they are likely the same bunch who said the same things months before.  In some ways, Mr. Trump is the realization of the worst fears of cultural critics.  In other ways, he is simply the latest in a long line of societal agitators.  Let us hope that another can appeal to the “better angels of our nature.”