James M. Redwine

President Biden

Leadership

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President Biden has one more week as president to help bind up our nation’s wounds. America’s electorate is almost evenly divided by MAGA supporters and anti-MAGA supporters. Going to a favorite coffee shop or pub has taken on a certain ennui for many of us who used to look forward to seeing friends and discussing timely issues. What used to be lively and enlightening conversations has morphed into dreaded exercises in avoiding issues of substance. The nation’s political discourse has devolved from constructive give and take to animus. Important issues are currently not worth the disappointment to risk discussing. Leadership is needed to encourage us all to open our minds so we can face many important issues that, if not faced, may do real harm to our country and perhaps others.

That is the premise behind the prescient article by Indiana University Law Professor Timothy William Waters published January 06, 2025 via Politico, four years after the incident at our capitol. Professor Waters calls for President Joe Biden to pardon the rioters as an act that would help bridge our nation’s great divide between MAGA and anti-MAGA. Such a magnanimous and courageous act would speak to both sides and could apply some healing balm to our fractious society.

I doubt Professor Waters believes his well-reasoned analysis of the dangers of a house divided is an original thought. Someone wise enough to advocate for such a brave act of leadership almost certainly is simply recommending a particular treatment for our ailing condition. Wise people have realized for thousands of years that peace is more constructive and less destructive than war. I do not know Professor Waters but his article is written as one that demonstrates an attitude of helpfulness not hubris.

From Jesus to Abraham Lincoln to Gerald Ford and many more, we humans have long known that “malice towards none and charity for all” is not behavior that is only good for those we disagree with but for us too. Such acts as the mean-spirited treatment of Germany after WWI that led to WWII versus the Marshall Plan that re-made Germany into an ally after WWII, teach us that vengeance is not only morally corrupt and selfish but ignorant and self-destructive.

 Pardons are to presidents what mediation, probation and parole are to courts. They acknowledge the sins but affirm the possibility of our nation of laws whose mission seeks redemption, not retribution. President Gerald Ford by his pardon of President Richard Nixon used his presidential pardon as it was intended. He helped bind our nation’s wounds at a time we sorely needed it. I realized this and wrote a Gavel Gamut column about it when President Ford died in 2007. I have included it as part of this column.

Perhaps Professor Waters’ article will encourage President Biden and possibly President Trump to show the same type of leadership President Ford did.

PARDON ME, PRESIDENT FORD
(Week of January 8, 2007)

President Gerald Ford died December 26, 2006.  In a life filled with public service, he will always be best known for his pardon of President Nixon in 1974.

President Nixon personally chose Gerald Ford to replace the disgraced Vice-President Spiro Agnew who resigned in 1973 amid disclosures of bribery while Agnew was Governor of Maryland.

Vice-President Ford served under President Nixon until Nixon resigned in August of 1974.  One month after President Nixon resigned, President Ford issued him a full pardon for any crimes he may have committed while president.

At the time, I and most Americans were calling for a complete investigation of the Watergate debacle and especially Nixon’s involvement in it.  It was a time of a media feeding frenzy and blood in the water.

President Ford took the unprecedented step of going personally before Congress and flatly stating that President Nixon and then Vice-President Ford had no deal to pardon Nixon if he would resign.

I recall how dubious I was when President Ford stated that he issued the pardon only to help our country to start healing from the loss of confidence caused by Watergate.

Yet, after a few months I began to have second thoughts about my initial reaction to the pardon.  I began to see how much courage it took for President Ford to go straight into the anti-Nixon firestorm sweeping the United States.

As a country, we were almost paralyzed by the partisan fighting at home and the War in Viet Nam.  We needed a new direction and a renewed spirit.

Surely President Ford with his twenty-two (22) years in Congress knew he was committing political suicide by not giving us our pound of flesh.  Still, he put his country first.  Of course, the country rewarded his sacrifice by booting him from office and electing President Jimmy Carter to replace him.

But during the campaign of 1976, when President Ford came to Evansville on April the 23rd, I took my son, Jim, out of school and we went to the Downtown Walkway to cheer the man who put country above self.

For while William Shakespeare may almost always get his character analysis right, when it came to President Ford, “The good he did lived after him.”   Julius Caesar, Act III, sc. ii.

Even President Carter, one of America’s most courageous and best former presidents said of President Ford:

“President Ford was one of the most admirable public servants I have ever known.”

And when it came to the pardon of President Nixon, Senator Ted Kennedy, while admitting that he had severely criticized the pardon in 1974, said that he had come to realize that:

                                    “The pardon was an extraordinary act of courage that historians recognize was truly in the national interest.”

So, President Ford, since even your political opponents came to appreciate your courage and goodness, I am confident that you have long ago “pardoned” all of us who doubted you back when we needed your leadership.

Change the Court

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 On July 29, 2024, President Biden proposed that justices of the United States Supreme Court serve a maximum of eighteen years instead of “during good behavior” as Article III of the Constitution provides. On June 18, 2024 CNN Commentator Fareed Zakaria made a similar proposal. Biden and Zakaria are liberals who are upset with the Supreme Court’s current conservative majority.

In the turbulent 1950’s and 1960’s the Supreme Court was led by a liberal majority headed by Chief Justice Earl Warren. Much of America was so upset by the Court’s decisions on civil rights there were billboards on our nation’s highways calling for Warren’s impeachment.

It is not unusual for cases before the Supreme Court to cheer many and anger others. Matters end up in the Supreme Court because citizens have opposing views on hot-button issues. That’s what courts are for. It is better to go to court than go to war.

 Of course, if the public loses confidence in the justice provided by the Court, war could still result. According to Gallop polling from July, 2024, 52% of Americans disapprove of the way the United States Supreme Court is doing its job. Hence, we once again are hearing demands for “court reform”, which to the dissenters means changes that would create a court that agrees with their views.

The dissatisfaction that sways left and right with the Court’s decisions is improperly addressed to the individuals or contemporary majority. The solutions are within our constitutional republic’s power. We do not need to put up with frustration with the Court’s fallible humans; what we need is to change the way the Court is composed. And we have the power to do it. We have amended our Constitution 27 times already for such things as women getting the vote. We can amend it again to re-establish confidence in our third branch of government.

Rational minds can differ as to the details but the essence of reform is already apparent. America needs to reaffirm our commitment to our solid foundation of three equal and separate branches of our republican form of our unique democracy. First, we need term limits; I suggest that since our presidents can only serve 8 total years that Supreme Court justices be limited to 10.

Second, we need to change our method of selecting our justices. Currently only 101 Americans, out of over 330 million have any say in who serves on the Supreme Court. The single presiding president nominates a potential justice, for life, and the 100 members of the Senate “advise and consent” to the nomination. We need to involve the rest of America’s voters in these vital decisions. I suggest we develop a non-partisans competitive election where qualified candidates can be “vetted” by all of us.

I do have further suggestions, but as I have already written and published over 30 Gavel Gamut columns on the Supreme Court from 1990 to today, I’ll just make these “modest proposals” for now.

Perhaps we’ll meet again on these issues later as the complexity and importance of modifying an entire branch of our government may require more than a couple of pages from one columnist. Feel free to join in, Gentle Reader.

 

What Is The Score?

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80th birthday! Photo by Peg Redwine.

Psalms, Book IV, Chapter 90, verse 10 should be avoided by anyone who is nearing or has reached 80 years of age:

“The years of our life are threescore and ten,

Or even by reason of strength fourscore;

Yet their span is but toil and trouble;

They are soon gone, and we fly away.”

I make no comment on 80-year-old President Biden or 77-year-old Former President Trump. If both men are on the November 2024 ballot the voters can exercise their own judgment. And, should some other person lead either or both slates, the news media will make sure that their callow youth or doddering age are thoroughly exposed. And it will not matter anyway if the Bible is any guide because as the Book of Ecclesiastes, Chapter I, verse 9 advises:

“What has been is what will be,

And what has been done is

What will be done;

And there is nothing new under the sun.”

Now, Gentle Reader, you may be of such an age that 80 seems but a pleasant temperature, not a grave specter or condition of daily life. However, as one who has recently joined the Four Score assemblage, I respectfully refer you back to Ecclesiastes, Chapter 4 verse 13:

“Better is a poor and wise youth

Than an old and foolish king

Who will no longer take advice.”

In other words, the mere arriving at or near 80 is not much of an accomplishment. Whether our leaders are 18 or 80 is not the relevant consideration; it is wisdom that matters and wisdom is not guaranteed by age nor is exuberant recklessness always the province of youth.

But what I have unfortunately come to experience is that diet and exercise mean little to most people who reach the “three score and ten” plateau. “Magic bullets” as trumpeted on countless television commercials do not really contain any magic. Sure, it is a good idea to not be sedentary or overeat at any age. However, no matter what good habits old people engage in, the battle still goes to the strong and the race to the swift. And those two truisms are proved by the rosters of any professional sport team and the ages of university faculties. Yes, some emeritus scholars still fill chairs so colleges can raise their images, and contributions, but doddering is not a productive exercise nor hardly inspiring.

Those near or in the octogenarian grouping are old enough to remember the Viet Nam War, the Gulf War and the Iraq War; of course, an awareness of the Ukrainian tragedy is inescapable. Yet we appear to be digging in deeper in numerous military briar patches while we have great humanitarian needs at home and abroad. Those of us who lived through Viet Nam are puzzled by others who did also yet vigorously have us engaged in numerous similar new quagmires.

Perhaps the real lesson some 80-year-olds, and many less than 80, anticipate is that there really is nothing new under the sun except the aches and pains we never truly expected should it be our lot to live long enough to experience them. On the other hand, as that eternal optimist, and opportunist, Scarlett O’Hara, said in Gone With The Wind, “Tomorrow is another day”. At least we all hope so regardless of the Sturm und Drang. As Robert Frost pointed out, all we have is the struggle so we better make up our minds to enjoy it regardless. Therefore, I’ll just pull myself up and say Happy Birthday to all my fellow Leo’s, especially the Four Score ones.

 

Political Winds Should Shift

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President Biden has promised to nominate an African American woman to replace retiring Associate Supreme Court Justice Stephen Breyer. The U.S. Supreme Court is generally accepted as having a liberal wing: Breyer, Sonia Sotomayor and Elena Kagan; and a conservative wing, Clarence Thomas, Amy Coney Barrett, Samuel Alito and Neil Gorsuch. Chief Justice John Roberts and Brett Kavanaugh vacillate but tend toward the conservative side.

The liberals were nominated by liberal Democrat presidents and the conservatives and semi-conservatives were nominated by conservative Republican presidents. Each American president was elected by majority popular vote and the Electoral College. The philosophies and political positions of each president were well known to the electorate beforehand via contested campaigns. Most voters are aware the members of the Supreme Court, and all other federal judges, are nominated by whoever the president in office is whenever there is a vacancy on a federal court or when a newly created court needs a judge.

But whereas our presidents, due to the 22nd Amendment to the Constitution, may serve only two, four-year terms, Article III section one of the Constitution provides federal judges … “[s]hall hold office during good behavior.” Although it has never been tested, this provision has normally been viewed as providing life-time tenure for federal judges. And since the U.S. Supreme Court under the guidance of Chief Justice John Marshall in 1803 took for itself the power to determine what our Constitution means, if the issue arises the members of the Supreme Court will themselves decide if they should have life-time jobs. See Marbury vs. Madison (1803), 5 U.S. 137.

Therefore, the Constitution might have to be amended to set term limits for federal judges. However, we have amended our founding document twenty-seven times already so we could do so again. An amendment takes a vote by 2/3 of each body of Congress and ratification by 3/4 of the states. That is how women finally got the right to vote and we all got numerous other rights such as Freedom of Speech.

The debate over whether Supreme Court justices are political is vacuous. They are chosen via a political process. They represent a third branch of our political system. We casually identify the justices as liberals or conservative or swing votes. The Supreme Court is a political creation and remains a political part of our democracy, by design. The issue we should be discussing is what is good for America and the answer is limited terms for federal judges. If a president can be elected because of her or his policies then replaced no later than eight years later by someone with different views and a different background, so should courts have their particular perspectives and prejudices evolve every few years. We should not have to wait for Mother Nature to get new and diverse views from justices and other federal judges.

Judges, just like every other human, have prejudices and political leanings. That is not only to be expected but should be celebrated in our democracy. The fact, and it is a fact, that every judge brings her or his background to the Bench should not be news. However, America needs to protect itself from entrenched partisan views being cast in biological stone. A ten-year term for all federal judges is 25% longer than a president’s maximum allotment. Ten years is plenty and if we provide a life-time pension for ex-judges as is already set out in 28 U.S. Code §294 we should have no problem getting qualified judges to serve.

A Limited Tenure

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President Biden has announced his intention to nominate an African American woman for the Senate to advise and consent for service on the United States Supreme Court. At the risk of being embroiled in a Whoopi Goldberg “Jewish is not a race issue type of discussion”, I suggest neither race nor gender is the issue for whomever is nominated.  Politics is always what membership on the Supreme Court is about.

From the highly political John Marshall (years on Court 1801-1835) to the highly political Ruth Bader Ginsberg (years on Court 1998-2020) the justices of the U.S. Supreme Court have often worn their politics on the sleeves of their robes. Marshall was nominated by President John Adams. Ginsberg was nominated by President Bill Clinton. Americans who agreed with Adams’ political positions generally agreed with Marshall’s decisions and those who leaned in Clinton’s policy directions championed Ginsberg’s. We should not be surprised if a president nominates someone whose political tendencies match the president’s. It is not a justice’s race or gender that matters; it is their philosophies.

Sometimes when a president, liberal or conservative, chooses a justice, that justice turns out on the opposite end from the president’s philosophy. President Eisenhower, a conservative, chose Earl Warren (years on Court 1953-1969) who led a liberal revolution from his position as Chief Justice. And President George H.W. Bush nominated the African American Clarence Thomas to the Bench; Black Clarence Thomas may be to the right of former slave owner Roger Brooke Taney (years on Court 1836-1864) who decided the Dred Scott case. Although it is not likely Thomas would have agreed with that particular decision.

Supreme Court justices are just like the rest of us. We carry our beliefs and prejudices throughout our lives. They change from time to time and sometimes we can overcome them. But the U.S. Supreme Court is just another political branch of our three-branch political democracy. Politicians are placed on the Court by politicians that we elect. As Plato might have said, “Only the naïve believe otherwise.”

Instead of our long-time national self-delusion that the Supreme Court is not a political force, we should acknowledge that the justices are just humans and accept reality. The best we can hope for is term limits instead of a life-time appointment. I suggest one ten-year term would be about right.

What Now?

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Pericles (495 – 429 BC)

The great Greek statesman and military leader Pericles (495 – 429 BC) said, “The best guardians of a society are leaders with the wisdom to recognize their duty and the virtue (courage) to do it.” Both elements are essential characteristics for our leaders. We may elect smart people who are not wise and good people who are not brave. But what we need are wise and virtuous leaders who fear loss of honor more than fear of losing elections.

Of course, our leaders are as human as we are. We all fall short of the ideal. It is not perfection we need from our politicians but the ability to recognize it when they have taken the wrong course and the character to modify their behavior in the face of great pressure to continue on a destructive path. If we apply these standards to America’s involvement in Afghanistan, we can see the virtue in our original reactions to the attacks of September 11, 2001. We were morally obligated to our fellow citizens who lost their lives to properly respond. Osama bin Laden was the Al-Qaeda leader who planned the 9-11 attacks. America needed to punish Bin Laden, which we did by assassinating him in Abbottabad, Pakistan, May 02, 2011. Our course of action was morally just and our direct attack on Bin Laden was measured. It took us almost 10 years to bring him to justice but we should have and we did.

Once Bin Laden was eliminated our leaders from President Obama, President Trump and President Biden should have carefully and incrementally withdrawn our military presence while we protected the Afghanis and others who helped us. We can still engage in such a process. Any timeline, whether May 01, 2021 or September 11, 2021 or any anniversary of previous attacks or any other date is simply one we choose. We need to carefully and slowly withdraw our forces. Artificial drop-dead dates for our leaving encourage the Taliban to simply wait us out; which they are doing.

It will not be a popular decision of President Biden and our other leaders to reinstall enough troops to protect Americans and those allies of America who need to immigrate. However, popularity should not be our goal, virtue should be.