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The Politically Incorrect Confirmation Hearings

 

John F. Kennedy’s watershed speech to the Greater Houston Ministerial Association in September 1960 still reverberates. Kennedy, of course, was a Catholic, and a group of Protestant ministers that election year had promised to “oppose with all powers at our command, the election of a Catholic to the Presidency of the United States.” Norman Vincent Peale, one of the most revered clergymen in the country, headed another religious group that stated that the Catholic Church was a “political as well as a religious organization” that had frequently repudiated the sacred principle “that every man shall be free to follow the dictates of his conscience in religious matters.” Protestants and Other Americans United for the Separation of Church and State stated that it could not avoid the “fact that one church in the U.S., the largest church operating on American soil, officially supports a world-wide policy of partial union of church and state where it has the power to enforce such a policy.”

In his masterful Houston speech, Kennedy responded:

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all. . . .

Whatever issue may come before me as president — on birth control, divorce, censorship, gambling or any other subject — I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

Kennedy’s speech defused his “Catholic issue,” helped him win the election, and has had a lasting effect. Mainstream figures no longer question a Catholic’s fitness for the presidency. I don’t remember John Kerry’s religion being raised in a negative way at all when he ran for president. Indeed, we have gone further. Polite political society tends to eschew any questions about how an office seeker’s religious beliefs might affect his governmental performance. (See, e.g., Mitt Romney.) Even if, however, this is generally a good thing, there are times that we should drop this political correctness.

Stretch your mind to the now unthinkable and imagine that a practicing  Muslim has been nominated to the Supreme Court. Should Senators inquire how the nominee’s religious beliefs might affect his judicial duties? Should he be asked about his views of Sharia law and how those views might influence his interpretation of the Constitution? Should he be asked about Islamic beliefs concerning the roles of women in society and how this might affect his constitutional interpretation?

Look again at what Kennedy pledged. He stated that if his presidential duties conflicted with his religious conscience, he would resign the presidency. He, in effect, promised to be a secular president. Should we demand that the hypothetical Muslim Supreme Court nominee make similar promises and then gauge the sincerity of his response?

Perhaps the most significant development from Kennedy’s speech has been on the Supreme Court. We have not elected another Catholic as President, but the Supreme Court, which for generations had but one Roman Catholic, now has five Catholics out of the eight justices. The conservative bloc of four are all Catholic men: John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch, three of whom were educated in Catholic schools. Brett Kavanaugh, also educated in Catholic schools, if confirmed, is expected to join those four men on the conservative wing of the Court.

Kavanaugh’s confirmation process, however, has avoided important issues. I am not referring here to Professor Ford’s allegations and whether she or the nominee have been treated fairly, but to the politically incorrect topic of Kavanaugh’s religious views. JFK, who attended public schools, maintained that his religious views were irrelevant in his quest for the White House. In that Houston speech, he stated, “I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens to be Catholic.” Even so, Protestant evangelicals opposed Kennedy. Evangelicals today, on the other hand, enthusiastically ly support Kavanaugh. Why? Because part of the reason that Kavanaugh was nominated and has such support is because it is believed that his religious background will affect his constitutional interpretations. Thus, his religious views are germane to whether he should be on the Supreme Court, and he should be asked about them.

For example: Does he believe that abortion is a sin? If ruling as a justice would preserve a woman’s right to choose, would he be committing a sin? Does he believe that artificial contraception is a sin? Would he feel that he is committing a sin if he preserved or extended people’s access to birth control? Are LGBTQ people committing sins because of their sexuality? Would he be committing a sin if he preserves, recognizes, or extends their constitutional rights? And furthermore, Judge Kavanaugh, do you believe that it is God’s will that women have a limited role in the Catholic Church? How does that affect your views about the issues that affect women’s role in society that come before the Court? Have the sexual abuse scandals in the Church affected your thinking about other sexual abuse and harassment claims that come to court? Would you resign if your faith conflicts with your duties as a Supreme Court Justice?

John F. Kennedy addressed the connection between his religious beliefs and his governmental duties. We should end the present incorrect political correctness and seek answers to such questions from a Supreme Court nominee.

RELATED POST: https://ameliasdad.blog/?s=borked

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The New Left Needs Epithets

I occasionally receive emails from someone who monitors right wing media, and they indicate that those on the far right often castigate other conservatives. These far rightists seem to nitpick over some of the smallest details and claim that others are not truly conservative—that they are in, essence, illegitimate conservatives. In 2016, the term “cuckservative” started appearing more often to denigrate those who did not hold the right right views, although I would not be surprised if other terms, unbeknownst to me, have now emerged.

This looks like an extension of the RINO movement–Republican In Name Only–starting in the 1990s. (Of course, there were similar attempts to purge even earlier, but without the RINO name. Remember Rockefeller Republicans?) But the name calling over ideological lint mostly makes me think back to the beginning of my legal career when I worked with various people who regarded themselves as socialists. These people had long, arcane arguments among themselves, although I believe they would have said that they had political discussions. When they started arguing about which socialist organization most resolutely carried forward or subverted Trotskyite principles, I did not laugh; I tuned out.

I had little interest in their disputes because I did not even know what they meant by socialism. I gathered it somehow differed from communism, but I thought that both involved the state or the government or the workers owning or controlling the means of production. Their discussions over arcane positions just seemed silly since it seemed clear that no socialist was going to be elected to office.

I did remember one Frank Zeidler, a socialist, who had been mayor of Milwaukee throughout the 1950s. While my impression was that he had been regarded as a good mayor, I did not know how as a socialist his positions were different from others who might have thought of themselves as progressive or liberal. (Zeidler, I believe, was aided because Milwaukee’s mayoralty election was nonpartisan, and he did not have to run under a socialist party label.) I did not know what in America makes a person a socialist.

I also knew that in the early and mid-twentieth century, people proclaiming themselves socialist were elected to various offices, but I had assumed that no socialist would ever be elected again. Thus, I was surprised when I first learned that Bernie Sanders, one-time mayor of Burlington, Vermont, and then U.S. Senator from Vermont, was a Democratic Socialist and that others now adopt that banner. If Democratic Socialism is a new movement, I don’t know what it means. If you do, let me know. I recently asked friends what Democratic Socialism was. Both quickly replied, “It’s what used to be called liberalism.” Indeed, in running for the Democratic nomination for President, Sanders seemed to indicate that he was not much different from other Democrats, and his ideas could fit within that party. Why else would he have sought to be head of that party?

I can’t take this new left seriously. It should learn from the alt-right who seems to have learned from the old left. To be seen as a new ideological movement, this new left needs to find things to argue about among themselves for the sake of purity. I don’t mean that there must be cell meetings where the true meaning of Bakunin’s collectivist anarchism is so furiously debated that violence is imminent. However, a political movement, to be a viable, apparently has to find ways to denigrate others who seem to hold similar, but not precisely the same, views.

Insults have to be found. I am told that “cuckservative” is a mashup of cuckold and conservative. The new Democratic Socialists need something like that. How about pervgressive? So for example, that president said he cared about liberal and progressive issues, but helped the deregulation of the investment industry, which aided his friends and donors on Wall Street; hurt American workers with NAFTA; signed a law that made it easier to discriminate in the guise of religion; supported the near gutting of habeas corpus; backed draconian drug sentences that disproportionately affected non-whites; did little to nothing about the stagnation of middle-class wages; and set back the reform of health care. That president was a real pervgressive.

RELATED POST: https://ameliasdad.blog/?s=derrida

 

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Brendan Fraser’s Belly

I would like to give the impression that I am an intrinsically intellectual, sophisticated being. Surely there must be some truth in that. I have read Austen and Dickens and Dreiser and Dos Passos and Fitzgerald and Atwood and Franzen. I have read Kant and Locke and Neibuhr. I have discussed whether the Guns of August did capture the causes of World War I and whether the Trail of Tears was one of the roots of the Civil War. Even before the bubble burst, I had discussions about how the subprime market was going to cause problems. I have listened to Mahler and Dvorak. I have made quenelle and polenta with a chicken liver sauce. I know a fair amount of Cole Porter and Gershwin. I can discourse on the famous fighter plane scene in the Best Years of our Life and Brando’s role as a disabled soldier. I, of course, know the difference between robbery and burglary, and perhaps the differences between a bordeaux, burgundy, and a barolo. I have taken a course on Renaissance art and admired Michelangelo’s David.

Sometimes, however, I feel that this is all a fraudulent front because I know that I am attracted to low pursuits. I have, for example, loved the hardly-high humor of Jay Ward. He first got me with Crusader Rabbit and Tom Terrific and the exclamation of Wow-watausa, Wisconsin. His most enduring creations, of course, are Rocky and Bullwinkle. I enjoy the flying squirrel, the moose, Boris, and Natasha, but when I think of Jay Ward I dredge up memories of the many Saturday mornings in my early twenties when death from a hangover approached. I got through the queasy feelings by having a beer and a lot of chocolate and watching George of the Jungle on TV. I can’t sing, but in my mind I can still hear the theme song, with the line, “Watch out for that treeeeee.”

I did not want to wreck my memories of the animated version and how much it helped me on those Saturday mornings, so I did not see the live movie of “George of the Jungle” in the theater, but eventually I saw it on TV, and to my surprise, liked it. It was the first time I had seen Brendan Fraser, who to my male eye, looked gorgeous. I don’t think I had ever seen a better-looking person. (Yes, I admire beauty in all genders. So does the spouse, and we often point out three-blockers—someone who it is worth going three blocks out of your way to get a glimpse of–to each other.)

I did not think about Fraser one way or the other after that, at least for a while.  I have not seen him in most of his blockbuster movies, but then I saw him in Gods and Monsters, with Ian McKellen, where both he and McKellen were terrific and in The Quiet American, where both he and Michael Caine were terrific (or as I think of it, tom-terrific.) Those movies made me see Fraser as a fine actor, so when a few years back he came to Broadway, I went to see him. (Or to be more honest, memories of those movies and a discount ticket got me to the theater.) The play was an English adaptation of a Norwegian novel and movie based on that novel, Elling. The play had its problems, but Fraser was good, as was the woman, Jennifer Coolidge. The evening was made, however, by the performance of Frazer’s co-star, Denis O’Hare. But, I shamefacedly confess, I was most pleased by something else. I loved seeing Fraser in his underwear. No, this was not out of prurient interest or another of my admirations for physical beauty. Instead I took a certain delight because his belly looked almost like mine. By that, I mean protruding, rounded, you know what I mean. At first I thought it was stage padding, but I took some pleasure in the fact that as the play went on, the curved tummy seemed real.

My pleasure was not entirely pleasing. It conflicted with that projected savoir-faire image. But I knew that my delight was not out of keeping with at least part of me. In addition to some other low pursuits, I can like low comedy, although I maintain that Jay Ward’s humor was far above that. (I do confess, however, that I think Curly was a great comedian, and there is nothing sophisticated about the Three Stooges humor.) I just hope that this lowness in me that I felt in the theater that does not rule out all chances of intellectualism and sophistication, but I also know that I always have at least a little inward smile whenever I see a man who has hit middle age with a prominent belly. Except when I look in the mirror.

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First Sentences

“He was tall, about fifty, with darkly handsome, almost sinister features: a neatly trimmed mustache, hair turning silver at the temples, and eyes so black they were like the tinted windows of a sleek limousine—he could see out, but you could not see in.” John Berendt, Midnight in the Garden of Good and Evil.

“When Caroline Meeber boarded the afternoon train for Chicago, her total outfit consisted of a small trunk, a cheap imitation alligator-skin satchel, a small lunch in a paper box, a scrap of paper with her sister’s address in Van Buren Street, and four dollars in money.” Theodore Dreiser, Sister Carrie.

“Brooklyn looms large in the imagination, but its long history seems difficult to capture.” Ellen M. Snyder-Grenier, Brooklyn! An Illustrated History.

“I am an invisible man.” Ralph Ellison, Invisible Man.

“Picking a fight was an odd way to say good-bye.” Michael Doran, Ike’s Gamble: America’s Rise to Dominance in the Middle East.

“They say it came from Africa, carried in the screams of the enslaved, that it was the death bane of the Tainos, uttered just as one world perished and another began; that it was a demon drawn into Creation through the nightmare door that was cracked open in the Antilles.” Junot Diaz, The Brief Wondrous Life of Junot Wao.

“The American Dream was remade on Baltimore’s Eastern Avenue.” Andrew Hurley, Diners, Bowling Alleys, and Trailer Parks: Chasing the American Dream in Postwar Consumer Culture.

“I was born twice: first, as a baby girl, on a remarkably smogless Detroit day in January of 1960, and then again, as a teenage boy, in an emergency room near Petoskey, Michigan, in August of 1974.” Jeffrey Eugenides, Middlesex.

“The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.” Edward S. Corwin, The “Higher Law” Background of American Constitutional Law.

“One day when Pooh Bear had nothing else to do, he thought he would do something, so he went round to Piglet’s house to see what Piglet was doing.” A.A. Milne, The House at Pooh Corner.

 

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My Education at DSK (continued)

Because bars were a part of everyday life growing up, I am surprised that only recently have I got a regular, local bar. Of course, there were drinking establishments along the way, but I frequented them infrequently for hosts of reasons, and none became the local. When I retired, however, I tried on different activities to see what different activities might please now that I had extra time. I started going to some local bars. One had music on Monday nights that was quite good, but often there were other things to do on Mondays, and my visits were sporadic. I went to another place where I met some interesting people, but the bar did not have food, and I was often going out for a beer and a bite. In addition, the place had no beer on tap, and my father always told me to order the draft beer in a tavern, so I did not become a regular. I went to a few other places, but I found myself going every ten days or so to DSK.

It felt comfortable for several reasons. Although I was usually the oldest person in the place, this was not a pickup bar, and I seldom felt (too) conspicuous because of my age. It had one projection TV that was seldom on. I already had enough sports and news channels in my life. It had beer on tap, a selection of German brews, and it had German-style food that often appealed to me. Music, generally an interesting mix from a bartender’s list, played but at a low enough level that I could concentrate on a book (I always bring a book with me) or have a conversation. The discussions turned out to be the key. Not every time I was there, but often enough I would have an interesting conversation different from the kinds I had elsewhere. I was encountering kinds of people I did not meet the other areas of my life.

There have now been many amusing and informative talks—with a Buddhist monk, a retired firefighter, a public defender, German-Turkish Muslims, an opera singer, filmmakers, comedians, news writers, a couple from the South Dakota who spends the winters in New York, a militant vegan, an ad man, and more—but the conversations started with a bartender

Stuart, the bartender, was the first person I got to know in DSK. When I was there at slow times, he started talking with me. Like many New Yorkers, he was not from New York. He grew up in Fort Wayne, Indiana, and I don’t remember how he came to New York or what his father did, but his mother was a school teacher, high school English I think. Stuart knew a fair amount about literature.

Like many who worked in the bar, Stuart had another interest besides the bar life. He, with two other guys, created humorous podcasts, which I ashamedly admit I never listened to, but I discussed often with Stuart. I learned about their concept—mostly discussions of bad movies—and how the podcasts were made and distributed.

Their podcasts were clearly successful. In the year or so that I knew Stuart, he and his two friends did several live versions at fairly large venues and sold them out. Stuart on occasion mentioned the podcasts, but not often. However, one day a young man came into the bar and asked Stuart for “Stuart.” Stuart replied that he was “Stuart.” The young man, from somewhere in the Midwest, gushed that he was a Stuart admirer because of the podcasts. On one of them, Stuart had said where he tended bar. The young man was visiting Manhattan and had made the trip to Brooklyn specifically to meet his podcast hero. He lit up when Stuart shook his hand. Stuart was self-effacing, but pleased, and I was impressed that I had a sought-out celebrity serving me a Hofbrau dunkel. I also recognized that outside DSK I knew no one who did podcasts, and I had learned something about this world because I had been going to that bar.

When Stuart and his wife opened another bar, Stuart left my local to operate the new establishment. I have not seen him since.

(To be continued sporadically)

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My Education at DSK

I go to a bar—call it DSK, since that is its name–in my Brooklyn neighborhood. You could call it my local, and I am somewhat surprised that it is my first local since I was a teenager. I often feel that I go to this biergarten around the corner from where I live to further my education.

It seems surprising only now to have a local again because I grew up in a bar culture. My Wisconsin town had strong Germanic roots, and neighborhood taverns were everywhere. In fact, there was one next door to our house; a block away was another, and this was not unusual. Sheboygan had a population of 45,000, and it was said, over 140 drinking establishments.

The grandfather went to the one on the next block and played skat there. The father went to a different one, Dick’s Club, on the town’s main street most days after work. Neither patronized the one next door because the family had a long-running dispute with its owner over noise that emanated from its attached dance hall especially when the hall hosted the schuhplattlers with their slapping of thighs and accompanying yips and shouts.

Almost all of the bars I knew in my birth place were for the working class. (I don’t think the upper crust went to bars. Instead, they drank–a lot it always seemed to me–at home or perhaps in the country club or in establishments that I did not know existed.) My working-class family was similar to most in that we seldom had non-family guests in the home, so a bar was a place to meet friends and others.

Each bar had regulars, and the father knew almost everyone who came into Dick’s Club. (I don’t know the source of the name. The owner in the father’s time was not Dick.) The father ordered an eight-ounce, draft Pabst Blue Ribbon, then the Wisconsin working man’s beer. It was never then called PBR, and it was not drunk “ironically” as became the fashion in hipster circles. The beer, as was usual in working-class Wisconsin, was accompanied by a shot of brandy. The brandy was not one you are likely to know. E & J was considered high class, and this clientele would not drink high class booze. When I was of age, I once bought a fifth of Christian Brothers brandy as a treat for the father. He would not drink it because it cost too much, and he said that he would not appreciate it.

The bar for him was a comfortable place to discuss current events—elections and the civil rights movement and more—and to talk again and again about sports, with the father known for his dislike of the manager of the Milwaukee Braves as well as his, and everyone else’s, admiration for Vince Lombardi. (Vince comes home after a December practice and gets into bed. His wife says, “God, your feet are cold.” He replies, “Dear, at home you can call me Vince.”)

Women did not patronize the place during the work week except when families came for the Wisconsin tradition of a Friday night fish fry–breaded perch with limp French fries and coleslaw. Dick’s Club was also part of the father’s Sunday ritual. The father would drop off the siblings and me at the First Baptist Church, go to Dick’s Club, and then pick us up after the services.

I joined him once on a Sunday morning when I was home from law school and no longer a regular churchgoer. He was happy to show off to his friends the son who was going to be a lawyer. The bar then had a pool table. After we had a couple beers and shots, the father challenged me to a game. We did not grow up with the game, but I had expanded my higher education by playing a bit of pool (and billiards—it was a fancy school) at college. As we played, we had a few more beers and shots, or perhaps more than a few, but I was on fire and far ahead until the table, for some reason, became a bit fuzzy, and I aimed at a wrong ball, pocketed it, and lost the game. The old man had seen me lining up this mistake and did not utter a word although I could see that he was trying to suppress a smile. To my surprise, I found that I admired him for his reticence. He wanted to win. He wouldn’t cheat, but he wasn’t going to help me. We went home to the noontime Sunday dinner, and the mother wondered why the father and I were in such a good mood. He and I both just tried to hide our more than a little buzz and said nothing about the bar.

Children were allowed in the bars when accompanied by a parent, but I did not go to Dick’s Club often. Instead, my bar attendance started when I was eighteen. Wisconsin in those days allowed eighteen-year-olds to drink beer, but not wine or distilled spirits, and beer bars–establishments that served only beer–is where we headed, most often to The Patio, after our slow-pitch softball games. There were dice games for beers at the bar. Sometimes there was dancing. (I thought then that I was a good dancer. If my present ability is an indicator, I deceived myself. I prefer to believe, however, that my skill just deteriorated through the years as rock ‘n roll became less meaningful.) I often hoped to pick up some girl. (To protect my ego, I will not go into my attempts and my cool lines. Let’s just say I mostly failed.) I did not go for conversation. I remember only one. The guy next to me at the urinals was in the Coast Guard stationed in Sheboygan, and I thought what a disappointment it must be to join the Coast Guard, expect to see exciting places, and end up in Sheboygan. But he was eighteen and drinking, and passing, beer. He was happy.

I went to the Patio with a friend also to play the pinball machines. There were generally two there, and it was always intriguing when a new one came in as we tried to figure out the tricks to get the high scores. In those golden days, the games cost a quarter for five balls, and you got five games for four quarters. If someone was playing it, you slapped a quarter down on the surface to indicate you had next. You could stay on the machine as long as you had games remaining, and since the machines granted free games for certain scores and difficult shots, the goal was to keep getting free games to continue playing. The friend and I generally played what we considered doubles. Sometimes we alternated balls; sometimes we each took a flipper. And we were good. Often when the bar closed, the machine would indicate that we still had a raft of free games. We would try hard to be there when it opened next evening to make sure we got the freebies we had won the night before.

(Continued on September 17)

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Snippets

It’s hard when your doppelganger dies. Rest in peace Burt Reynolds.

 

I woke up screaming from the nightmare. I had discovered that the author of that anonymous Times op-ed piece, that self-proclaimed savior of the nation, was Rick Perry.

 

The email from a cooking website proclaimed: “How to Make an Oreo.” Why would you want to?

 

A cliché I just heard. The man told me that he was having golf clubs loaded into his sports car. He opened the passenger door for the attendant and said, “The clubs are too big for the back end.” The attendant replied, “Your golf clubs don’t fit into the trunk of your Mercedes. Now there is a first world problem.”

 

What are the second world countries?

 

How many hummingbirds does it take to make a meal?

 

It was a Subaru Outback stopped at the light in front of me. I was shocked when the driver tossed a spent cigarette out the window of a Subaru.

 

Swamps can be drained. Swamps can also be filled in. When they are filled in, it matters what is put into them.

 

In August, a half hour after sundown, a cacophonous, stereophonic symphony of cicadas led by an invisible conductor breaks out. The spouse does not like this music. For me it is a sound of summer. When that music ends, summer is over.

 

The Bible is supposedly timeless. It applies to the present age just as much as to the time when it was written. But surely some of its imagery needs updating, I thought about that when I heard the television preacher’s benediction referred to the King of Kings. Is it meaningful to be labeled the king of the present-day kings? The world has few powerful monarchs today. The Kings of Belgium, Spain, Morocco, the Netherlands, Tonga, Cambodia do not have the kind of authority kings had when the Bible was being written. Then kings were absolute rulers. However, there are more than a few people around today who are “invested with or claiming to exercise absolute authority.” That is a definition of an “autocrat.”  In today’s terms, Jesus (or is it Jehovah?) should be labeled Autocrat of Autocrats.

 

“It is the test of a good religion whether you can make a joke about it.” G.K. Chesterton

 

The politically active woman said our President was elected because of white men. “Maybe,” was the reply, “but his election had a lot to do with a white woman.” (In any event, didn’t a majority of white women vote for Donald Trump?)

 

He “never acknowledge[ed] that the general culture is often stupid or evil and would vote out God in favor of the devil if he fed them back their hate and fear in a way that made them feel righteous.” Charles Frazier, Varina.

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Borked! Really? (Concluded)

To many, Bork had adopted positions in order to be noticed by the right wing with the goal of being nominated for the Supreme Court. His ambition had long been apparent. A Yale Law School skit well before his nomination said, “Bork would do anything to get on the Court.” As a judge on the Court of Appeals, he gave many speeches to right wing groups leading some to conclude that he was trying to curry favor with the Reagan administration. A speech at Carleton College delighted a brand of conservatives when he said that egalitarianism rejects hierarchies. Such rejection of hierarchy lead to moral relativism and denies the right of society to impose moral standards (unless, of course, those standards include rights for minorities, women, and people engaging in sex). Such moral relativism, Bork maintained, leads to business regulations to redistribute wealth. Instead, Bork said, inequality is, and should be, the natural condition.

The conservative University of Chicago Law School professor Philip Kurland, my teacher who had a deep intellectual influence on me, said what many believed: Bork adopted views that pleased the right to promote himself. Bork certainly led conservatives to believe that he was ready to overturn many despised Court decisions despised by the right. A few months before his nomination he had said that an originalist judge should have no trouble in overruling non-originalist decisions because such precedent “has no legitimacy.” A few years earlier he had said, “I don’t think precedent is all that important.” Again, however, as with other views that now seemed to impede his path to the Supreme Court, he changed. At his confirmation hearing he said that “great respect” must be given to precedent.

Bork’s positions and their changes led many—I am included in this—to believe he was unprincipled. Bork had attracted the attention of conservatives, and had secured his nomination, by criticizing Supreme Court decisions that, he proclaimed, needed to be overturned by a Court that based its decisions on original intent, the only valid method of constitutional interpretation. But at the confirmation hearing, Bork again and again said that many of those decisions were now acceptable as firm precedent, or they now represented his views, or they could be reached by different reasoning. As Senator Patrick Leahy satirically said, Bork often had a “confirmation conversion.”

Another senator asked Bork why he wanted to be on the Supreme Court. Bork replied that he hoped that he could contribute to our constitutional governance, but he also said that he enjoyed the courtroom and the “give and take and the intellectual effort involved.” He continued that “the Supreme Court has the most interesting cases and issues, and I think it would be an intellectual feast just to be there. . . .” Ethan Bronner comments: “Bork’s ‘intellectual feast’ line would live in infamy. . . . The bearded egghead from Yale just wanted to play with ideas. He didn’t understand that beyond those elegant intellectual constructs, the lives of real people hung in the balance.”

A Supreme Court justice should have more than an intellect. A justice should understand society and history, not just constitutional decisions. A justice should have empathy and not just bloodless legal smarts. Time and again in the confirmation process—when he discussed his civil rights, privacy, and free speech positions—he indicated abstract intellectual views that were divorced from the impact his positions would have on everyday Americans.

Bork’s confirmation process brought out things that were unfair, but it also brought out an extensive examination of his views that were relevant in determining whether he should be on the Supreme Court. Bronner summarizes: “Bork answered questions for thirty hours over five days. Inside the hearing room there was posturing, but there was also real intellectual give and take. Bork had the opportunity to lay out his constitutional vision. The dispute over Bork can be summed up as a substantive debate with some slander.”

Rereading Bronner’s Battle for Justice again, I concluded, again, that Bork was not borked. Instead I was reminded of what William Blake said: “The fox condemns the trap, not himself.”

RELATED POST: https://ameliasdad.blog/?s=originalism

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Borked! Really? (continued)

Bork’s civil rights stances concerned many during his 1987 confirmation process. He had not challenged Brown v. Board of Education, but when Congress considered the Civil Rights Act of 1964, Bork wrote a magazine article opining that while segregation was morally wrong, we should not have laws enforcing morality. He stated, “The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. This is itself a principle of unsurpassed ugliness.” He used examples of barbers and chiropodists as those who should not be forced by legislation to serve blacks. As Bronner states, “those were codes at the time for the feelings of racists who did not want to have to touch blacks.” Labeling the desegregation of hotels, restaurants, gas stations, grocery stores, and other places open to the public as a principle of unsurpassed ugliness haunted him in the confirmation process.

At the Senate hearings, he said that while he had changed his mind about the Civil Rights Act even earlier, he had announced this change in 1973 at his confirmation hearing for Solicitor General. He said that his original stance was fueled by his concern over the coercion of individuals but had no good answers when asked if he had ever thought that segregation coerced black individuals. It was noticed that he publicly stated his changed mind only when his old views might have stood in the way of getting a position he sought.

Doubts about his sincerity and his civil rights views deepened in an exchange with Senator Arlen Specter at the hearing. Brown v. Board of Education was based on the Equal Protection clause, which applies to the states but not to the District of Columbia. The Supreme Court, shortly after Brown, used due process to hold that segregated schools in the nation’s capital were unconstitutional. When pressed by Specter, Bork said that he could not think of a rationale for Bolling v. Sharpe, the D.C. desegregation decision. At a break that occurred shortly thereafter, Bork’s advisers cautioned that he could not let his answer stand, and when the hearings resumed, he announced although he did not have a rationale for the decision, that “does not mean that I would ever dream of overruling Bolling v. Sharpe.” A calculated change of heart? It looked that way.

To many his civil rights stances seemed as to be abstract positions divorced from the harsh realities of America and its history. Bork’s views of constitutional privacy evoked similar reactions. In a 1971 law review article, Bork denominated himself a strict constructionist and said that only liberties explicitly protected in the Constitution could have constitutional protection. If the Constitution does not address a value, it must be left to the federal and state legislatures. He went on to attack Griswold v. Connecticut, a 1965 Supreme Court decision. Connecticut law forbade the use of contraceptives. That law had not just forbidden them for unmarried couples. No one could use them. It was a crime for a married couple to slip on or slip in a condom or diaphragm. The Supreme Court held this law unconstitutional, and many besides Bork found its reasoning troubling. The Court relied on a right to privacy that is not explicitly stated in the Constitution.

Bork’s criticisms of Griswold, however, went beyond what others had said. In what was an awkward analogy (to put it generously), he found identical a couple’s desire to use banned contraceptives and a company’s wish to defy a smoke pollution law. He wrote, “There is no principled way to decide that one man’s gratification is more worthy than another.” He went on to mock the Fourteenth Amendment’s Equal Protection clause by stating that the Court had created the “Equal Gratification” clause. (His analogy was remarkably bad. When a company pollutes, others must deal with the dirt and health effects of what is spewed into the air. Pollution is not a private affair. There are not similar external consequences when I hurriedly pull on a ribbed-for-pleasure Trojan.)

Bork’s view on privacy also appeared inconsistent with some of his other beliefs. Protected liberty, Bork maintained, was limited to what was enunciated in the Constitution, and that category could not be constitutionally expanded. He felt that individual liberties impeded the liberty of the majority. If I have a constitutional right to read pornography, the right of the majority to determine the community it wants is denied. But, of course, just as the Constitution does not explicitly give me a right to dirty movies, it does not explicitly give a right to the majority to ban them. Either right is an expansion from what is in the Constitution. Why one expansion and not the other? Bork was unclear of his choice of one over the other.

Bork was also asked about another inconsistency. The Constitution’s framers sought an executive with limited powers. Bork, however, claimed that the executive power was not static but was meant to evolve. Certainly, the Constitution does not explicitly grant evolutionary powers to the executive. So, of course, Bork was asked if executive power was not static and could evolve, why can’t liberty and other parts of the Constitution also evolve? Bork had no cogent answer. For many, Bork’s determination of what could grow and evolve was not based on any real constitutional principle. Instead, it was driven by a slightly disguised authoritarian agenda.

Bork’s privacy analyses took on some rather ridiculous solutions. If the community outlawed contraceptives, Bork maintained, the objector could move to another state as if this were as easy as going to the corner drugstore to get a cigar. When the Ku Klux Klan controlled Oregon in the early twentieth century (do schools in Eugene and Portland teach this history?), the state prohibited private education because it did not want Catholic schools. Moreover, due to differing prejudices, states had prohibited the teaching of certain foreign languages. The Supreme Court struck down these laws using a privacy analysis. For Bork, however, all those Oregonians who wanted a parochial education should have left the state and Nebraskans could move to get German classes.

But, again, Bork waffled. Although he had frequently attacked Griswold in uncertain terms, in the Senate hearing he became mealy-mouthed. He said that while the right-to-privacy rationale of Griswold failed, perhaps there was a more constitutional way to reach its result. He had never before suggested that.

Bork’s free speech views may have gotten even more attention than his civil rights and privacy positions. He had contended that only political speech was protected by the First Amendment. Artistic or personal speech could be regulated. This standard brought on many questions. For example, it is often hard to determine what is political speech. Was Upton Sinclair’s novel The Jungle about the meat industry political? If the cattle industry in Texas had controlled the legislature could that state have validly banned the book? And if nonpolitical speech is not protected, art books containing photographs of Michelangelo’s David could be banned if they offended officials’ sensibilities.

Furthermore, Bork maintained that the First Amendment did not protect all political speech. Speech advocating the government’s overthrow or advocating the violation any law could be suppressed. Bork was asked: Doesn’t this mean that Dr. Martin Luther King’s advocacy of violating segregation laws could be suppressed or even made criminal? Bork’s answer, according to his previously stated opinion, should have been “yes,” but again there was waffling. He now said that King’s speech was protected because King was testing the constitutionality of the segregation laws and because those laws were later found to be unconstitutional. This “new” position meant that King’s urgings would get First Amendment protection if they were not meant to provoke a constitutional test but not if were only aimed at getting a legislature to change the laws. And as Senator Patrick Leahy pointed out, Bork’s new position failed as a sensible legal standard—how could a person know in advance whether speech was protected if it took a later finding of a law’s unconstitutionality for protection?

Bork changed his position at the confirmation hearing on equal protection, too. Before his confirmation hearing, he had maintained that the original intent of the Equal Protection clause meant it only applied to race. It definitely did not apply to women, but now he enunciated a “reasonable basis” test for gender discrimination, a position he had never before mentioned. All these changes raised concerns about his intellectual integrity.

(Concluded on September 10)

RELATED POST: https://ameliasdad.blog/?s=originalism

 

Posted on by rjonakait

Borked! Really? (continued)

The conservative lament that Robert Bork was treated unfairly in his nomination to the Supreme does have some validity. Liberals did launch an intensive campaign against the nomination. This campaign may have seemed unprecedented to some, but it did have seeds in previous nominations. It was not unusual before the twentieth century for the Senate to reject Supreme Court nominees. A nominee was turned down as early as 1797, and one in four nominees was rejected in the nineteenth century.

In the first half of the twentieth century unsuccessful campaigns were mounted against nominees Louis Brandeis and Thurgood Marshall. On the other hand, the 1930 opposition to John J. Parker portraying him as a racist and anti-union was successful. However, the reaction to these nominees did not produce the frenzy that would later be seen with Bork. Nevertheless, that frenzy had roots going back to President Johnson’s nomination of Abe Fortas, then an Associate Justice of the Supreme Court, to Chief Justice. There were legitimate issues about Fortas, but the opposition went beyond them. Bronner, after discussing the Fortas controversy, concludes that it was “plagued by partisan politics, ideology, character concerns, and closeness to LBJ.” As partisans often do, some looked for the opportunity to respond, and that came with President Nixon’s nomination of Clement Haynsworth to the Supreme Court. (You can look him up, and G. Harrold Carswell, too.)

The Bork nomination, then, was not the only time partisanship took the stage with a Supreme Court nomination. But the Bork controversy was unprecedented in the media campaign mounted against him. Press and TV ads were not used against other nominees as they were against Bork, and as we see in political advertising today, much that was said so grossly oversimplified Bork’s views that the content was unfair.

Such attacks, however, did not start in the media, but with Senator Ted Kennedy, who on the Senate floor, said, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

The conservative outrage over this attack increased with an ad by the People for the American Way featuring Gregory Peck. A family gazed at the slogan “Equal Justice Under Law” chiseled on the Supreme Court building while Peck on the sound track, as Bronner summarizes it, “accused Bork of opposing civil rights, privacy, and much free speech protection.” Peck continued, “Robert Bork could have the last word on your rights as citizens, but the Senate has the last word on him. Please urge your senators to vote against the Bork nomination, because if Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.”

The ad may have been powerful, but it was aired little and probably would have drawn minimal attention. Then a White House spokesman attacked it, and the ad got widespread notice as it was played again and again on news programs, which brought more examination of Bork’s positions. Many came to think that the ad was not really unfair, for Bork had opposed civil rights laws and Supreme Court privacy decisions, and he had announced a position that would drastically limit free speech.

The borked view of history fixates on Kennedy’s speech and sees only partisanship. It cites the Gregory Peck ad and sees simplistic, inflammatory summaries of what Bork believed. It dwells on irrelevancies that come up, such as discussion of his beard and what movies he had rented. But that history ignores Bork’s actual views and how they were explored at some depth by many noted lawyers and scholars before the confirmation vote and at the five days of the Senate hearing, which was akin to a constitutional law seminar exploring Bork’s views. The confirmation process, in fact, was filled with substance. It provided good reasons why Robert Bork should not have been on the Supreme Court.

(Continued on September 7)

RELATED POST: https://ameliasdad.blog/?s=originalism