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From the Back Pew on Easter

 

Yesterday was Easter, and perhaps as it should, that got me thinking not just about eggs and bonnets, but about Christianity. 

The resurrection of Jesus is at the core of Christianity. For most Christians their religion would not exist without the concept of life after death. It is important that this particular death, the death of Jesus, did not come from “natural” causes, from cancer or a heart attack or a liver disease or from what sometimes is labeled an Act of God–an earthquake or a flood or a tornado. It seems essential that the resurrection, the new life, came after a death caused by man. It was brought about not by an individual; it was not merely a murder or an accident. It was a death exacted by society. It was, in fact, an execution. If the resurrection is at the core of Christianity, at the core of the drama is also a state-enforced death penalty. Is there meaning in the fact that Christianity flows from capital punishment? As far as I am aware, the role of the death penalty in the Easter story is under-played. On the other hand, the method of carrying out the execution, the crucifixion, which by definition required a cross, has a central role in the symbols of the religion.

Although not all denominations fetishize the stations of the cross, nearly all Christians have an image of a beaten, yet still heroic Jesus struggling to carry the cross to Calvary. And every follower of Christ has looked in wonder at representations of Him on the cross, which, whoever the artist, are strikingly similar. He no longer can keep his head erect; it slumps to the side. He bears a crown of thrones and a wound in His rib cage. Stripped of all but a loin cloth (where did that come from?), He is dead or nearly so, but still powerful with a muscular torso and manly shoulders. Even in death, He is majestic.

Sermons and hymns almost rhapsodize over the agonies of the cross. Nails pounded through flesh, muscle, and bone into the wood. Hanging by the outstretched arms until death (mercifully) came. And this suffering, we are told, was for us, for our redemption, because of our sinfulness, so that we can have everlasting life.

As a boy, I felt that if this suffering were for me and my salvation, Jesus’ agonies had to be unique. How else could His crucifixion work this wondrous change in the future of mankind if that pain and torture were commonplace?  Of course, I knew that two others had been crucified with Him and must have suffered similarly, but these deaths were merely an accompaniment to Jesus’ crucifixion. It was confusing, then, when I learned that this mode of execution was not unusual and saw depictions of legions of men nailed to crosses. Many others, I realized, encountered a physical pain that had to be identical to that which Jesus encountered. If the agony of Jesus was supposed to mean something to me, did the agony of these countless others have special meaning, too?

Although I do not (fully) understand the ecclesiastical reasons for it, Jesus had to be executed for His resurrection to lead to the belief in Jesus’ redemptive power. The crucifixion, however, was not unique to Jesus and many suffered it; therefore, His death did not have to occur on a cross. But would it matter to Christian belief if a different form of capital punishment had been used? Perhaps it is important that the form was slow and agonizing so that we can grasp His pain and sacrifice, but Jesus apparently died a relatively quick death for a crucifixion, as indicated by the centurions’ surprise that He was no longer still alive. But if prolonged agony was important, even a quick form of execution like beheading or a less gruesome form like poisoning could have been preceded by lengthy flagellation and mutilations. And, of course, other horrific execution methods were also used then, such as stoning, impalement, starving, crushing under rocks, burying alive. My question: What if crucifixion had not been used, but a different form of execution was? Certainly powerful symbols of Christianity would be different. Would that make any difference to Christianity itself? Is belief actually influenced by iconography, and if so, how?

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Snippets

The news reported about a scientific study, contradicting other studies, that concluded that when genes are taken into consideration, the moderate consumption of alcohol has no cardiac benefits. I, being a good, modern American, did not try to understand the news report but, instead, simply ignored it as I picked up my glass of Single Barrel Bulleit.

At my age, if I sit for thirty-five minutes, only one part of my body doesn’t stiffen.

With the cognitive and physical limitations of my age, I am only good for twenty minutes straight at anything. I can’t tell you how much the spouse laughed when I said that.

Sarah Palin had not run for an elective office in more than a decade, but she has now announced as a candidate in an Alaskan election. Does that mean that she finally learned that her family did not want to spend more time with her?

He announced as he entered the car words familiar to all New York City subway riders: “Ladies and gentlemen, I am sorry to bother you.” He did not tell us he was going to perform or sell candy. His pitch was simple: “I am trying to get enough money to go to New Jersey to attend my ex-wife’s funeral.” I wanted to ask, “You want to make sure that she is truly demised?”

“We often forgive those who bore us, but we cannot forgive those who find us boring.” La Rochefoucauld.

I recently learned that I have played Rochambeau (or roshambo or ro-sham-bo). You have probably played rock paper scissors, too.

The Newsmax host discussed the recent Brooklyn subway shooting and labeled New York City a third-world country. This was strange. The network broadcasts from Manhattan. The host then went on to mock a billboard he said was put up by NYC Mayor Eric Adams that contrasted New York and Florida by saying a person can use “gay” up north. The Newsmax guy then said, “That’s not true. You can say ‘gay’ in Florida and you won’t get shot on a subway in Florida.” Duh! Is there a subway in Florida? Perhaps he was counting the monorail at the Orlando airport. His statement, however, sent me to the internet for homicide rates. New York City had 485 murders in 2021, up from 468 the previous year. This was a rate of 5.5 murders per 100,000 population. The Florida homicide rate was slightly higher than New York City’s. Yes, slightly higher with over 1,500 murders for a rate of 5.9 per 100,000. In addition, more than 3,600 people died in traffic accidents in Florida in 2021. It is the third most dangerous driving state in the country. In 2021, 274 people died in NYC from traffic fatalities. The Florida traffic death rate per capita is about six times higher than New York City’s. You don’t lessen the chances of suffering a violent death by moving from New York City to Florida. You increase them. And, while extolling Florida, the Newsmax person failed to mention Parkland (seventeen murdered) or the Pulse nightclub in Orlando (forty-nine killed).

Eliza Reid, Secrets of the Sprakkar: Iceland’s Extraordinary Women and How They Are Changing the World wrote that Icelanders have a saying about the importance of knowledge: “Blind is the bookless man.”

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The Judge Ain’t No Umpire

          Americans believe that Supreme Court justices are biased and rule in line with their personal ideologies and preferences. There are many reasons for these conclusions. When justices such as Amy Coney Barrett tell us how unsullied they are, as she did recently, instead of just going about their judicial work, we can’t help but think about Gertrude and doth protesting too much methinks. But the American skepticism has other roots. Consider the present Chief Justice.

          John Roberts in his confirmation hearings described the job in baseball terms: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”

          Roberts has been mocked for this statement, which revealed ignorance or disingenuousness, and since Roberts is smart, the latter is inferred. The Constitution contains numerous phrases that need interpretation, such as “direct taxes,” “the executive power,” “privileges and immunities of citizens,” “the due process of law,” and many others. Deciding cases involving such language is not the same as determining whether a batted ball is fair. Suggesting an equivalency between the umpire and the justice was an attempt to mask the inevitable values and policies that are involved in judging. While umpires do not make up the rules as the game progresses, Supreme Court justices in essence do. Issues are before the Supreme Court because they have not been decided before. If in deciding a case the Court must determine what is interstate commerce or what infringes the free exercise of religion, it is setting down that rule for the first time. It is making up the rules as it goes along.*

          The choices justices make are not inevitable. Legal scholar Sanford Levinson was correct in saying, “There are as many plausible readings of the United States Constitution as there are versions of Hamlet, even though each interpreter, like each director, might genuinely believe that he or she has stumbled onto the one best answer to the conundrums of the texts.” Thus, an interpretation will never be entirely objective. Justice Benjamin Cardozo: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thoughts and actions. Judges cannot escape that current any more than other mortals. Every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.” Justice Louis D. Brandeis made the same point: “I believe that our judges are as honest as you can make them. But like all of the rest of us they are subject to their environment.”

          Judges are not gods. They cannot be purely objective, and like the rest of us, they cannot know everything that influences a decision. Cardozo again: “All their [judges’] lives, forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions.” It is arrogance, chutzpah, or naïveté to proclaim objectivity for yourself and others as Barrett did, and the justice who unquestioningly believes in or promotes such objectivity is fooling herself. Justice Oliver Wendell Holmes, Jr., said, “It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seems to him to be first principles are believed by half of his fellow men to be wrong.”

          Justices without awareness of the limitations of their objectivity who do not practice what should be the accompanying humility are dangerous because the justices not only make up the rules, they make up the final ones. As Chief Justice Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” Or as the more acerbic H.L. Mencken defined: “Judge—A law student who marks his own examination papers.”

          We should be leery—no scared—when a judge pretends his job is no different from being a baseball umpire or when another proclaims, “No judge is deciding a case in order to impose a policy result.” The first is blatantly wrong; the second attempts to obscure the fact that policy choices affect us all, including—gasp—the Supreme Court. If I may borrow a term I heard frequently in law offices, the courts, and the playing fields, “Don’t give me bullshit.” On that we should all agree.

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*         Roberts analogy was also wrong from baseball’s perspective and shows that he does not understand that endeavor either. Every fan knows that the strike zone varies in size and location depending on who is behind home plate. Some umpires have a wide zone and some a high one and so on. Perhaps whether the tennis ball landed within the service box would have been a better comparison for Roberts. Of course, now such calls are often automated and don’t require a human. I am quite confident, however, that no Supreme Court justice believes that he or she should be replaced by a machine.

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ACB Told Us So

          A week ago, Supreme Court Justice Amy Coney Barrett in a speech urged those who are concerned about the Supreme Court to consider more than a case’s outcome. “It’s not just the result that matters. You can disagree with the result passionately. No judge is deciding a case in order to impose a policy result. They are trying to make their best effort to determine what the law requires.” She instructed her audience to the live-streamed event, “Read the opinion,” and asked, “Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?”

          I am one of those who has sleepless nights and troubled naps worrying about the policy decisions made by Barrett and her colleagues. I am hardly alone. A recent poll found that only one in six Americans thinks that the Court is impartial. How could I be so wrong? How could most of you be so wrong? But I can now rest assured. “No judge is deciding a case in order to impose a policy result.” The truth has been delivered. Each and every judge is unbiased. How do I know? Amy Coney Barrett has told me so. Apparently, assertion equals truth.

          It is not surprising that Barrett is especially sensitive to criticisms that her decisions are partisan. She ascended to the Court through blatant partisan maneuverings of Mitch McConnell, and of course, President Trump appointed her because he and others believed that her decisions in certain areas would be predictable. It was expected that she would favor corporations and businesses; aid to religious schools; free exercise of religion claims that would exempt the “religious” from the legal obligations that the rest of us must observe; the limitation or elimination of abortion, contraception, and sexual rights; and the expansion of gun rights.

          The setting of her speech—the Ronald Reagan Library—may have seemed partisan, but the Library over the years has invited all the justices to keynote events. On the other hand, I did not see a non-white face in the audience. That does not mean there was no diversity. Before Barrett spoke, some notables were introduced and that showed that there were white males in attendance from several different boardrooms. Ah, diversity. (These gentlemen are likely to be happy with a current Court trend. Adam Cohen in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (2020) notes a study that the Warren Court found in favor of businesses 28% of the time; the Burger Court 48% of the time; 54% for the Rehnquist Court; and 64% for the Roberts Court. Cohen also reports that Justice Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time and that Chief Justice Rehnquist voted for defendants in non-white-collar crimes 8% of the times but in white collar crimes 62% of the time.)

          Barrett insists that it is not just the result that matters. Perhaps she is right, but if so, only barely. For most of us, the outcome is what we care about, not how the decision is reached. See post of April 4, 202: Search Results for “Originalism?” – AJ’s Dad (ajsdad.blog). But in trying to reassure us that the results come not from the justice’s personal preferences, Justice Barrett said something troubling. She urged reading the opinion and asked if it reads “like something that was purely results driven.” Purely! I should be sanguine if it is only 80% or 23% results driven? She goes on and asks us if a Justice’s opinion reads as if “designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” If it reads as that honest effort, I should stop my negative thinking.

          Lawyers are results driven. An attorney is supposed to find a compelling legal path to the outcome the client wants. The lawyer is trying to present a persuasive effort that the client’s desired result is what the Constitution, precedent, or statute requires. I would like to think the Supreme Court Justices would at least make adequate attorneys, and it would be shocking if they could not make apparently good arguments to justify their decisions even if they were results driven. (Barrett, however, did not have much of a career as an attorney; it lasted only a couple years.)

          Some people are convinced by mere preaching from on high, but others believe–cliché alert–that actions speak louder than words. Opinions justifying results that fit with the perceived policy choices of the justices are unlikely to convince the majority of us who are skeptical about the neutrality of the justices. If Barrett rules to overturn Roe v. Wade, I among many are likely to think it was a predetermined result that stems from her conservative and religious views no matter what “legal” reasoning she gives for the outcome. What might convince us that precedent and the Constitution drive justices’ votes would be decisions in which justices have gone against the preconceptions we have of them. Interestingly and all too tellingly, Barrett in her speech provided no such evidence of such an event.

          Her word is supposed to be good enough, but what do you think when someone tells you how honest or disinterested they are? A Supreme Court Justice telling me how pure in thought and motive all the justices are brings a similar skeptical reaction. Justices would be better off not making such pronouncements. If they are going to make speeches, perhaps they should just tell anecdotes—I might feel better about the Court if I found out, for example, that two of its members have argued about what has been the best heavy metal band—and not make what is really a policy statement about how divorced the justices are from making policy pronouncements.

          Even so, before condemning a decision as results-oriented, there is merit to her injunction to read the opinion first, advice that would be easier to follow if justices were forbidden from writing their opinions in more than double-digit pages, something, I assure you, will not happen. Nevertheless, reading the opinion is a good idea. So I was surprised when two days—I repeat, two days—after Barrett’s speech, the Supreme Court rendered a five-to-four decision with vigorous dissents. The decision, upon the request of Louisiana, other states, and companies in the gas and oil industry, reinstated a Trump-era rule that limited the ability of states to block projects that could pollute waterways. The decision fit my preconception of how the conservatives would rule on an environmental case, but I was taking Barrett to heart and went to read the opinion before coming to any conclusions. Guess what? There was no opinion. This came out of what is known as the “shadow docket” of the Court. The majority did not give reasons for its ruling. “Read the opinion”?!?

          I don’t know if Amy Coney Barrett has a good sense of humor. But I do know that she can be ironic.

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To Recuse or Not to Recuse? Let’s Make the Question Easier (concluded)

If the president could nominate a new person to the Supreme Court every two years, the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine from all the Justices, which has many positive benefits, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Judges on reserve would be available whenever one of the regular nine was unavailable for reasons such as illness or was recused by a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are major leaguers and are on the team, too. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for thirty years and Stephen Breyer for twenty-seven. Chief Justice Roberts and Samuel Alito have been on the Court for sixteen years while the other Justices have been sitting for shorter periods.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight, and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee, and a bigger pool of possibilities should lead to better justices.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.*

The kind of partisan games we have witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end, maneuvers that strengthened the notion that the Court is not a neutral body. Similarly, the present situation calling for the resignation of a justice as recently happened with Stephen Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it guaranteed Biden any appointments in the next four years. Instead, it should start after the next presidential election with the newly elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

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*We have seen that when they control the Senate, Republicans are willing to refuse to consider a Supreme Court nominee put forth by a Democratic president. This tactic could be prevented by requiring that the Senate vote on a Supreme Court nominee within ninety days after the nomination and that failure to act will be automatic approval of the appointment. If the nominee is voted down within ninety days, the Senate shall vote on that new nomination within ninety days and again, no action equals approval. With the third nomination, again the Senate must act within ninety days but then the nominee is approved if forty Senators vote in favor or if forty percent of those voting are in favor. The cries may go that this is not approval within the meaning the Constitution, but that document does not define “approval,” and the Senate has required that nominees survive a filibuster. If the Senate can say that fifty-nine Senators is not enough for approval, why can’t the Senate say that forty is sufficient?

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To Recuse or Not to Recuse? Let’s Make the Question Easier

Messages from Ginni Thomas to Trump administration officials indicate she believes that the last election was stolen from the former president. This has brought calls that her husband Clarence Thomas recuse himself from any Supreme Court case that might involve that 2020 election.

I leave the merits of whether his recusal is appropriate to others or for another day. Instead, I have been struck by some of the commentary that says that Justice Thomas should refuse to recuse and refers to the well-known opinion (in certain nerd circles) when Antonin Scalia refused to recuse himself.

In that case, Vice-President Dick Cheney was a named party, and an opposing party moved that Scalia recuse himself because Cheney and Scalia for years had gone on a hunting vacation together. Before launching into the twenty pages defending his non-recusal decision, Scalia pointed out that the motion suggested that Scalia “resolve any doubts in favor of recusal.” Scalia responded: “That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”

Of course, Scalia was right that a recusal on a lower court is different from one on the Supreme Court. Throughout the country, we generally have three levels of courts. The lowest is often called a trial court where a legal matter originates. The proceedings are presided over by a single judge, but there are other trial judges in the jurisdiction. If a judge steps aside, another trial judge gets the matter, and the legal matter proceeds in the same fashion as if there had been no recusal.

An intermediate appellate court sitting above the trial courts decides cases with panels of judges—three in the federal Courts of Appeals. These appeals courts, however, retain more than three judges. The panel to decide a case is drawn from the greater number. For example, the federal Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. As Scalia indicated, if a judge assigned to a case is recused, then another appellate court judge steps in and the same sized panel still decides the case.

The Supreme Court is different. Nine justices decide a case and the Supreme Court has only nine justices. If a justice steps aside, the matter will be decided by the remaining justices, or if the justices split evenly, no decision is rendered. (A tie vote means the intermediate appellate court decision stands.) Scalia used the possibility of a four-four split as a justification to stay on the case, and it is now also cited as a reason why Clarence Thomas should not recuse himself.

While lower court judges may be expected to err on the side of recusal and step off a case when there is a reasonable chance that there is a conflict of interest or the perception of a conflict, Scalia’s approach was that a Supreme Court Justice should err on the side of non-recusal. More unfairness may result, and an increased perception of unfairness seems inevitable. The unavailability of a justice to replace a recused justice, however, is remediable, and reforms should be considered.

The Constitution neither defines the number of Supreme Court Justices nor does it define how many Justices should decide a case. It merely says: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct after FDR’s failed attempt to expand the Court in 1937.

Nine remains sacred because proposals to change the size seem partisan. Recent suggestions of enlarging the Court came because that body is firmly conservative and because Republican partisan activities insured a firm majority of rightist Justices. However, there are proposals that would lead to more than nine Justices that could make the Court appear, and perhaps be, less partisan. The reforms could lead to better Justices and make the nomination and approval process less partisan.

The core of the proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy if all of them decided each case. Instead, nine Justices would be picked at random from all the Supreme Court judges to hear a matter.

There are obvious advantages to this scheme. First, of course, there would be replacements for recused justices, and there would be no possibility of an equal split among the justices. The decision to recuse can then concentrate solely on conflicts of interests.

Another advantage is that the enlarged Court could take on more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the result in a litigation. This would give more certainty, uniformity, and finality to the law than we have now.

Drawing nine from a broader roster of justices also would have the advantage of dampening lawyerly gamesmanship. Attorneys now try to predict how each of the nine justices might decide a particular issue and seek review only when they assess the Supreme Court lineup as favorable to their position. That gamesmanship was evident with Amy Coney Barrett’s ascension to the Court. Conservative legal organizations now see a solid Supreme Court majority favoring certain kinds of religious claims, Second Amendment expansion, and the limitation or elimination of the right to abortion and are seeking to get Supreme Court review of cases containing such issues before a Court they see as especially favorable to their viewpoints.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more public focus on the issues and less on the judges. That would be a good thing.

(concluded April 8)

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The Republican Pecking Order

          I have no insight into whether Trump will run for president in 2024, but I am confident that if he does not, the announcement will come as late as possible. Trump wants to be a center of attention and that ends when we know that he is not a candidate. This, of course, presents a problem for other Republicans with dreams of the White House. They will have to gear up campaigns before Trump makes clear whether he is a candidate. They will want Trump’s support if he does not run, and it will be interesting to see how this affects their campaigns. They have to proceed in ways that will not offend the ever-mercurial Donald while he dithers. And, of course, if Trump does run, the others, who may already be entered in primaries, must decide whether they will withdraw.

          From the list now of apparent or potential candidates, Ron DeSantis will have the toughest choice about whether to stay in the race. He could wait until 2028 to run, but it could be a liability if he continues to be governor of Florida for those four years. That is because governors, surprise, surprise, must govern. Of course, DeSantis may continue to be identified with policies of anti-gay and voter-fraud measures, but a governor must do more than this kind of pandering. There will be roads to be maintained, schools to be funded, taxes to be levied and collected. In all likelihood, there will be storms and floods and blackouts. There will be illegal immigrants and corruption. There will be crimes and mass shootings. There will be development decisions and red tide. States can’t print money and have to balance their budgets. That almost always requires deals, negotiations, and compromises….you know, governing.

          A governor has to make decisions, and no matter how wise those decisions, not all will agree with them. A danger for a governor is that over time, those who are made unhappy in one area will coalesce with those made unhappy by choices elsewhere. In the four years after 2024, there is a good chance that the unfavorable ratings of DeSantis will increase and weaken his presidential prospects. Just remember my ex-governor, Andrew Cuomo. Three years ago, he looked as if he might be a leading presidential candidate, even though there was much under-the-radar grumbling in the state about him. When one sort of complaint about him got traction, many areas of Cuomo discontent coalesced, and he is gone. DeSantis, if he is as shrewd as he appears, should know of that possibility. Holding off his presidential ambitions beyond 2024 is a big risk for Ron.

          The many Senate Republican wannabes may not wish to wait four more years after 2024 for their presidential chance either, but they don’t face the potential harm that the Florida governor does from the delay. Senate Republicans don’t believe in governing other than passing tax cuts skewed towards the rich, and that has already been done. The goal now is not to improve anything but to prevent legislation, a relatively easy task. Passing laws always involves compromise and for Republicans that would mean working with Democrats, and working with Democrats appears to be a death knell for any Republican’s presidential hopes. Furthermore, good legislation requires study, knowledge, and mastery of detail, and who wants to bother with that?

          The role of a Republican senator these days is not to take a part in governing; instead, the role is merely self-aggrandizing grandstanding. More of that from 2024 to 2028 is unlikely to harm the prospects of Cotton, Cruz, Hawley, Paul and the others, and it might even benefit them. Thus, if Trump runs, the Senate Republicans are not likely to challenge him but will get out of the race they will have already entered.

          However, if Trump runs, I hope that DeSantis stays in. Good political theater could result. The Senatorial and other presidential pretenders might normally proclaim neutrality between the candidates–let the voters decide. But we know that the Trumpian stance is that if you are not with me, you are against me. Cruz, Hawley, Cotton, Paul and others will support Trump because they will want his support, but they will do it with some trepidation. What if DeSantis wins? They might mouth kudos for Trump, but can they attack DeSantis? No one wants to offend someone who might be the winner. This road is also tricky because while other wannabes may pledge loyalty to the Republican party, they will not want a DeSantis president. The Twenty-Second Amendment limits Trump to only one more term. DeSantis could serve eight years as president. Waiting four more years for their presidential shot is one thing for those in waiting; eight is another.

          I also want DeSantis in primaries against Donald because it will be interesting to see Trump attack DeSantis. Donald regularly pulls out the RINO label against Republicans who don’t sufficiently kowtow to him, but it will be hard to stick that epithet on Ron who might be less of a RINO than Trump himself. Furthermore, attacks on DeSantis could produce dangerous Florida sinkholes. The Republican path to a general election victory in 2024 surely requires a Florida win. Trump has not been a politician of nuance, but that may be required to defeat DeSantis for the nomination and still carry the rising-water-and-disappearing-coastline state in November.

          I look forward to two other political possibilities if DeSantis or someone else provides a strong primary challenge to Trump. Republicans have been making it harder to vote. The goal, of course, is to disproportionately burden Democratic voters. That might happen in the general elections, but the recent Texas primaries also show that the “anti-fraud” measure can affect Republicans, too. A higher percentage of absentee ballots were disqualified in Texas than in previous years after stricter identification requirements were enacted and applied, and many of the ballots tossed aside came from counties that overwhelmingly supported Trump. In the general election, more Democratic votes may be suppressed than Republican ones, as intended, but Republican votes, as Texas shows, will be lost in Republican primaries. If primary elections are close, then it might be crucial whether the lost Republican votes helps one candidate more than another. Will any Republican candidate who loses a close primary where ballots have been disqualified complain about the voting laws?

          But the major reason I want Trump in primaries with a strong candidate is that we now know that Trump cannot lose a general election; it can only be stolen from him. Are you going to be surprised if he reacts similarly to a primary loss? What will be the reaction from all those Republicans who now do not denounce the Stop the Steal movement if Trump claims that a primary is fraudulent? Or if DeSantis or another Republican candidate made such a claim after a close primary loss? Let the elephant dung fly!

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First Sentences

“The killer came by streetcar.” David Zucchino, Wilmington’s Lie: The Murderous Coup of 1898 and the Rise of White Supremacy.

“From across the aisle Harry Bosch looked into his partner’s cubicle and watched him conduct his daily ritual of straightening the corners on his stacks of files, clearing the paperwork from the center of his desk and finally placed his rinsed-out coffee cup in a desk drawer.” Michael Connelly, Nine Dragons.

“Let’s look beneath the ice-chipped surface of a fish counter at a Whole Foods in New York City.” Benjamin Lorr, The Secret Life of Groceries: The Dark Miracle of the American Supermarket.

“It all started one afternoon early in May when I came out of the House of Commons with Tommy Deloraine.” John Buchan, The Power-House.

“Imagine an archaeologist, thousands of years from now, whose trowel clangs against something solid.” Edward Dolnick, The Writing of the Gods: The Race to Decode the Rosetta Stone.

“He no longer feels cold; instead, a curious heat is spreading through his veins.” Arnaldur Indridason, Strange Shores.

“The Headquarters Building at the Central Intelligence Agency in Langley, Virginia, is a grim maze of identical corridors flanked by blank, color-coded office doors that are always shut tight.” Nicholas Dawidoff, The Catcher Was a Spy: The Mysterious Life of Moe Berg.

“On the first Monday in March 1901, in the early evening when the sound of sleigh bells filled the air, a student unexpectedly knocked at my door.” Lauren Belfer, City of Light.

“These are the fisherman who stand sentry over the cod stocks off the headlands of North America, the fisherman who went to sea but forgot their pencil.” Mark Kurlansky, Cod: A Biography of the Fish that Changed the World (1997).

“The last time I’d eaten at the Watergrill I sat across the table from a client who had coldly and calculatedly murdered his wife and her lover, shooting both of them in the face.” Michael Connelly, The Reversal.

“Years ago, as a medical student in Boston, I watched a senior surgeon operate on a woman.” Siddhartha Mukherjee, The Laws of Medicine: Field Notes From an Uncertain Science.

“I have no intention of explaining how the correspondence which I now offer to the public fell into my hands.” C.S. Lewis, The Screwtape Letters.

“The story of modern cancer research begins, improbably, with the sea urchin.” Sam Apple, Ravenous: Otto Warburg, the Nazis, and the Search for the Cancer-Diet Connection.

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Snippets

His ex-wife said a Republican seeking a senate seat had physically abused her and their son. Previously, he had left office when it was learned that he had taken pictures of his naked hairstylist without her consent. Am I being sexist if I think that it should disqualify any male from being elected to office if he has a hairstylist?

We have honored people by naming parks, craters, stars, mountains, prizes, streets, buildings, campuses, and more after them. Doctors, however, often have maladies named after them. Do they like that?

The Supreme Court justice was hospitalized for an infection. He stayed in the hospital longer than first predicted. We were told that he did not have Covid, but there was nothing said further about the nature of the infection. How many of us were hoping that it was related to an STD?

Nearly 90% of American students attend public secondary schools. Only three of the present nine Supreme Court justices did. None of the justices attended a public college, university, or law school.

The Final Four is alliterative. Did the NCAA phrasemongers also think Elite Eight and Sweet Sixteen were alliterations?

I have been trying but failing to understand who comprise “the elites” conservatives rail against. Are the Elite Eight in that group or do they comprise it?

I received a letter “signed” by Donald J. Trump urging me to become a member of the Republican National Committee. It did not offer me any membership benefits but urged a money contribution. The letter pointed out Biden’s less than stellar poll numbers and continued, “And my polls are at an all-time high.” I wondered about that and went to RealClearPolitics, which aggregates polls. It reported that Trump’s favorability number was 44.6 and his unfavorable rating was 50.8. They are a bit better than Biden’s, which were 42.5 and 52.0, but would you brag about polls that show the majority of the country views you with distaste?

The letter’s salutation from the RNC signed by Trump was “Dear Fellow Patriot.” And I have thought that “Trump, the patriot” was a very short joke.

Why is it that some jokes are painful if told by the comedian but make me laugh when told by a ventriloquist’s dummy?

“A different taste in jokes is a great strain on the affections.” George Eliot.

Even though the book review interview stated that the author had written many books and I have not, I felt as if I were the same as the writer when the interview reported that the novelist can’t read Proust anymore.

Proper perspective. After that incident that got a lot of attention at the Oscars, a Brooklyn news source had the headline, “Brooklyn Man Gets Slapped on National TV.”

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The Words Fail (concluded)

Although I was a criminal defense attorney, that work included no child pornography cases. My first personal involvement with a child pornography charge came in my teaching career when a colleague–I will call him Fred–was arrested for having pornographic images of children on his work computer. Subsequently, many more such images were found on his home computer.

These events led to many reports in all sorts of media including on Fox’s O’Reilly show before charges of sexual harassment led to a change in Bill’s career path. (I was invited to enter that “no-spin zone” to discuss Fred’s situation. I declined.) In media accounts, Fred was invariably described as a “child pornographer,” and I began to think about what that label conveyed. What does the term elicit for you?

Fred, in fact, was in a long-term, successful marriage. He had two daughters doing well in elite schools. They described him as a loving, supportive father. He had a successful academic career. He had never sought out any untoward contact with any children. Neither colleagues nor students had ever indicated anything wrong with his behavior (other than that he could be boring.) He did look at images that most of us would find disgusting and that a psychologist did say indicated an arrested sexuality, but if so, no one could find any harm from it in his personal or professional life.

And when you hear someone is a child pornographer, what activities do you think that person has engaged in? Someone procures the children. Someone puts them into a sexual situation. Sometimes that may involve two similarly aged children, but it may also be an adult or older child raping or otherwise sexually abusing a child. Someone arranges the location of the activities. Someone takes pictures of the abuse. If it is internet porn, someone uploads images, perhaps to a website monitored by another person. If there are payments for others to view or download the images, someone operates a system to transfer funds.  Then someone views and often downloads the images. That person might keep this activity private or share images with others.

Fred was the last person in this chain. He had learned ways to download these images without payment, but he did not share the pictures with anyone. (He freely talked with the police when arrested. They were very interested in how such images could be viewed or downloaded without paying. Fred showed them how.) Every so often he looked at some of them; too many had been downloaded for all of them to ever have been viewed. It was his dirty, guilty secret; it was his addiction and sickness which had afflicted him from childhood.

I learned from Fred and from subsequent exposure to similar cases from public defenders that the downloaders–like Fred–were labeled “child pornographers.”  But I have also seen that in the all-too-rare circumstances when those who create or distribute the images are arrested, they, too, were called “child pornographers.” We don’t have separate terms for the different activities. It is as if the international drug smuggler, the meth manufacturer, the local drug seller, the doctor over-prescribing opioids, and the drug addict were all just labeled drug offenders without any distinctions.

The Senate “conservatives” who were trying to suggest that Jackson was soft on child pornography lumped this entire network of child pornographers into one category. If, however, a sentencing judge makes distinctions among the offenses and the offenders as she ought to do–and naturally would do for drug offenses–some of the sentencing would appear wrong to the simple-minded Senators.

Of course, the Senatorial simple mindedness may have been calculated merely to tar Jackson, but their motivations may have been even worse. A few years ago, it might have seemed unlikely that members of the august Senate would pander to QAnon conspiracists, who see child pornographers and sex traffickers around every pizza parlor. Now, however, “conservative” politicians do, and whether intentionally or not, the suggestion that the Supreme Court nominee favors pedophiles feeds the Q crazies.

Even if their questions were well-intentioned, the exchanges were still discouraging because they showed basic flaws in reasoning and revealed a frightening authoritarian streak. That Jackson gave “light” sentences to some has little meaning without comparisons. How often did she give “heavy” sentences to others convicted of pornography crimes? And what about the “control” group? How often have other judges given supposedly light sentences for child pornography? If many in the judiciary have done as much, this could indicate that there is something wrong with the sentencing laws covering these offenses. This should compel a congressional consideration of whether these laws can be made better, more nuanced. But, of course, while today’s Congress may revel in and seek to create gotcha moments, they seldom show much interest in making our laws better.

Finally, some Senators maintained the sentences were inappropriate because they were less than the prosecutor recommended. These Senators should be required to take many, many hours of remedial civics classes. We don’t need sentencing judges if they are supposed to unquestioningly follow what the prosecutor says. The Senators should know that if judges just do what prosecutors want, a little more of our freedom dies, but apparently that would be consistent with the new conservatism.