Columns
Sound And Fury
William Shakespeare could have been describing Congress instead of life when he wrote:
“It is a tale told by an idiot, full of sound and fury signifying nothing.”
Macbeth (Act 5, Scene 5)
The U.S. Congress has assumed for itself the role of ethics advisor to the U.S. Supreme Court. Congress is so upset about recent Court decisions it is demanding that the Court adopt a binding code of judicial conduct (the U.S. Supreme Court has none now). Congress as the arbiter of Court morality brings forth an analogy of Jezebel as the paragon of Babylon.
It is not that the Supreme Court justices have not often acted unethically, it is just not a rational solution to turn to Congress for our relief. Real and permanent reform will not come from Congressional hearings and legislation nor does human nature suggest it will come from within the Court regardless of any ethical rules.
On December 8, 2022 in a hearing before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet a representative of the bipartisan Project on Government Oversight testified:
“Every justice who has served in the last decade has done something that has raised questions about propriety and impartiality.”
Then documented cases of unethical conduct by individual Supreme Court justices were submitted. It did not matter whether it was a darling of the left such as Ruth Bader Ginsburg, Elena Kagan or Sonia Sotomayor or a hero of the right such as Antonin Scalia, Samuel Alito or Clarence Thomas, all had been found wanting. Of course, had anyone investigated the members of Congress during the past decade the results would have been similar.
Both Congressional members and members of the Supreme Court seem to become surprisingly wealthy on their rather mundane salaries. Perhaps they are all just frugal. Or maybe it is just my envy of such “good luck” as Sonia Sotomayor had in earning three million dollars on her book when I, as a writer myself, am still selling out of my car’s trunk one book at a time instead of having my old court staff hawking them or me. Also, Peg and I would most likely have enjoyed a cruise on Clarence Thomas’ friend’s yacht.
However, the real issue is not are the justices being unethical, of course they sometimes are; most humans are at least sometimes. It is only sin if seen through the eyes of someone who disagrees with a justice’s judicial philosophy. Ginsburg was a saint and Ketanji Jackson is becoming one as far as liberals are concerned. Scalia was a contemporary John Marshall and Samuel Alito has an ermine robe in the eyes of conservatives, But Gentle Reader, they are just as you and I, human and opinionated; that is why they were nominated and confirmed by politicians.
If you have read several of the more than 1,000 columns I have written and published since 1990, you may recall I have often called for Court reform. If Congress truly wishes to “do good”, they should amend our Constitution and devise a system of democratically electing federal judges who do not have life-tenure. Please, members of Congress, stop posturing from the right and left and legislate for the good of all of us. After all, we finally ended slavery and gave women the right to vote. Our 28th Amendment to the Constitution might help preserve our democracy instead of just shouting fire while we watch the Supreme Court burn.
Say What?
Joseph Campbell says humans, homo sapiens, have created myths since there were humans, about 250,000 years. We create myths out of our hopes and fears but also our necessity to carry on the species. What Campbell notes is how similar human myths are regardless of who creates them or when. Campbell (1904-1987), who was reared a Catholic, was a professor of literature at Sarah Lawrence College where he concentrated on comparative myths and religions. He is best known to most of us as the guru to movie producer George Lucas during the Star Wars saga where the audience easily accepted the myths of good and evil because they resonated with every culture.
In 1972 a few years before his work on Star Wars, Campbell wrote his book Myths to Live By that I have recently enjoyed but struggled with; it sounds benign but is not for casual diversion. However, the ordeal of the mental expedition is worth the exertion.
One can take hints from Campbell’s long-time employer, Sarah Lawrence College that is a small liberal arts institution whose motto is “Wisdom with understanding” and whose mascot is the mythical gryphon. Campbell, the recognized authority on mythology, and Sarah Lawrence formed a long-standing symbiotic relationship. Campbell’s central thesis is that myths are both universal and essential to civilization. He posits we should investigate and understand our culture’s myths and we fail to do so at our peril. Campbell cautions that when we falsely believe our myths are facts, we lose the benefits of the myths and can transform them into detriments.
Campbell examines the myths of numerous societies and concludes:
“Now the peoples of all the great civilizations everywhere have been prone to interpret their own symbolic figures literally, and so to regard themselves as favored in a special way, in direct contact with the Absolute.”
Campbell analyzes several of the world’s religions and states while they may be able to view other religions sympathetically, each thinks of their own as superior and often regard the gods of other religions as no gods at all but as devils and those who worship them as “godless”. On the other hand, for centuries adherents in Mecca, Rome and Jerusalem as well as Peking and India see themselves as “the chosen ones” directly connected with the Kingdom of Light or of God.
Then Campbell puts things in modern, scientific and historical perspective:
“However, today such claims can no longer be taken seriously by anyone with even a kindergarten education.”
See p.10 of Myths to Live By.
Then Campbell does not dismiss myths or the religions based on them. Instead, he warns of the destabilizing forces in societies who do not understand their social orders are a product of their myths and that they lose contact with the morals engendered by their myths to the society’s detriment. As Campbell says:
“For since it has always been on myths that the moral orders of societies have been founded, the myths canonized as religion, and since the impact of science on myths results – apparently inevitably – in moral disequilibration, … (it is imperative that) we do not misrepresent and disqualify their necessity – …”
Well, Gentle Reader, I have already confessed the angst Campbell’s thoughts have caused me. The passing of Joseph Campbell reminds me of that marvelous description of Jay Gatsby in F. Scott Fitzgerald’s novel The Great Gatsby:
“…[H]is mind would never again romp like the mind of God.”
Or, as Campbell might have said, “Any of the gods”.
As I struggle with Campbell’s encyclopedic knowledge of life and how myth is essential to it, I conclude as Campbell teaches, we need our myths and we need to recognize them as such.
A Birthday Party
Ever since my mother’s three brothers and one of her three sisters returned home from serving in World War II my family has gathered for a Fourth of July reunion. While competing circumstances have caused some hiatuses over the last seventy-seven years, we have been fairly consistent in our celebration of life. We do what all families do at reunions, meet, eat and subconsciously soak in the subtle changes from childhood to absence.
Those changes are what John Denver wrote about in 1971 in his song Poems, Prayers and Promises:
♪ The days they pass so quickly now, nights are seldom long
Time around me whispers when it’s cold
The changes somehow frighten me, still I have to smile
It turns me on to think of growing old ♪
Denver, as I was, was born in 1943, therefore he was only 28 when he was contemplating aging. He died in a plane crash in 1997 so his early thoughts about growing old were prescient. When I listen to his young man’s song about encroaching old age I am impressed, and sobered, by his understanding of the physical and emotional aspects of aging. I do not recall even the vaguest concern of not being 28; I am now more aware.
Our current political debate is highlighted by President Biden’s age of 80 and former President Trump’s 77. Depending upon our partisan preferences we monitor each man’s speech and movements in a search for affirmation or condemnation of our hopes or fears for our nation. For although the United States just celebrated our 247th birthday, we Americans think of ourselves as a young, vibrant country that is always trying to perfect our union. The young John Kennedy is our ideal. We may need the wisdom sometimes brought by age but we crave the vitality often born of youth.
But age does not guarantee good judgment and youth may encourage recklessness. Each of us knows the angst of experiencing what Camelot’s Guinevere called for, and eventually obtained, “A day she would always rue”. Ben Franklin was 70 years old in 1776 and George Washington was 44. Most people would say both men had good judgment. Both showed wisdom and courage, two of the character traits we need in our leaders. Their age was not a factor. As John Denver concluded, “It’s been a good life all and all” and:
♪ How sweet it is to love someone, how right it is to care
How long it’s been since yesterday and what about tomorrow?
What about our dreams and all the memories we share? ♪
Well, back to our family’s Fourth of July Reunion. The singing was poignant, the bar-b-q was well seasoned, some members were young, some no longer were and, of course, numerous loved ones were sadly no longer with us. However, “I have to say it now, the changes do not frighten me” and next year will bring more. Some will be melancholy, some will be challenging, some will be interesting, but what it all will be is a continuing party.
Of Wives And Husbands
F. Scott Fitzgerald observed, “The rich are different from you and me.” That truism is echoed by the lament, “Wives are different from husbands”. Both the lives of the wealthy and the workings of the female mind are inscrutable to the average husband, a group I confess membership in. With Peg and me, the mysteries of what she really wants would stump Agatha Christie. Early in our marriage I took it for granted that when Peg said, “Oh, that’s okay”, she really meant it was okay if some vague suggestion she made went by without a response from me, say something such as, “I’d like to have that (something) done”. But now, after many years of me not doing what she indicated she did not need me to do causing a chilly atmosphere, I can sometimes decipher when action is called for.
Household chores are the main catalyst for miscalculations on my part. I just do not feel the urgency Peg does to immediately pick up, move, dust, put away, file, shelve, dig, catalogue, clean, repair, mow, shovel, etc.
And when I point out the Biblical wisdom of Matthew 6:34, you know, “Sufficient unto the day is the evil thereof”, Peg accuses me of only misciting scripture to dodge work. My response to that is, “That’s a time-honored tradition”. I submit:
“Therefore, do not be anxious about tomorrow, For tomorrow will be anxious for itself. Let the day’s own trouble be sufficient for the day.”
Now, I ask you my fair and Gentle Reader, is that not sufficient for any wife/husband domestic colloquy?
You may wonder, or you may not care, what has any of this lament to do with our just past Fourth of July holiday? Well, I’ll tell you. Peg and I just hosted the traditional Redwine 4th of July Family Reunion that I believed was to celebrate our country’s birthday, but Peg saw as a call for our home to be prepared for military inspection. I was perfectly happy with icing down some beer and getting my clothes off door knobs. Ah, mon ami, not so fast.
Peg dedicated the entire month of June to house cleaning and “suggesting” that I accompany her to Walmart and Dollar General to shop for reunion “essentials”. And, of course, imbedded in her mission statement were a myriad of chores that I was supposed to somehow divine from her occasional, “Jim, such and such needs doing”. And, if I might not immediately pick up on her “gentle” suggestion, Biblical verses were no shield.
Anyway, we and our patriotic family had a wonderful time reflecting upon how lucky we all are to have had Founders who had the wisdom and courage to establish these United States. And Peg appears to have recovered from my obtuse inability to grasp her intentions. Of course, she has had numerous experiences that have aided that understanding.
Other Countries Heard From
President Kennedy gave his inaugural address January 20, 1961 when I was a senior in high school. He was concerned about the Soviet Union’s 1957 Sputnik achievement and challenged American youth to respond. That September I entered Oklahoma State University and boldly majored in physics. By June 1962 I had learned how to smoke but not learned anything that would raise concerns in Russia. I changed my major to English and then in June 1963 decided to “ask what I could do for my country” without the headaches of college level studies. I became a 1960’s Okie and headed for California. On the way I took my first foray out of the United States to Nogales, Mexico.
My friend and fellow OSU dropout, Ed Kelso, and I drove his 1954 Mercury down to the Mexican border and were waved through without so much as a question, much less a visa. We stopped at the first bar we came to and ran into my old high school classmate Jim Reed and a few other guys from Pawhuska, Oklahoma who were there on a similar journey of cultural discovery. What I noted from my brief sojourn was my high school Spanish was sufficient as long as we had U.S. Dollars. I also received my first faint awareness of how lucky I was to have been born north of the border.
Another foreign country experience was when as a member of the National Judicial College faculty I was sent for two weeks (December 1999-January 2000) to Ukraine to teach Ukrainian judges. I liked the Ukrainian people but found their lives to be quite difficult. The judges told me they frequently did not receive their small monthly salaries and the Ukrainian government often failed to provide them and their families with promised individual family housing. Also, police corruption was in full view on the streets of Kiev and workers who were supposed to help repair such public assets as the fountain in “Freedom Square” did about as much work as I did at Oklahoma State. As the old Soviet saying went, “The government pretended to pay them and they pretended to work.” I left Ukraine with a greater appreciation of what our Founders sacrificed for us.
Then in 2003 the National Judicial College sent me to Russia for a week to teach Russian judges about jury trials. The old Soviet Union abolished jury trials after the 1917 Revolution and Russia was just reinstituting them into their legal system. Peg was able to be with me on that trip and we, once again, found the Russian judges to be friendly and gracious but the Russian culture caused us great chagrin. A good cup of coffee was truly a foreign concept, but the consumption of alcohol was quite prevalent. The idea of innocent unless proven guilty was belied by the defendants being housed in metal and plastic cages in the courtroom. And when a defendant on trial for murder was marched into the courtroom by four AK47 carrying uniformed guards right in front of the jury, my American sense of justice was assaulted. It was good to get back to my Indiana courtroom with its guarantees of equal justice. Russia was interesting, but the United States was good to come home to.
Most recently (June 2022-February 2023) Peg and I completed a six-month judicial teaching mission sponsored by the American Bar Association, the East-West Management Institute and the United States Agency for International Development. I was sent to the country of Georgia that until 1991 had been part of the old Soviet Union. My duties were to make friends, observe, work with and give suggestions to Georgian judges based upon my more than forty years of experience as an American judge.
We had a wonderful experience with the Georgian judges and our newly-made Georgian friends. They could not have treated us any better. Everyone we met was positive about our involvement and open to suggestions. We would gladly return to Georgia whenever invited. Of course, we did note substantial differences between the Georgian culture and America’s. Georgia is bordered on the north by Russia and on the south by Turkey. Twenty percent of Georgia is militarily occupied by Russia; that is a constant worry for the Georgian people. Peg and I thought how different our lives in America are. Our northern border is Canada which we visited in 2018 and is about as good a neighbor as any country could have. And our southern border is Mexico that appears to want to join us.
What this 2023 Fourth of July birthday party has helped us to reflect upon is, no matter how much CNN, MSNBC, FOX News and many in government service complain about America and malign it, many of the alternatives are pretty scary. After seeing how some of the rest of the world has to live, I find the ’ole USA absolutely marvelous. America has faults and foibles, but as Francis Scott Key wrote, it is really wonderful, “That our flag is still there.”
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.