Posted on by rjonakait

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“The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.”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.

 

Posted on by rjonakait

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)

Posted on by rjonakait

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)

Posted on by rjonakait

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.

Posted on by rjonakait

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

Posted on by rjonakait

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

Posted on by rjonakait

Borked! Really?

History is not what is lived; it is what is remembered. As a character in Richard Russo’s Trajectory states, “Just because I wasn’t there doesn’t mean that I can’t remember it.” But even those who were there may not remember it the way that it was lived.

The O.J. Simpson murder trial is an example. Polls the day after the verdict found that the majority of Americans thought the not-guilty verdict was right. Although a higher percentage of blacks agreed with the outcome than whites, a majority of whites also said that guilt had not been proved. TV had shown gavel-to-gavel coverage of the trial with extensive summaries in the evening, and the proceedings had been heavily watched. The day-after opinions were largely based on what the poll respondents had personally observed of the trial.

A month later, however, polls showed a different reaction to the trial. Now a majority of whites thought that the verdict was wrong while a strong majority of blacks continued to see it as right. Memories of the trial had changed not because respondents had gained more experience of the trial. Instead, they heard others, often TV pundits discussing the case, people who often had had no more experience of the trial than the respondents. But for those who had changed their minds a month after the trial, history had changed. Memories were different from what they had experienced, and the memories were based not just on the events but also had incorporated how others portrayed the events. What was “true” had changed.

I am reminded of the comedian I saw who said that someone who remembers everything has a photographic memory, but then there are those who make up memories and believe that they are true.  They have a PhotoShopic memory. To some extent, we all have PhotoShopic memories.

These thoughts popped up because we are entering a season in which we may hear the term “borked.” Merriam-Webster defines this slang word: “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.” The Oxford English Dictionary says “bork” means “to defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”

The term comes from the nomination by President Ronald Reagan of Robert Bork to the United States Supreme Court in 1987. A superficial glance showed a nominee well credentialed for the Supreme Court. After graduating from an elite law school, Bork worked at a distinguished law firm and then joined the faculty of Yale Law School where he became a famous antitrust scholar. He served four years as Solicitor General of the United States, the office that represents the federal government before the Supreme Court. A few years later, Reagan appointed him a judge for the United States Court of Appeals where he was sitting when nominated for the Supreme Court.

This c.v. made him look superbly qualified for the high court, but the Senate still rejected his nomination by a vote of 42 in favor and 58 against. A conservative story then took root. Bork was well known for his conservative views about how the Constitution should be interpreted. Conservatives maintained that until the Bork nomination, presidential nominees, especially Supreme Court nominees, were rejected only for incompetence or corruption, and Bork easily met what had been the prevailing standard for approval up until then. Bork was rejected, conservatives maintained, not because he was unqualified, but because he was a conservative. It was party politics, they claimed, in an area that had previously been free of partisan politics, that prevented Bork from being confirmed. And it was ugly partisan politics. Conservatives claimed that the opposition campaign to Bork was filled with slanders, vilifications, and irrelevancies. Bork lost the nomination because he was “borked.”

Many accept this “history,” including friends of mine who recently said that the Democrats without precedent politicized the Supreme Court nomination process with Bork and that Bork was treated unfairly. Their implication is that Bork should have been confirmed. This made me wonder about my own “history” of that nomination. I remember that I was opposed to Bork’s elevation to the Supreme Court, and, not surprisingly, I thought that I had good reasons for that position. I also remembered that friends and mentors of mine who had been colleagues of Bork also opposed his nomination. Were these people whom I respected simply accepting calumnies or being anti-conservative partisans in thinking Bork was not fit for the Supreme Court? Was I?

To gain perspective I re-read Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America. I had read the book shortly after it was published in1989. It was updated in 2007, and it was this newer edition that I now read. Battle for Justice was what I remembered it to be—a well-researched, dispassionate account of the nomination fight. And I was confirmed in my memory. There were compelling reasons to oppose Robert Bork’s nomination to the Supreme Court. (What follows is largely drawn from, and sometimes paraphrases, Bronner’s book.)

 

(Continued on September 5)

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

 

 

Posted on by rjonakait

Grandpa’s Laboring Days

I was raised in a working-class family. My father was a janitor. He worked hard and took pride in doing a good job. In my college summers, I had menial and factory jobs, and I worked alongside full-time employees. I was young and fit, but the labor they did day after day and during the nine-and-a-half hour shifts one summer made me doubt my fitness. And always they made sure the work was done correctly. And then there was my grandfather.

My parents, sister, brother, and I lived on the ground floor of a two-story house. My father’s parents lived upstairs. While I talked with my grandmother some, I spent almost no moments with my grandfather, who just seemed silent with us most of the time. I have no idea how he ended up in Wisconsin. He was born in Pennsylvania to an immigrant family, most of whom migrated back to Germany. I felt like I knew only two things about him: He played skat, a card game, at a local tavern on some weekends and evenings, and he worked at the Kohler Company, the firm that makes toilets and sinks and bathtubs. I didn’t know what he did there other than that he was some sort of laborer in the factory.

I do know that he started at Kohler in 1917. I am confident of this fact because I now have my grandfather’s Hamilton pocket watch, which was awarded him by his employer on his twenty-fifth anniversary of working for the company. His initials are inscribed on the back. A cover opens revealing his name and further inscriptions: “1917 SERVICE 1942” and “KOHLER OF KOHLER”.  A gold-colored chain is attached to the watch and to a medallion, which is inscribed on the back with my grandfather’s name and on the obverse has a relief of a factory worker, “Kohler” boldly written across the medallion, with a slogan on one side: “He Who Toils Here Hath Set His Mark.” (When I used to wear three-piece suits to court, I would often carry this watch and medallion in my vest pockets. The watch still works beautifully.)

My grandfather continued working at Kohler for another dozen years, but then a strike came. Kohler was by far the largest employer in the area, and the walkout, with my grandfather joining the strikers, had a huge effect on the town. As the strike went on and union benefits lessened, families faced tough times. Some strikers sought other work, but there was not much to be had. A few decided to return to work. Loyalties were tested. In a town with a tavern culture, some regulars found they were no longer welcome at their favorite bar. Sporadic acts of violence occurred. I was only eight or nine when it began, and the kids seldom mentioned it. Child friendships did not follow the fault lines fissuring from the strike, but at home I learned the epithet “Scab” and the words to Solidarity Forever.  (Richard White in Railroaded: The Transcontinentals, and the Making of Modern America states that “scab” “In its derivation from an old English word for ‘slut,’ the term was deeply gendered, a slur upon a worker’s virtue and manhood.”)

And I saw the effect on my grandfather. He was now home at times I had never seen before. And he looked lost, bewildered. Part of his life, his identity, had been stripped. I have no idea what kind of economic strain was weighing on my grandparents, and from the sanctuary of childhood, I never thought about it, or I never thought about it until a few years after the strike started. I was with some friends, and we wandered into a park behind our school’s playground. And there was my grandfather raking leaves. Until then, I was not aware that he worked for the city’s Parks Department. He saw me; I saw him. We made no signs of recognition. He looked embarrassed. Raking leaves was the kind of demeaning make-work projects of the depression. It was akin to a handout. It was not the real work of making something as was done at the Kohler Company. Or perhaps, my grandfather was fine, and only I was embarrassed for what he now had to do. I know that I did not want my friends to know that the lonely-looking figure under the trees was my grandfather. Perhaps my grandfather was truly embarrassed or perhaps he recognized that I was or perhaps both, but we exchanged no greetings.

The strike lasted six years, then, and I still think today, the longest strike in the country’s history. The National Labor Relations Board eventually found that Kohler had not bargained with the union in good faith, and that set off another round of contentiousness about what back pay was owed the strikers. The year the strike ended, my grandfather died.

My sister recently told me something I did not know: that my grandfather waited by his upstairs window watching for me to come home from school. He knew that I was studying German, a language that he considered his native tongue (he also spoke English, of course, and Lithuanian), and he was proud of my German studies. Although I would try to exchange a few words of German with my grandmother, I never said a word of German to him. I am sorry for that, and I am sorry that I did not go up to him in that park. We did not hug much in my family, but I wish that I had hugged him. He may no longer have had the job that had been part of his identity for forty years, but work was still important to him, and the many others like him. I try to remember that, especially on Labor Day.

 

Posted on by rjonakait

Originally it was not Originalism (concluded)

I am not suggesting answers to these various questions about the text of the Second Amendment or that Heller’s outcome was wrong, but rather I am claiming that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really a disguise for personal preferences, but his method is pure and neutral and keeps out personal predilections. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be. (Jack Rakove in his Pulitzer-Prize winning book, Original Meanings: Politics and Ideas in the Making of the Constitution, after giving reasons to doubt originalism as a viable theory of constitutional interpretation states, “On the other hand, I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor—and that may be as good a clue to the appeal of originalism as any other.”)

The Constitution does not allow for a merely mechanistic method of interpretation that insures judicial neutrality and guarantees that personal values of a judge will not enter into judicial decisions. The Constitution itself makes it impossible. That document contains broad or vague words, terms, or phrases, and not all reasonable people will agree on their meaning when applied to a particular circumstance. For example, Congress has the constitutional power “to regulate commerce . . . among the several states . . . “ (what is often called the Interstate Commerce Clause). Under this provision, can Congress regulate commerce between just two states, or does “among” require the involvement of multiple states? Does the term “commerce” require a commercial transaction? For example, if I take a pleasure trip from Brooklyn through New Jersey to Pennsylvania, has there been “commerce” that Congress can regulate? (Did I really just use “pleasure” and “New Jersey” in the same sentence?) Relying on the Interstate Commerce Clause, Congress prohibits the growing of marijuana, but does the power to “regulate” mean the power to “prohibit”? If I grow wheat and consume it myself, I will no doubt buy less grain from the national market for wheat. Can Congress regulate my personal garden because my wheat cultivation affects interstate commerce? The Supreme Court has addressed questions like these many times, and the answers could not have come from a judicial automaton. They could come only from justices exercising judgments, and those judgments may be influenced by personal values.

The Constitution is filled with terms that are even more open-ended than the Commerce Clause. Article I lists specific congressional powers and then goes on to state that Congress has the power to enact laws that are “necessary and proper” for carrying out the enumerated powers. Article II states that the “executive power” is vested in the President. Not all will agree in a particular circumstance as to what is “necessary and proper” or what is an “executive power.” What does “due process” or “equal protection” mean.  And so on; and so on; and so on. The Constitution cannot just be read and mechanistically applied. Constitutional decisions require contemporary interpretations of the words and phrases written centuries ago, and in spite of what some conservatives say, that will always permit personal values to affect the outcome. We can hope that a judge will select a reasonable method for interpreting the Constitution, but no method, including trying to fix its meaning in the amber of 1787 or some other time, will eliminate the opportunity for personal values to affect the outcome. (The distinguished and learned conservative judge Richard Posner has stated, “It is questionable whether there has been anyone in the history of law who could really divorce his jurisprudential views from his personal and political ones. . . . It’s hard to get excited about judicial conduct that violates principles unless it is bringing about results you don’t like.”)

It is noteworthy, however, that one of the earliest Supreme Court pronouncements about how the charter should be interpreted did not proclaim it as a document with an unchanging meaning. Having been present at its creation, Chief Justice John Marshall knew as well as anyone how the framers and adopters wanted the Constitution interpreted. When the Constitution was proposed, he advocated its adoption, and as a delegate to the Virginia convention, he voted in favor of it. When he was on the Supreme Court, Marshall gave his view on how the Constitution should be interpreted. He said it was a document “intended to endure for ages to come, and, consequently, to be adapted to the crises of human affairs.” (Emphasis added.) Constitutional provisions do limit constitutional interpretations, but Marshall recognized that the document has many generalities and interstices that must be refined and filled in by judges. Constitutional meaning was not rigidly fixed in 1787. Rather, that meaning needs to adapt and evolve in light of “the crises of human affairs” if that document is to endure. This really addresses the most fundamental question about our fundamental charter. Is our Constitution only backward looking giving true sovereignty over us to the people of 1787 or did the framers of the Constitution, in the words of the recently retired Justice Anthony Kennedy at his confirmation hearing, “make a covenant with the future”? Are the framers to be admired because they thought they had the answers to whatever might arise, or should they be admired because they were trying to build a nation that would endure for generations?

The originators did not tell us how to interpret the Constitution. Each generation must decide for itself what method or methods are to be used. This generation of conservatives has concocted a method that supposedly gives our fundamental law a meaning fixed from generations ago and supposedly removes a judge’s values from constitutional interpretation. This method is not constitutionally required, and its goals cannot be met. When a judge tells us that he acts merely as an umpire having removed his values from his decisions, he is either delusionally naïve or disingenuous.

RELATED POSTS

https://ameliasdad.blog/?s=%22we+the+people%22

https://ameliasdad.blog/?s=Dolley