Columns
Columns
It Is Time
Sunday, June 18, 2023 Fareed Zakaria on his CNN show, The Global Public Square, introduced a segment about the United States Supreme Court by stating, “The Supreme Court is supposed to be the ultimate, safeguard of our democracy, but has the Supreme Court itself become a danger to our democracy? Is the Court today acting as a defender of democracy or a threat to it?”
Fareed’s guest was Michael Waldman of the Brennan Center for Justice at New York University. Waldman’s book, How the Supreme Court Divided Our Country, sets forth a central thesis: nine unelected, life-tenured people on the Supreme Court hold too much power for too long and they have become “very, very activist and extreme in their rulings”. Waldman’s position, and mine, is that the U.S. Constitution was designed to adapt to changes in our society and it is critical that the Supreme Court change also.
Zakaria and Waldman advance the idea that the justices’ terms should be limited, Waldman suggested a one-term term of eighteen years. I have long called for term limits for all federal judges plus revamping their selection process to popular elections, not appointments that involve only the president and the senate. I think eighteen years is too long. I suggest if our elected president can only serve eight years that a ten- or twelve-year term for judges is reasonable.
In order to encourage people to run for federal judgeships it seems to me it is in the country’s best interests that once a judge has served her or his term the retired judge continue to receive all pay and benefits during their lifetime as long as they do not seek another judicial position.
Judicial offices could appear on the normal ballot as a non-partisan position as needed. There should be minimum qualifications required, such as graduation from an accredited law school, passage of a national Bar Examination, an age of at least 35, the same as the president, and a clear record as to ethical matters. As in all contested elections the relative merits of the judicial candidates could be brought out by the candidates themselves, their supporters, their opponents and the media.
Surely when our Supreme Court is being accused of “holding too much power for too long” and of being “a threat to our democracy”, it is essential we make some fundamental, Constitutional adjustments. America may not yet be on the brink of disintegrating into legal and political chaos, but when that possibility is bantered about blithely on Sunday news programs, it is time to act.
Whose Peers?
Former United States President Donald Trump was indicted by a federal grand jury June 8, 2023 in Florida. Trump is entitled to have the charges tried by a jury selected from the state of Florida. CNN and MSNBC are complaining that the prosecution, the federal government, cannot receive a fair trial in Florida, especially before U.S. District Judge Aileen Cannon who is currently assigned to try Trump’s case. Cannon was appointed by President Trump, which is just fine with FOX News.
One way to assuage the fears of some cable news anchors is for Special Prosecutor Jack Smith to have Trump indicted by a grand jury in New Jersey or perhaps Washington, D.C. Trump possessed government documents in both places, both as president and former president. Either jurisdiction would eliminate Judge Cannon and, theoretically, provide a jury pool more favorable to the government and more anti-Trump.
Of course, the appointed judge concern could be remedied by enacting my repeated recommendations for all federal judges to have term limits and to be chosen in fair and free elections. Alas, those pleas have so far been drowned out by the cacophony from the mis-named merit-selection voices. Therefore, we will currently have to deal with our highly political and extremely anti-democratic system of having our federal judges chosen in smoke-filled rooms and the oval office. So, let’s stick with the jury selection issues for Mr. Trump’s case or possibly cases if Jack Smith decides to hedge his bets and bring charges in more government friendly climes than Florida.
To me, our fears should be of potentially fatal damage to our democracy from a country that may have lost sight of how critical public faith in our legal system is. We know there is already great cynicism about our executive and legislative branches. Our constitutional three-branch balancing act relies on faith that when the Presidency and Congress ooze near the abyss, a public belief in a fair, just and independent judicial branch can keep us from teetering over.
One of America’s earliest jury trials illustrates how this fragile system should work. In the 1730’s when we were still British subjects, John Peter Zenger who published The New York Weekly Journal, publicly criticized colonial governor William Cosby who had Zenger arrested. At a jury trial, Zenger’s attorneys persuaded the jury to “nullify” the existing written law and acquit Zenger. Zenger’s peers defied the government. Such action by a Florida jury is the concern of some. What such commentators suggest as a fallback plan is to have Trump tried elsewhere and in front of some judge other than Eileen Cannon.
This Gordian Knot dilemma is what we as a country are experiencing when, for the first time in history, the currently in-office executive branch seeks a jury trial of a former head of the same branch. Such a crucible has all the possible national angst of fire and brimstone speeches from legislators, castigation of all three branches by media pundits, polemics at thousands of taverns, coffee shops and perhaps even religious or educational institutions.
There may be allegations of Star Chamber proceedings, Joan of Arc’s burning at the stake, or even the trial of Jesus. It will be a wild ride but, as long as we do not lose sight of what’s really important, that is Prince Harry’s and Meghan’s travails, as soon as the football season returns, we will be okay.
Las Vegas In The Osage
Alright, I finally give it up; my 1950’s Saturday morning black and white Cowboy and Indian movies at the Kihekah Theater in Pawhuska, Oklahoma are truly gone. They have been blown away like a prairie tornado by the big band sounds of Wade Tower and his marvelous musicians. Ah well, since Pawhuska is the capital of the Osage Indian Nation, we were always ambivalent as to which side to root for anyway.
On Saturday, June 03, 2023 from three to five in the afternoon Wade and his players with the multiple octaves and complicated rhythms transformed my old Kihekah Theater to the renovated Constantine Theatre and transported the audience across the plains to a séance with Frank Sinatra and Elvis Presley. It was exciting and refreshing to experience music that did not repeat ad nauseum a single beat and three banging chords. Although Wade did manage to pay homage to his Oklahoma roots with a little George Strait. He also got the audience singing along and gyrating to Neil Diamond’s “Sweet Caroline”, although I suspect alcohol may have been sitting in as a contributor from the appreciative audience. Wade and his Blues Brothers-dressed band members filled the ornate and historic Constantine with the kind of music and talent the old venue has not seen since my brother, C.E. Redwine, reprised his Oklahoma State University Blue Note Band there in 1994 when the newly renovated Constantine was re-dedicated. In fact, Floyd Haynes, who is Wade’s bandleader, reminded me of C.E.’s Paul Desmond quality saxophone playing.
Each of Wade’s ensemble was terrific. Wade’s vocals were powerful, sensitive and truly enjoyable. Sean Johnson on the tenor sax, Zac Lee sliding the trombone, Ryan Sharp on the trumpet, Chase Gulliver on drums, Vince Norman, keyboard, Rod Clark, bass and the justly featured Jerry Connel on lead guitar were solo quality artists. It was so exhilarating to feel each solid note and each changing key and modified rhythm. I like country music, but there are reasons there are seven notes with wonderfully complex sharps and flats as possibilities and multiple key signatures along with intricate tempos. Thank you Wade and your band for knowing and applying the full range of them. And further kudos go to the light and sound technicians who did a terrific job helping to bring Vegas to Pawhuska.
Also, thank you to the Board of the Constantine Theatre for your foresight and good taste in contracting with Wade Tower to perform every Saturday at 3:00 p.m. up to December 2023. Peg and I are eagerly looking forward to enjoying Las Vegas in the Osage again.
Lip Service
Marjorie Taylor Greene from Georgia and some other members of Congress took a fifteen-minute recess from regular duties to raise money for the National Republican Committee. One hundred thousand dollars was raised in a quarter of an hour when Speaker of the House Kevin McCarthy pulled out his tube of used cherry flavored Chapstick and auctioned it off. McCarthy is from California so such economic disequilibrium is not surprising to Americans who follow reports of calls for five million dollar per person reparations in San Francisco and especially when Georgia’s Greene was the winning bidder.
This impromptu fundraiser took place in the halls of Congress on Tuesday, May 23rd. Such tangential matters as the then impending default on our 31 trillion dollars national debt and the 30 billion dollars worth of military armaments we have given to Ukraine pale in significance to the issue of chapped lips. Perhaps fifteen minutes spent on funding social security or avoiding a nuclear war with Russia could be squeezed into Congress’ agenda. It is certainly impressive how the essential matter of financing political campaigns could be so quickly addressed by our politicians.
Of course, America is not the only country that pays lip service to grave matters while politicians and the news media, including newspaper columnists, concentrate on bruised lips and egos. Meghan Markle sought to bring down the British monarchy before she had even joined it by demanding to use Kate Middleton’s Clarins Natural Lip Protector during a February 28, 2018 meeting of the Royal Foundation Forum. Kate and William were shocked and Meghan and Harry were offended that Kate and William were shocked. A toppling of the throne was averted by Meghan squeezing some balm out of the tube onto her finger instead of applying it directly to her lips.
The backdrop for Meghan’s royal faux pas was the first public event to initiate the Royal Foundation Forum which was established to help fund charitable causes such as mental health needs. Naturally, the failure of British etiquette by the plebeian American received more coverage than the fund raising. Harry even saw fit to highlight it in his family confessional book, Spare.
I suppose it is too much to expect the British public to be less concerned with the battle among the royals over lip gloss than the Battle of Hastings. Nor should we be surprised if our Congress can find time to quickly fund political campaigns but not the national debt. But, Gentle Reader, wouldn’t it be refreshing and bring smiles to our faces if such topics were the fodder of columnists instead of chapped and colored lips?
Change, Change, Change
United States Supreme Court Justice Clarence Thomas was nominated by President George H.W. Bush as the replacement for Black Justice Thurgood Marshall. Thomas is the Court’s longest serving and oldest justice; he will be 75 years old in June 2023 and has been on the Court since 1991. Thomas was chosen by President Bush, a conservative Republican, because he was Black. Could Thomas have been elected to the court in a fair and open national election? I doubt it, as his nomination hearing in the Senate was, as Thomas described it, “a high-tech lynching” and his fate with the majority white electorate would have been questionable. In 1991, of the 100 senators not one was Black. Thomas was known to be archly conservative and strongly anti-abortion. Although a Black man, Thomas was denigrated by Anita Hill, a Black female attorney, during his confirmation hearing.
Thurgood Marshall was known to be a highly activist liberal lawyer whose most famous case before the Supreme Court as an attorney was the 1954 Supreme Court decision of Brown v. Board of Education of Topeka that reversed over fifty years of “Separate but Equal” precedent. Marshall was nominated to the Court in 1967 by Democrat Lyndon B. Johnson. Johnson chose Marshall mainly because he was Black.
Both Marshall and Thomas had other qualifications to be on the Court but their race was the determinative factor. Would Marshall have been elected to the Court in a fair and open national election? I doubt it as even though his nomination hearing before the Senate was not as fractious as Thomas’, he was still vigorously opposed by several white segregationist senators. Marshall was seen as a likely activist liberal jurist and history proved that correct. White voters most likely would have refused to elect him to the Court.
Marshall and Thomas, the first Black members of the Court, and Sandra Day O’Conner, the first female member confirmed in 1981, would have almost certainly not been elected to the Court in a fair and open national election. But fortunately, times are changing, too slowly for many, but still greatly changing from the times when women could not vote and Blacks had to ride in the back of the bus.
So, if I do not believe that women, Blacks and “others” might historically have had little chance in fair and open Supreme Court elections until ceilings began to crack and color lines began to blur in the 1960’s, why do I now call for federal judges to be elected and have term limits? Because true democracy is our best hope to hasten the promise of America to the great majority of marginalized citizens who have been denied it. As that icon of the 60’s, Bob Dylan, sang:
“Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
The battle outside ragin’
Will soon shake your windows
And rattle your walls
For the times they are a-changing.”
Of course, for those who have, “… suffered the slings and arrows of outrageous fortune,” change is never large enough or fast enough. However, if we mark America’s progress toward all people being equal from the date of our Constitution in 1789, hope is not hollow. Blacks who were slaves and women who could not vote in 1789 can now serve on the Supreme Court. We still have not had a Native American Supreme Court justice however they are no longer merely “Indians not taxed” for census purposes but are now citizens. Perhaps a free and fair national election would produce an Indian justice. Since the Native American voter base is so small, it is unlikely any president would nominate an Indian. However, a Native American could file to run for a seat on the Court and today maybe have a fighting chance.
The white men who wrote and have long interpreted the Constitution have not ceded their preferred positions without constant pressure. On the other hand, much has changed in over 200 years though there is still much more change needed. Old methods of autocracy masquerading as democracy will not bring opportunity for all to participate in the promises of our Constitution. Our current system of selecting members of the Court has produced two Black men and one Black woman as well as five white women and 107 white men. The system has long out-lived any efficacy it might have once had.
Our country no longer even feigns belief the Court is not a highly partisan political entity whose decisions often reek of prejudice. America should be for all citizens. We should not have an entire branch of our government in the strangle hold of a very few people, mainly one president and 100 senators. If, as many suspect, the justices on the Supreme Court are merely politicians in robes, why not make the political selection process a democratic one and let all citizens have a say? Surely fair and free national elections could do no worse than the “inside baseball” of a few, mainly white, mainly male politicians. And while we are at it, let’s institute term limits for all federal judges so we can actually live the democracy we now only pay lip service to when it comes to our Judicial Branch?
It’s Just A Number
An ABC News/Washington Post Poll taken Sunday, May 07, 2023 of likely voters in the 2024 Presidential election had 68% of Americans saying Joe Biden is too old to be president next term. The same poll says only 44% think Donald Trump could be too old to serve. Biden is now 80 and Trump is now 76.
Joe Biden is claimed to have a fetish about sniffing the hair of women who are not his wife. Trump is alleged to have sexually assaulted several women to whom he was not married. If the American public’s fascination with sexual activity by characters on TV, in movies and books is considered in the choosing of our political leaders, we can postulate there may be a virility factor in play in choosing between our current and former president.
Apparently, the four-year difference in what will be two octogenarian relics by the end of the next term is of material importance to most voters. Neither old guy is the John F. Kennedy sex symbol he may see himself to be but the public appears to prefer its senility a little more virile, at least by reputation. Of course, it is possible neither Biden nor Trump will be on the ballot in 2024 as some dark horse may yet rush in to take all the perks of the presidency.
Of course, sexuality is only one element of a candidate’s character. We should examine the policies and performance of both Biden and Trump. In that regard, some like Trump’s stance on immigration and some like Biden’s. The same is true on the economy, cultural issues and international relations among many other issues. That is why we have elections and campaigns. But just as the coronation of King Charles III seemed to find the media concentrating on which crowns and robes Charles and Camilla donned as well as which handbag Kate carried as opposed to the substance of Charles’ vision for Great Britain’s future, it will not surprise any of us if the national media miss all the policy differences any of the candidates may have as the media focuses on the titillation of each person’s peccadilloes. Of course, the reason the media will do this is because that is what most of us are interested in. Policy is just so common.
Superannuated lotharios may be past their prime but they are more interesting than policy differences. As for me, Gentle Reader, for personal reasons, I choose to believe either Joey or Donnie or some other codger or even a 35-year-old could serve okay if the only consideration is age. Now whether we happen upon anyone who should lead this great country for the years 2025-2028, well, I must leave that lucky guess to each of you and the fickle folly of fate.