Empathy

The Republicans seem bothered that Obama believes that a Supreme Court Judge should have the quality of empathy.  They seem to believe that a judge should only be worried about The Law and not worry about fairness or true justice.  Perhaps their model of what a judge should be is Chief Justice John Roberts.  According to an article in The Wall Street Journal (June 19, page A3),  The Supreme Court voted, by a margin of 5-4, that the use of DNA evidence, in the case of incarcerated prisoners, be left to the states.  Justice Roberts wrote the opinion that acknowledged “modern DNA testing can provide powerful new evidence unlike anything known before,’ but Justice Roberts went on to write “a criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man.”  He went on to say that it remains an “open question” whether “proof of actual innocence” is enough to overturn a conviction after a fair trial.

In other words, Justice Roberts doesn’t seem to think that whether a person is actually guilty or innocent has any importance, as long as all of the formalism of a “fair” trial is in place.  If an indigent defendant doesn’t have a lawyer smart enough to ask for any DNA evidence (if available), that’s the defendant’s problem if he/she is found guilty.

Perhaps someone who has the quality of empathy will think that actual guilt or innocence is important, that someone who is innocent of a crime should not be in jail, even if that person had a “fair trial.”  This might be one of those cases where a “wise Latina” would come to a better conclusion than a privileged white male.   

The Supreme Court - Myth & Reality

There are three major myths about the U. Supreme Court.  The myths are “understood” as part of our heritage, but whenever someone is actually to be named to the Court, the myths are disseminated as though they were additional commandments that Moses received at Sinai.  The myths are:

1.      Judges are completely neutral and their individual backgrounds have no part in their judgment.  Their decisions are to be as if they were never born or raised under particular circumstances, but to be as if they sprang fully grown from the head of Zeus, as did Athena.

2.      The function of the court is to interpret the constitution according to the intent of the original writers of the constitution.  Any judge who interprets the Constitution and reads in something that is not in the text, is an evil “activist” judge.

3.      The Supreme Court does not, and should not, make law, it should merely interpret the Constitution, as it always has done.

These are absolutely myths and have nothing to do with reality.  Anyone who says that they are true is either lying (perhaps to his/herself as well as the public) or does not know American history and the development of the Court.  Rather than merely argue these points, let’s look at how the court decided key cases since the Constitution was adopted. 

The first case I want to review is Mayberry v. Madison, which the Marshall Court (Marshall was chief Justice) decided in 1803.  Before the 12^th amendment was adopted in 1804, electors cast their votes only for President.  Whoever received the second highest number of votes became the Vice-President.  In the election of 1800, Thomas Jefferson and Aaron Burr ran together on the Democratic ticket.  When the votes were counted, they had both received the same number and the election of 1800 was decided in the House of Representatives.  It was a long drawn out procedure and, in the interim, the President, John Adams (a Federalist) appointed a number of Federalists to government offices.   James Madison became Jefferson’s Secretary of State and, upon Jefferson’s advice, refused to deliver the commissions confirming the appointments.  An appointee, Mayberry, an appointee, sued and the case eventually went to the Supreme Court.  Marshall, and the Court. ruled that under the relevant law that was passed by the previous Congress, Mayberry had to be given his appointment, but the law was unconstitutional.  The duties of the Supreme Court are enumerated in Article III of the U.S. Constitution.  Nowhere in Article III is the Supreme Court given the right or authority to declare an act passed by the Congress and signed by the President unconstitutional.  Marshall read that this was an implied right.   I find two things about this decision interesting: (1) the most “activist” ruling of any Supreme Court came as far back as 1803 and (2) no one on the Court asked Madison what the “intent” of the founders was.  Not only was Madison one of the “founders,” he is also known as “the father of the constitution” for his leading role in the constitutional convention.

            The second case I’d like to examine is the Supreme Court decision of 1857, the decision in Dred Scott v. Stanford.  The Supreme Court, under Chief Justice Roger Taney, declared that all blacks, free as well as slaves, could never become citizens of the United States.  As part of their decision, they struck down a congressional act, the compromise of 1820, on the grounds that it established free states and therefore violated the Constitution, which called for the universal existence of slavery.  Taney later wrote that the Negro had no rights that a white man need consider.  It is hard to believe that a judge who had been raised as a New England abolitionist would have reached the same conclusion, so that the type of culture in a judges background does make a difference in how that judge will interpret a law.  Also, “original intent” played no part in this decision.  Since it is well-documented that the constitution was the result of a series of compromises and many of the delegates to the Constitutional Convention were opposed to slavery, it is very difficult to see why the Compromise of 1820 was unconstitutional because of the original intent of the “founding fathers.”

Finally, I would like to consider two Supreme Court cases together: Plessey v. Ferguson in 1896 and Brown v. Board of Education in 1954.  In Plessey v. Ferguson, Plessey held that segregation violated the equal protection clause of the 14thAmendment.  In 1896, the Supreme Court, under Chief Justice Henry Brown and by a vote of 7-1, ruled that “separate but equal” was an acceptable concept under the 14^th amendment.  Nowhere in the 14^th Amendment (or the Constitution) is the concept of “separate” ever raised.  In 1954, in Brown v. Board of Education, with Earl Warren as Chief Justice, the Court ruled unanimously that segregation did violate the 14^th Amendment and also stated “separate educational facilities are inherently unequal.”  In the 58 years between 1896 and 1954, there was no change in the 14^th Amendment or in any other relevant part of the Constitution.  Then why did only one Judge (Harlan) vote that “separate but equal’ was not constitutional in 1896 while 9 Judges voted that way in 1954.  Was it because one or the other were “activist” courts?  Was it because the 2 courts disagreed on “original intent”?  I doubt it.  I think that there was a tremendous shift in public sentiment in those 58 years.  In 1896, the Brown Court believed that public sentiment would not tolerate equality of the Nergro and in 1954, the public mood had evolved and changed.  Only 10 years later, the Civil Rights Act was  passed.

I think that reviewing several actual Supreme Court decisions indicates quite well that the three principles listed at the beginning of this post are myths – they have no basis in fact and the people who repeat them are either lying or do not know history.  The decision in Mayberry v. Madison shows that the concept of judicial “activism” began in 1803 and is today is merely a way of disagreeing with the decision of a Court.  The “intent of the founding fathers” had no effect in Mayberry v. Madison.  If it had, Chief Justice Marshall had only to ask Madison what the intent had been.  The effect of judicial background, upbringing, and societal opinion were obvious in the Dred Scott decision and in both decisions on “separate but equal.”  Anyone who says that the background of a judge should have absolutely no effect on their interpretation of the law is either a liar, a hypocrite, or ignorant of judicial history.  What they are really saying is “that if the Judge has a background similar to mine, he/she will reach the correct decision.       

A Dream - I think

THINKI guess that I’ve been watching too many cable news shows on television, because I had a rather strange dream the other night.  In my dream, President Obama decided to give a speech in Israel on his way back from Cairo.  To be different, he decided to give this speech in Haifa, rather than the usual site of Jerusalem or Tel Aviv.  So many people evinced interest in attending that he chose an elevated spot on Mt. Carmel from which to deliver the speech.  There have been many jokes about the teleprompters that the President uses, but in this case, the teleprompters, through some cosmic mix-up, shoed the sermon on the mount (in modern English, of course.  In my dream, I watched the usual comments on television:

RUSH LIMBAUGH: There he goes again with that Pinko-Liberal bias.  What does he mean “Blessed are the poor?”  It’s obvious that it isn’t the poor, who are always looking for another handout who are blessed, it’s those hardworking Americans who have been rewarded for their work ethic!

NEWT GINGRICH:  What does he mean “I say unto you, that whosoever shall divorce his wife causes her to commit adultery?”  It’s not his business how many divorces I’ve had.  And that bit about not committing adultery is much too judgmental for any president..  I guess he presumes that he knows all of the circumstances.  I’ll bet he never had a wife who had cancer while he was interested in another woman!

JOHN BOEHNER:  I’m afraid that the populace is absolutely unable to support such a rampant and unnecessary expensive idealistic program at this time.  Our caucus will propose a much more reasonable approach in the future.

ERIC CANTOR:  I, and several of my colleagues believe that what has been proposed is not what the American people want at this time.  We are preparing to depart on a nationwide series of  town halls in order to discover what, if any, program true Americans really want.

TOM TANCREDO:  Sounds like a bunch of foreign ideas to me.  It’s time we originated some true American ideas!  These ideas obviously originated with some rag-head in the near East.

MICHAEL STEELE:  We brothers had better ideas in the ‘hood.

DICK CHENEY:  Once again, Obama is signaling his intent to make the American people less safe from foreign terrorists.  “Agree with your adversary quickly” – those are just the words that Osama bin Laden wants to hear. And what dangerous, treasonous lines: “You’ve heard it said “Love your neighbors and hate your enemies’ but I tell you love your enemies, bless them that curse you, do good to them that hate you..”  What is he proposing to do?  Have a tea party with Ahimidinijad and Kim Il Sung and ask them “one lump or two?’  That man is dangerous as President..

MARY CHENEY: I agree with my father, even if he never said it.

RACHEL MADDOW: He actually said: “Don’t think that I have come to repeal the law or contradict the prophets, for I proclaim that not one detail of the law shall be forgotten.  I haven’t come to change the law, but to fulfill it.”  That doesn’t sound like the change we were promised.

MIKE HUCKABY:  The Fundamentalist Christian community will never stand for bringing back all of those Old Testament rules.  I don’t think that even the Liberal Christians want them!

GLEN BECK:  Every time that Obama talks it makes me want to cry for my country.

CHRIS MATTHEWS  couldn’t decide whether to have two theologians (one liberal and one fundamental) or Democratic and Republican “strategists” on the program to discuss the speech, so he skipped the entire subject.

Magical Thinking

Magical thinking is the belief that something that didn’t happen is proof that something you did prevented it from happening and, if you hadn’t taken your action. It would have happened.  It is a magical belief that is shrouded in human history.  Something that might have happened was prevented by an action of ours.  Unfortunately, something that did not happen cannot be used to prove that you prevented it from happening because of your exact actions.  A good example is an old joke:

Q. Why do elephants paint their toenails red?

A.  I don’t know.

Q. It’s so they can hide in Cherry trees.

A. That’s ridiculous!

Q. Have you ever seen an elephant in a cherry tree?

A. No, never.

Q. See, it works!

I thought about elephants in cherry trees when Cheney spoke about how “enhanced interrogation” (i.e. torture) resulted in information that saved thousands of lives, if not hundreds of thousands.  I’m afraid that his information came from the same place as WMD or the tie between Sadam Hussein and Al Qaida.  Think about the claim for a moment.  Al Qaida’s attack on the World Trade Center and the Pentagon resulted in slightly less than 4,000 deaths.  The Luftwaffe blitz on London (1940-41) was estimated to have resulted in less than 50,000 deaths.  The atomic bomb, when it was exploded over Hiroshima, was estimated to have resulted in about 100,000 deaths.  The firebombing of Dresden by virtually the entire RAF was estimated to have resulted in about 135,000 deaths.  Cheney claims that only 3 men were waterboarded.  Yet, from the information gleaned from those three men, the Bush-Cheney administration was able to save us from an attack that would have resulted in more deaths that occurred in the 2 year bombing of London, more deaths than the atomic bomb caused in Hiroshima, and possibly more deaths that occurred in Dresden.  They saved us from all this destruction without saying a word, while they rushed to tell us about Jose Padillo and every minor plot.  What forbearance!  If you believe all of this, I’d like to ask you a question:

Why do elephants paint their toenails red?

Nothing New under the Sun

It has been almost 2 months since I last posted –March 21^st.  I have been busy, but I was busy before and I still posted.  I didn’t really have much to say, but that has never stopped me before – I certainly have posted when I didn’t really have much to say in the past.  No, I was reading many of the posts on Xanga and listening and watching cable television “news” channels.  I’ve been reading and listening to the arguments about “do the means justify the ends,” “is the Bible literally accurate?” “is the Bible the word of God, the words of men inspired by God, or merely the folk tales of a people (mine)?”  “Is evolution the result of natural selection, or of God’s plan and design, or were the species created as is less than 7.000 years ago?”  “Is homosexuality a normal development or a sin against God?” and other important, timely, and critical questions.

I realized that these arguments and discussions are basically the same arguments and discussions that I engaged in myself when I was in high school and college about 60 years ago.  I’ve been overwhelmed with a sense of déjà vu, with a sense that nothing ever changes – I have become Ecclesiastes (or, as we called him in Hebrew, Kohelet).  I think I was about 16 when my Hebrew class, under the guidance of Joseph Haggi, studied the Book of Ecclesiastes.  I didn’t like the book at all.  I was a teenager, a full and exciting life was ahead of me, and the weariness and tiredness of Ecclesiastes was not for an idealistic 16 year old.  “There is nothing new under the sun” indeed!  In our class, we used to say to Mr. Haggi “But Mr. Haggi, times have changed!”  He always answered us “Yes, but people haven’t.”  We would talk about all of the things that were new and he would answer “so you have the telephone, but what is said on the telephone that wasn’t said in the time of King David?  You have the radio and I know that all of you listen to the comedians.  What have they said that Aristophanes didn’t say?”

I’m sure that Mr. Haggi is long gone.  He was a wonderful teacher and taught us many things but, of all that he taught us, the concept that people haven’t changed is probably the most important.  Today we have inventions that Mr. Haggi probably never dreamed of.  We have computers, we have cell phones, we have Twitter and Facebook on the internet  but, aside from the technology itself, what is new?  What is being written or said that hasn’t been written or said before?  I watch talk shows and see constant debates about torture, but what is being said that wasn’t said in Hammurabi’s dungeons?  Perhaps the extent of the treatment is different, but I’m sure that there were techniques that some thought weren’t moral and others thought were justified and they argued about them in the same way.  I’ve been able to make sense of the historical books of the Hebrew Bible by assuming they were written by flacks and press agents of the victors.  When you read the books that way and assume that people haven’t changed, what probably really happened and the motivations become clear.  When read that way, it becomes highly probable that Elhanan, not David, slew Goliath, but it was critical for David to claim that victory.

It was over 2,000 years ago that Ecclesiastes wrote:

“The sun also rises and the sun goes down to the place from

Which he arose

The wind blows south and then turns to the north and turns continually.

All the rivers run into the sea but the sea is not full and the waters

Return to the rivers and run to the sea again. …

What has been, is that that shall be and

That which was done is that which shall be done.

There is nothing new under the sun.

Is there anything that may be said to be new?

It was there already of old.”

What I feel as I read some of the posts and watch cable news was also expressed over 1,000 years ago by Omar Khayyam in the Rbiyat:

“Myself, when young, did eagerly frequent

Doctor and saint and heard great argument

About it and about

But evermore

Came out the door

As in I went.”

I may be over 80 and no longer 16, as I was when I first encountered Ecclesiastes, but I think that there is a way to recover some of my youthful enthusiasm: get away from the enervating heat of the Sonora Desert and stop watching cable news for a while.  I’ll still read the blogs on Xanga – some habits are too much fun to break.  I’ll post again after I spend a week in Western Canada.