James M. Redwine

Soviet Union

The American Mantra

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From “The Veranda” @ JPeg Osage Ranch. Photo by Peg Redwine

Peg and I got back to “The Osage”, Osage County, Oklahoma, USA on 26 February 2023 after a trip of two days from the one-time Soviet Union Republic of Georgia that is bordered by Russia and Turkey and lies directly across the Black Sea from Ukraine, that, also, was a former member of the Soviet Union. Georgia has a population of about four million, almost every one of whom we met yearned to come to the USA and every one of whom was insatiably curious about, “What makes America, America.” The Georgian judges we worked with from June 2022 to April 2023 unfailingly asked me “How do American judges do …?”

I was sent to Georgia by the United States Agency for International Development, the American Bar Association and the East-West Management Institute because I have been on the faculty of the National Judicial College (NJC) since 1995 teaching other judges from the United States and several foreign countries. I have designed and taught courses on judging to judges, lawyers and court administrators from Palestine (1996), in Ukraine (1999-2000), in Russia (2003) and in Georgia (2022-2023) as well as judges from other countries when they attend courses at the NJC.

My unsurprising conclusion from ten years of practicing law and forty-three years of judging is lawyers and judges and the citizens who must look to us for justice are pretty much the same everywhere. Most people are good most of the time, most people are bad some of the time and everyone everywhere wants to know why the USA is a beacon to the world. That is what I have been asked to report on during a series of debriefings concerning our mission to Georgia.

In other words, even we Americans spend a great deal of time cogitating on what makes American judges different from foreign judges. I have certainly invested a lot of years in this quest and today during a Zoom meeting with experts from Georgia and America I plan to offer my analysis. For such a complex and important subject my thoughts synthesize to a rather pedestrian mantra:

With all the judiciaries from other countries it has been my pleasure and privilege to know and work with, my perception is they believe that unless there is a specific, written law that authorizes them to take a particular action, even if they know it is the right and just thing to do, they cannot ethically and legally do so and, therefore, they refuse to act.

Whereas judges from the United States believe that unless there is a specific, written law that prohibits the judge from taking a bold, just and fair action in a case, the judge will take the action even if there is no law that specifically allows it.

This mantra is deep within America’s judicial psyche. Some, when they disagree with a judge’s imaginative decision, might criticize it as “judicial activism”. Of course, when they agree with the decision, they call it “wisdom”. But if one wants to define the bright-line difference in what other countries yearn for and what America’s judges are admired for it is just this, Judicial Independence!

This general philosophy falls within what that great American dreamer Robert Kennedy called his mantra:

“Some people see things as they are and ask, Why? I see things as they should be and ask, Why not?”

So, after 8 months of responding to my Georgian friends’ incessant curiosity of what makes America and its legal system the hope of many other countries, I point out it is not for nothing the most recognized symbol of America is The Statue of LIBERTY (that is, the freedom to do the right thing)!

I Knew Santa Claus Was Real

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One of the advantages of working in the former Soviet Union country of Georgia is that Peg and I spend our time where a great deal of history was made. It is not that the United States does not have an interesting story to tell. But the good ’ole US of A cannot legitimately lay claim to be the birthplace of wine as Georgia does or the birthplace of the Holy Roman Empire as does Georgia’s neighbor, Turkey. And one exciting aspect of being in a part of the world where so much of our history was made is that new discoveries of old history are being uncovered everyday. For example, it was recently reported that archeologists unearthed an ancient mosaic beneath the floor of a church in Demre, Turkey that was the original burial place of Saint Nicholas.

I do not know about you, Gentle Reader, but with Christmas less than two months away I was stoked to have scientific evidence that Santa Claus might really be coming down the chimney at JPeg Osage Ranch in Oklahoma. I just have to find a way to re-route him to our apartment in Batumi, Georgia. And since we do not have a chimney here I guess we will have to leave the patio door unlocked. We will not get home until March so I hope Rudolph has his G.P.S. system updated as to the 9 hour time change and the 6,500 mile distance between Oklahoma and Georgia. Peg and I plan to leave the patio light on all Christmas Eve.

Saint Nicholas lived from 270-343 AD and was a contemporary in what would become the country of Turkey with Constantine who lived from 272-337 AD. Constantine made Christianity an acceptable religion and established the Holy Roman Empire once he became Emperor in 306-337 AD. Constantine named Constantinople, now Istanbul, for himself. He also convened the First Council of Nicaea in 325 AD that produced the Nicene Creed that set forth some of the principles of early Christian faith, including much of the humanitarian beliefs attributed by history to Saint Nicholas.

St. Nicholas was born in Papara, Turkey and died in Myra, Turkey. He was alleged to have inherited wealth that he spent his life giving away to those in need. He was especially known for his generosity in giving gifts to children.

As for me, I never doubted such a person existed, but as the youngest of four children my Christmases were accosted by my older and more cynical siblings. Well, I hope they read this account that rings out with the joy of a great and generous spirit and I expect them to accept the scientific proof that I was right all along.

One Game At A Time

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Gentle Reader, should you have read last week’s Gavel Gamut you may recall that another reader, Dr. Michael Jordan of Osage County, Oklahoma, sent a letter to the editor asking that I address the topic of immigration. No, I do not know why, but after a couple of minutes of reflection I thought, “Why not?” So here goes. Our current immigration mess should not be any more challenging than Winston Churchill’s view of the old Soviet Union that he called, “a riddle wrapped in a mystery inside an enigma”. A few quick paragraphs ought to suffice. Let’s start back in the 1960’s when our national immigration policy began to gradually change from one based on admitting immigrants based on entrepreneurial or economic qualifications, that is, what does the immigrant have to offer, versus admitting family members to reunite with previous family immigrants already in America.

According to George Mason law professor F.H. Buckley:

“U.S. immigration policies were radically changed in 1965, when national origins quotas were replaced with preferences for family reunification. People from countries that had recently supplied immigrants were given a leg up, while those from countries that had supplied immigrants centuries before found it much harder to get in.

In the 1950’s two-thirds of legal immigrants came from Europe or Canada, by the 1990’s that figure had fallen to 16%. During that same period, the percentage of legal immigrants from Latin America and Asia rose from 31% to 81%.”

See The American Illness, Essays on the Rule of Law

By F.H. Buckley at p.51.

Buckley has written extensively about immigration to America. Ironically, Buckley is himself an immigrant from Canada. That aside, in his above referenced book, Buckley posits that part of the immigration solution is for the United States to return to our pre-1965 immigration policies. Buckley avers that USA law used to determine admittance of immigrants on a general policy based on national origin quotas and economic benefits to America, but changed to a policy of family reunification being the main factor. This led to a change from the long-time admission of immigrants mainly from Europe and Canada to those mainly from Latin America and Asia. Buckley states:

“What is uncontroversial is that the United States could do a better job of competing for the highly qualified immigrants who are more likely to confer economic benefits on natives. America is exceptional in the way in which, more than any other first world OECD (Organization for Economic Co-operational and Development) country, it favors family based immigration and admits relatively few employment-based immigrants.

….

“A move to a more entrepreneurial immigration system would likely offer non-economic spillover benefits. Economic immigrants are less likely to commit crimes or to rely on the welfare system, and for countries that favor them, immigration is less contentious. The natives are more likely to welcome immigrants, who in turn are more likely to assimilate to the natives.”

Buckley: pp. 51-53

Buckley’s book was published in 2013, but it has an eerie prescience to today’s southern border crisis of children being dropped over walls and left alone in the desert in hopes of somehow uniting with their family members already in the United States.

Of course, this does not resolve the immediate situation. We must follow our Constitution and provide due process to those who are legitimately seeking asylum. We have the means to provide humanitarian relief as we abide by the laws and policies we established until we change them. Deserving immigrants should be welcomed without prejudice as to national origin, race, ethnicity and faith or lack thereof and without encouraging the breakup of families. A gradual, fair return to an entrepreneurial immigration policy should begin now. And before anyone projects a conclusion that Buckley or anyone else is saying Canadians and Europeans are superior to Latin Americans or Asians, let us be clear. It is not one’s race, ethnicity or national origin that should determine whether an individual is admitted into our country. The criteria should be mainly whether the aspiring immigrant can be a benefit to America.

Through the fog of one of my undergraduate psychology courses at Indiana University I loosely grasped the concept of projection. One aspect of Sigmund Freud’s theory of projection is that we humans subconsciously cast upon others our own failings as a self-defense mechanism. When it comes to America’s approaches to the problems of immigrations and debates that have raged since at least 1620 and Plymouth Rock, I submit Dr. Freud would diagnose many of us as projectionists. But before we address what Emma Lazarus called the Mother of Exiles, the Statue of Liberty, and the “…[H]uddled masses yearning to breathe free, The wretched refuse of your teeming shore”, let me suggest an analogy between immigration and environmentalism based on an old adage.

In the simplest of terms, the green debate is between those who want to build a house in the woods and those who already own a house in the woods. And with immigration, the competing positions are often those held by we whose ancestors immigrated here versus those who would like to become ancestors for those who may later immigrate here. And while we have certainly managed to maintain many raging controversies about whether certain classes of peoples, Irish, Catholics, Chinese, Muslims, Italians, even people indigenous to North America, and numerous other groups, have a right to exist in the United States, our current concentration involves our southern border.

Some of us might project our own fears, prejudices and greed onto one side or the other of the issues. However, as with every extremely complex problem it may require much more time, effort, and goodwill than most of us care to invest. It is easier for us to simply say those who disagree with us are motivated by hate or ignorance. Hard work is never as appealing as harsh rhetoric. Facts are the enemy of bombast. A knowledge of the facts on immigration is vital to constructively addressing the problem. Just as catcher Crash Davis advised in the movie Bull Durham, we need to concentrate on the here and now and take things one “game” at a time.

Cowboy Up!

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Before October 4, 1957 when the Soviet Union launched Sputnik 1 American boys knew who they admired and what they wanted to be, cowboys. From the days of Hoot Gibson and Tom Mix to Hopalong Cassidy and the Durango Kid until Gene Autry and Roy Rogers boys of all backgrounds dreamed the same dream. Then America watched as our global boogeyman leapfrogged over us and put us in fear of destruction from above. Cowboys’ six guns became obsolete and American boys, girls too, dreamed of being astronauts. John Glenn orbited the earth aboard a new fire-breathing steed and from 1957 until Clint Eastwood’s movie The Good, The Bad and The Ugly that came out in 1966 during the throes of the Viet Nam War American boys left cowboys in the dust. However, since this is America, a sense of emergency and panic can only be maintained a short while before we revert to our roots.

As a one-time American boy I made the same progression. I fell back from my completely unrealistic dream of becoming a physicist to my only somewhat unrealistic, albeit subdued and hidden yearning, to be a cowboy. Returning to the days of Gene Autry was much easier than facing the reality that I will not be helping to settle Mars. However, the declining dreams of a young boy are themselves sometimes painful to reconstruct when one is separated from them by time. But the fates did recently allow me an opportunity to kind of revisit those thrilling days of yesteryear. I got to herd one cow.

Now, when I was playing cowboys and Indians with the neighborhood boys in Pawhuska, Osage County, Oklahoma in the 1950’s several of my friends were, in fact, real Indians and several of them were, in fact, the sons of real cowboys. Of course, since we boys had not yet had the advantage of adult myopia we were unaffected by the niceties of who was supposed to be what. We all were whatever the scenario we thought up called for. Alas, we grew up, sort of.

However, let me return to my recent opportunity to turn back the clock to the dreams of grade school days. When Peg and I bought a cabin in rural Osage County a few months ago we not only found a new home but also a new friend who was the prior owner and a real cowboy. How lucky was that? Anyway, Johnny runs some cattle on our place and those cattle are like the rest of us; they do not always stay put. Occasionally a cow will find its way out onto the public road. Such was the case yesterday. So, as my brother and I were heading to Bartlesville about 20 miles from our cabin to run errands for Peg, we encountered a large black cow with a white face happily munching on the right-of-way bluestem grass. I saw my chance to live that five-year-old boy’s dreams.

I jumped out of my pickup and approached that cow with a confidence that can only come from ignorance. As I got closer and closer to the bovine behemoth, instead of her fearing me as I anticipated she took the attitude of a large animal upset by someone interrupting her dinner. Having neither horse nor rope nor the ability to use either had I had them I retreated and called for backup on my cell phone.

“Johnny, it’s Jim. One of your cows is out.”

“Jim, I’m in Oklahoma City.”

“Johnny, what the devil do you want me to do?”

“Why, nothing Jim, unless you want to. I’ll be back in The Osage in a few hours and I’ll deal with it. This is cowboy work.”

Well, Johnny is obviously a true psychologist as that last statement cut deep into my boyhood psyche. I just clicked off my phone and girded my loins up about me as I ran towards Miss Bossie and waved my arms. Apparently she was so amused she decided to amble back into her pasture and I shut the gate behind her.

Now I know some of you Gentle Readers are probably thinking this event may not be quite as impressive as The Lone Ranger cleaning out a nest of rustlers. But to me it’s just a matter of degree. They both qualify for cowboy status. My dreams have finally come true. I’m going to buy a hat and boots and find a drugstore where I can prop my boots up on the bar rail, tip my hat back and sip a sarsaparilla.

Rattling Sabres

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Folk singer Phil Ochs (1940-1976) wrote a ballad about old people, mainly politicians, giving young people orders on how they should behave and believe. The closing verse is:

“So keep right on a talking
And tell us what to do.
If nobody listens,
My apologies to you.
And I know that you were younger once
‘Cause you sure are older now,
So when I got something to say, Sir,
I’m going to say it now.”

Ochs applied his sarcastic insight to the United States as well. In a song he wrote about American incursions from South America to Southeast Asia he criticized our government for interfering militarily when a country elected a leader we did not like and could not control:

“We’ll find you a leader
You can elect.”

Just based on media reports of our current actions in Venezuela and Iran, among others, Ochs’ message has had little resonance for our contemporary leaders. And hearing people on all sides of the military intervention issue from President Trump to each of the twenty-one 2020 presidential hopefuls and everyday folks from Maine to Monterey, perhaps Ochs might agree with Yogi Berra (1925-2015): “It’s deja vu all over again.”

That is not to say either Ochs or Berra or anyone else should encourage America to cease vigilantly preparing for danger. As our son, Jim Redwine, learned from personal experience while fighting on the front lines of the 1990-1991 Gulf War and in 2006-2007 in the Iraq War, we must not allow ourselves to fall behind the curve of military technology. Iraq’s military technology simply could not compare to ours. America must not allow itself to be on the weak side of the military equation.

What that concern does not require though is our penchant as the world’s preeminent military power to “Keep right on telling others what to do and whom they should elect.” Our power should remain potentially dominant but our desire to dominate other countries should remain in check. Our Constitution calls for “national defense”, not aggression.

With our current yearly national debt standing at 104.1% of our total gross national product it might behoove us to look to the source of this imbalance between production and debt. It began when we decided to drive the old Soviet Union into financial collapse via its military spending. Unfortunately our own spending rapidly increased from 30.9% of debt to GNP in 1981 mainly through our own massive military spending to where we are today. That is spending a lot of money we do not have. And it is always a good idea to learn from the mistakes of others. We do not want to become a broke and crumbling version of the old Soviet Union due to our own overspending on unnecessary world-wide military incursions.

Perhaps we should do what Russia should have done fifty years ago and concentrate on our domestic needs such as infrastructure, health care, global warming and our environment while continuing to keep pace, but not be profligate, with our national defense. A reasonable first step might be a policy of non-intervention in the internal affairs of other countries as long as they return the favor.

I know we often get legitimately upset with the behaviors and cultures of other countries. But countries are made up of people and we may want to step back from the dangerous and expensive practice of telling others how to behave and believe. It is analogous to how many of us view Freedom of Speech. We will allow others to say whatever they want and behave as they see fit as long as they say and do what we agree with. As that wise Hoosier war correspondent Ernest T. Pyle (1900-1945) observed during WWII:

“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.”

We might want to consider a similar thought for other countries and other peoples.

Ohio State 13, I.U. 14 (Half Time)

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After treating me to 8 weeks of basic training in the Texas summer heat the United States Air Force extended the misery by subjecting me to Indiana University football. In 1963 the Air Force stationed me in Bloomington to learn Hungarian. First they gave me a Top Secret Security Clearance. Silly me, I thought the reason was to keep secrets from the Soviet Union. I discovered the only secret being protected was that there are two halves to a football game; I.U. often plays only the first.

From my first IU football game in 1963 through 7 years on campus up to last night, August 31, 2017, I have repeatedly had my hopes raised in the first half only to see them crushed on the shoals of reality. At least IU has often been inventive and original in finding ways to snatch defeat from the jaws of victory.

My most painful memory is the game we lost after it was over. Yes, over! What happened was Indiana went ahead with less than thirty seconds left to play and was so excited, and surprised, to be ahead the team started celebrating during the kickoff and the other team ran the kickoff back for a go-ahead touchdown as time ran out. That was the first IU game I saw. It was an omen, a harbinger, a curse.

On the other hand I have watched numerous football games where we led at half time. What is it about IU football and the second half? We often play well and smart and tough the first half then have to invent a way to lose in the second. Perhaps our approach has been misguided.

Indiana University is a fine academic institution with a beautiful campus and generous support from Hoosier taxpayers. We have smart students and even smarter professors and we require our football players to go to class. Maybe we should demand a rule change based upon the empirical evidence. I suggest we simply walk off the field at half time and not come back. Then such debacles as 13 (Ohio State) to 14 (IU) at the half will no longer turn into 49 to 21 at the end.

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