James M. Redwine

America

Lemonade

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Photo by Peg Redwine

Liberals are upset that the leak from the U.S. Supreme Court may signal that the case of Roe v. Wade, 410 U.S. 113 (1973), may be overturned or, as is more likely, modified. Conservatives are upset there was a leak from the Supreme Court that may allow public pressure from Liberals to influence the Court to not modify Roe’s holdings.

Neither Roe v. Wade nor the case that followed it, Planned Parenthood v. Casey, 505 U.S. 833 (1992), is before the Supreme Court for decision. They could be referred to and overturned or reaffirmed by the Court within its decision of the pending case of Dobbs v. Jackson, No. 19-1392 that will be decided in 2022. As there has not yet been an official decision in Dobbs, it does not have an official public citation.

Liberals celebrate the leak and abhor the substance of the draft opinion authored by conservative justice Samuel Alito. Conservatives celebrate the preliminary opinion and abhor the leak. Both Liberals and Conservatives find reasons to attack the institution of the Third Branch of our democracy as they clamor for it to be fundamentally changed. Liberals want to “pack” the Court so as to dilute its current conservative majority. Conservatives want a vigorous investigation into the leak with the hope the public will be outraged if some left-leaning leaker is identified as the culprit.

I agree with Shakespeare’s character, Mercutio, in Act III, scene 1 of Romeo and Juliet when his imminent death results due to an irrational feud between the families of the lovers:

“A plague on both your houses!”

However, if we are to be constantly accosted by railings of both Liberals and Conservatives about the need for modifications in the United States Supreme Court, let us consider making some constructive changes. After all, no rational American wants to do away with the Court. We all know one of the main reasons our country has outlived every other constitutional democracy on earth is our equally competing three branches of government. We must support the maintenance of all three, including the Judicial Branch.

When it comes to the Judicial Branch, political commentators often assert it is non-political and must remain so. They are correct if they mean the actual decisions of the Court. No judge should allow political influence to affect his or her decision. But when it comes to maintaining the public’s confidence in the non-political basis of a judge’s decision, it is the processes of judicial selection and retention that are most important.

One reason the public believes the members of the Supreme Court are politically motivated is because the public has no influence on how the justices get their life-time jobs nor any realistic way to remove them. Presidents are elected every four years with the possibility of only one more four-year term. Representatives are elected every two years and Senators are elected every six years. The public has a right to remove them. Supreme Court justices are nominated by one person, the President, as the President sees fit. The public’s influence is greatly attenuated, in fact, virtually non-existent.

At a minimum, the public should have the assurance that many of the most vital issues of their lives will not be at the mercy of the same five-member majority of the Supreme Court for an unknown period. Perhaps our current national furor could be a catalyst to, at least, set term limits for the Supreme Court justices. A ten-year term is what I suggest but the public, through its federal Legislature, should decide such issues. It is fair and in our own best interest in getting well-qualified justices who are willing to serve, to grant the retired justices generous life-time pensions once their term is up. But in return, the retired justices would agree to neither seek nor accept another judicial position ever again.

The possibility of term limits for the Supreme Court might help assuage the current calls by Liberals and Conservatives to radically control what must remain one of our three independent branches of government. Term limits is a better solution than a continuing loss of public confidence in and, perhaps, a loss of independence for, our Supreme Court. In other words, we do not want to make the same types of mistakes as did Romeo and Juliet in their final Act. We do not need to continue on our road toward possible suicide for our democracy.

p.s. Gentle Reader, Peg and I have two upcoming book signings for our new historical novel, Unanimous for Murder, that is a sequel to JUDGE LYNCH!. The first is May 17, 2022 from 10 a.m. to 4 p.m. at the Osage County Historical Society Museum at 700 Lynn Avenue in Pawhuska, Oklahoma. The second is May 20, 2022 at Capers Emporium, 602 Main Street, New Harmony, Indiana from 2 p.m. to 5 p.m. Please drop by and say hello!

When Mercy Seasons Justice

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Photo by Peg Redwine

For the past two weeks as a member of the National Judicial College’s faculty I have helped to present an online continuing education course to judges from several states. A significant portion of the course involved an examination of America’s penal system.

In general, the continuum of criminal justice runs from Deuteronomy, 10:21, to Shakespeare’s The Merchant of Venice, Act 4, scene 1. Deuteronomy provides:

“Thine eye shall not pity. It shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”

But Shakespeare’s Portia pleads with Shylock to show mercy:

“The quality of mercy is not strained. It droppeth as the gentle rain from heaven upon the place beneath. It is twice blest: It blesseth him that gives and him that takes.

….

It is an attribute to God Himself; And earthly power doth then show likest God’s when mercy seasons justice.”

Gentle Reader, you have already discerned the Devil is in the vast distance of details between these two extremes. How should we as judges of our fellow humans devise and apply a sentence that is just for the individual in court and society in general?

The State of Indiana’s Constitution provides a foundational mandate for judges when it comes to designing and imposing sentences that both follow the law and are just; just to the defendant, to any victims and to the general public. Article I, section 18 demands that as to Indiana’s legal system:

“The penal code shall be founded on the principles of reformation, and not on vindictive justice.”

For judges to be “Strict Constructionists” and conservative followers of the Indiana charter, vengeance may play no role while reformation must be the goal. One of my fellow National Judicial College faculty mates was Judge Timothy Brauer from Oklahoma. The Oklahoma Constitution provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property or reputation, and right and justice shall be administered without sale, denial, delay or prejudice.”

Article II, Bill of Rights,

Section II-6.

As a member in good standing of both the Indiana and Oklahoma Bars, I am bound by the Constitutions of both states. Oklahoma’s reference to justice not being for sale reminds of Socrates’ admonition to his judges in the Athenian Senate:

“A judge’s duty is not to make a present of justice, but to give judgment; and judges are sworn to judge according to the laws, and not according to their own good or pleasure.”

Plato’s Apology of Socrates.

The wisdom of basing a system of justice on mercy instead of vengeance has been recognized for thousands of years. Jesus knew society prospered when the Golden Rule and not rule by gold was the standard. And WWII war correspondent Ernie Pyle reminded all of us, especially judges:

“When you have lived with the unnatural mass cruelty that mankind is capable of inflicting on itself, you find yourself dispossessed of the faculty for blaming one poor man for the triviality of his faults.”

As judges should learn, all they have to do to do their duty in imposing sentences is to strictly follow the applicable law which includes the divine judicial quality of not straining at mercy.

Photo by Peg Redwine

President Wilson Was Right

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President Woodrow Wilson’s Fourteen Points set forth a vision of a WWI peace treaty based not on total victory for any one country but a permanent peace for all countries founded on generous terms of self-determination and economic recovery. Germany sued for peace thinking it would be treated fairly, but mainly France and Great Britain joined by several other countries demanded Draconian subjugation of Germany including ruinous reparations. The Treaty of Versailles in 1919 was a testament to vengeance, not peace. It also led directly to WWII.

If there is no war like a civil war for hatred and carnage, there is no dispute like a conflict between neighbors for animosity. Ukraine and Russia have had a common but transitioning border for many years. Millions of people in both countries can speak both Ukrainian and Russian. The two cultures are deeply intertwined even though there have been several border conflicts between the countries. Much as next door neighbors may fall out over property line disagreements countries with a common border may fall victim to the old axiom, “Good fences make good neighbors.” In like manner, when there is a breach in the “fence”, repairing good relations may require a generosity of spirit on both sides and perhaps on the part of third parties seeking to become involved.

My good friend, Judge D. Neil Harris of Mississippi, serves on the faculty of the National Judicial College. He teaches other judges about courthouse security. Judge Harris has found that the type of court cases that are most likely to result in outbreaks of courtroom violence are property line disputes. He advises judges to be particularly alert when disputes between neighbors must be resolved in court. There is something visceral about such personal matters that makes forgiveness more difficult. As the world found to its chagrin after Versailles and WWI, even when wise people know that “Blessed are the peacemakers”, stiff necks are often the approach when neighbors must negotiate.

Ukrainian President Volodymyr Zelensky says he has been negotiating with Russian President Vladimir Putin for two years and is eager to negotiate a cessation of the current hostilities if Putin agrees. The rest of the world should allow Ukraine and Russia autonomy for their efforts to achieve a permanent peace. Such countries as the United States, Poland, China or Belarus may confuse their own agendas with those of Ukraine and Russia and, just as at Versailles in 1919, peace may be only temporary when the neighbors make up under false pretenses or when pressured to do so by outside forces. Perhaps the rest of the world should bite its collective tongues as Ukraine and Russia, hopefully, apply Wilson’s Fourteen Point type wisdom that was so tragically ignored at the catastrophic ending of WWI.

The Price of Peace

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Photo by Peg Redwine

Americans relate to the Ukrainians’ passion to control their own lives. Of course, self-determination is not just an American or Ukrainian desire. It is a universal need for all people. However, when it comes to a democratic form of government there is an interesting historical tradition shared by Americans and Ukrainians.

We Americans rightly point to our Constitution that took effect in 1789 as a shining example of how a country’s government can be held in check as individual liberties are protected. However, in 1710 Ukrainian Philip Orlyk wrote and published a proposed constitution that called for a government designed to have three competing branches, Executive, Legislative and Judicial. Our American constitution was drafted principally by James Madison and was based mainly on the theories of French legal philosophers Montesquieu and Voltaire and the English legal philosopher John Locke along with legal theories underlying The Enlightenment. All of these thinkers did their work after Orlyk had published his constitution based on a democratic system of self-government.

Orlyk’s constitution was never put into operation. But the strong democratic ideals of the Ukrainian people were a part of what the German legal philosopher Friedrich Carl von Savigny (1779-1861) would have described as the Ukrainian nation’s Volksgeist. Volksgeist is the inherent common spirit of a particular culture, in this case Ukraine.

When we are amazed that the Ukrainians are so vigorously and courageously opposing aggression from the third most powerful military on earth we can look to their spirit, their Volksgeist of democracy. This deep passion for self-determination when coupled with the natural advantages of fighting for their homeland have allowed the Ukrainians to stand up strongly against the great Russian bear. Will they win, yes, because they already have. Much of the world is on their side and is supporting them. Will Russia eventually gain physical control of Ukraine? Maybe, but emotional control over the hearts and minds of the Ukrainians, probably not.

How will this war reach what in mediation is called a quiescent state? There are many possibilities. In the long run the outcome is a subject of pure speculation. But in the short run a few things can be suggested. In all negotiations each side has their dream outcomes and each has what they eventually will accept. Russia probably hoped for total capitulation by Ukraine and Ukraine probably hopes for surrender by Russia. Neither outcome is likely.

Should total victory be beyond either country’s grasp, Ukraine may settle for sovereignty of all Ukrainian territory west of Russia including free access to the Dnieper River from the Black Sea plus sovereignty over the port of Odessa. Whereas Ukraine may want and may deserve reparations of billions of dollars from Russia, Russia cannot provide for itself much less re-build Ukraine. Ukraine will look to America and others such as Germany, France, Canada and Great Britain for economic aid.

Russia may be eager to get out of the quagmire it has blundered into if Ukraine concedes Crimea, already a fait accompli, and any port on the Black Sea or the Azov Sea excluding Odessa. Russia would have to sign a treaty that promises no future incursions into Ukraine and no interference with the Port of Odessa or use of the Dnieper River. Ukraine would have to sign a treaty that binds itself to not seek or accept NATO membership as long as Russia abides by the peace treaty. Of course, there are thousands of other possible significant concerns both countries may wish to have go their way. But peace requires sacrifice.

A Cuppa For Peace

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Post Card from Moscow Coffee Bean. Photo by Peg Redwine

Starbucks Coffee Company has suspended operations in all 130 of its Russia based coffee shops as a protest to Russia’s invasion of Ukraine. The first shop opened in September 2007 in Moscow. Peg and I were in Moscow in 2003. We are Americans. We drink coffee. We were in anguished caffeine withdrawal almost the whole week we were in Russia. I applaud Starbuck’s gesture but worry about those people who are forced back to the pre-2007 coffee-less culture in Russia. Of course, the blame lies with Putin but the headaches are visited on the Russian proletariat as war is visited by Putin on the Ukrainians.

In 2003 Peg and I, after long and frenzied searching, located one coffee shop, The Coffee Bean, in Moscow. As this was our first trip to Russia we had been unaware of Russian culture which at that time considered one cup of instant coffee in tepid water good enough for such foreigners as we. The cold turkey shock treatment made us acutely aware of a society where vodka and cognac were more available at breakfast than coffee.

I do not expect Putin to come to his senses on his own so his war on Ukraine will most likely play out as such debacles always have. There is the initial shock and awe, then the search for weapons of mass destruction, the trading of lies and misinformation, then death, injury and misery followed by years of confusion and remaking of history by the survivors.

I do wonder what Putin’s thought process was that led him into this tar pit. He keeps making public statements and allegations about NATO and Ukraine’s belligerence. His statements and actions appear to arise from paranoia, what most of the world sees as an unreasonable fear that Ukraine and the other pre-1991 Soviet Union countries along Russia’s western border will be used as bases for the United States and our allies to attack Russia.

Putin may have reasoned that as Ukraine was steadily building up its ties to democracies such as America, if he did not strike now, he would have no viable defense to a stronger Ukraine that might become a member of NATO later. Such an analysis seems ludicrous to us but it is not our thought process that is in question. If Putin believes it, even if it is false, then his actions may make sense to him.

He also may have been misled by the relative ease with which Russia took over Crimea from Ukraine in 2014. In today’s attack his objective may have mainly been to take over that part of Ukraine, such as Odessa, that borders the Black Sea. But then he made a common tyrant’s mistake. He got too greedy and decided to grab what was left of the remainder of Ukraine beyond Crimea.

By this time, Gentle Reader, if you are still with me, you are asking, “What does any of this have to do with coffee?” Okay, as Fareed Zakaria might say, “Here’s my take”. I hope the Russian people will have become so hooked on coffee after 2007 that this forced Starbuck’s withdrawal will cause them to see Putin for the despot he is. Then perhaps the aroused common citizens will rise up and replace the warmongering Putin and his incompetent military leaders. If the Russians feel anything similar to the way Peg and I did in 2003, revolution is not so farfetched.

JPeg Osage Ranch Coffee Bar. Photo by Peg Redwine

Crackers of Gold

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Golden Crackers!
Picture by Peg Redwine

Over the years I have managed to enter the market on the backend of several financial bonanzas. I passed on pet rocks in 1975 and have regretted it for fifty years. But I think I am in on the ground floor of the next gold rush, saltine crackers! Those of you who read this column for advice on how to retire early may wish to listen up. That group does not include Peg, who as many spouses, does not recognize my genius when it arises.

I happened to notice about a couple of months ago that America had a dearth of saltine crackers. Saltines are important to me, and maybe you too. My fallback diet is crunchy peanut butter on crackers. It is quick, easy, tasty and there is no clean up required. Unfortunately, for the last couple of months I have encountered empty shelves at Dollar General and even Walmart when I searched for saltines. And even though I have researched the topic vigilantly, via Google, I cannot find a rational answer to my plea, “Where are the crackers?”

So, when I found a box at Hometown Foods, see the photo for proof, I grabbed it. I felt like I had discovered that first nugget of gold at Sutter’s Mill in 1848. My excitement was dampened by Peg’s response to my plan to try to corner the market, at least within twenty miles of our cabin, on saltines. When I called our son, Jim, who is our financial advisor, he once again sided with Peg. I explained to him I wanted to convert my IRA to cash and buy all the saltines I could find. He mumbled something about a guardianship and hung up.

As you know, Gentle Reader, no prophet is known in his own country, but I can clearly see our barn filled with boxes of saltines, if I can find them, that will jump in value each day, especially with that maniac Putin destroying our stock market as he tries to destroy Ukraine. Now is the time to reach for that brass ring I have just missed out on so many times before.

So, darn the torpedoes and full speed ahead. And if you wish to invest with me in my plan to corner the market on saltine crackers, you better hurry because I can feel the rest of America about to jump on the roller coaster. Please do not mention any of this to Jim or Peg.