Friday, March 25, 2016

Let The Past Pass

Losing is good for us. Yes, such a statement goes against the tidal wave of political, athletic, and business thinking which says it is all about winning. Winning at any price, demanding every effort, and “failure is not an option.” Certainly it is nice to win on some occasions, if just to keep our spirit nourished and our mind motivated to continue to go on.

Losing has beneficial purposes in our life. It teaches us humility – one of the most important of spiritual values – usually at the very right time we need to learn it. Losing measures our commitment to our cause: do we pick ourselves up and try again, or withdraw into the safe prison of our failure? Losing opens up our bullheadedness that often shuts out needed perspectives and input of others. It tells us perhaps we did not have all the information, all the sufficient planning, needed. Or it reminds us that sometimes a good idea is offered at an inappropriate moment (too early or too late) to an audience not ready to receive it; we need to properly seed the garden of our ideas in order for them to grow. Ultimately, people may have a better idea, or maybe just a different one than ours, or there is simply more of “them” than “us.”

In the political realm, the big question for us is when do we decide to continue the fight and keep banging away at our objective – losing the battle but continuing the war unendingly? Or when do we recognize that the war has been lost, and give the battle up to a new day? Continuing the battle or continuing the suffering is to postpone getting to the new place that awaits us.

War is often a good example of this question. Near the close of the American Civil War, Confederate President Jefferson Davis ordered his generals to scatter the troops into the dense woods and mountains to henceforth fight a continual guerilla war. Generals Lee and Johnston, seeing firsthand the sacrificial killing taking place, disobeyed the order. They wisely said “enough is enough” and surrendered to Union generals Grant and Sherman respectively. Japan was prepared to die to the last man/woman/child to defend the homeland at the end of World War II. Two atomic bombs – at a horrible price – led the Japanese Emperor to instead choose surrender in order to avoid the inevitable loss of millions of lives on both sides.

Today we are suffering across the globe from an unwillingness to accept new realities that are upon us, unwilling to accept that things have not gone our way. The State of Israel has been a reality in Palestine for almost 70 years; as well, the need for a permanent homeland for displaced Palestinians remains; years of killing and vengeance by both sides over past grievances have not changed those realities.  Conversely, hundreds of years of English domination of Ireland finally ended 90 years ago. But it took 70 more years for tensions in Northern Ireland to finally end with a recognition that peace outweighed long memories of persecution. It took 30 years to end the ostracizing of Communist China by recognizing the reality of its government in place; 50 years to accept that blockading Cuba was accomplishing nothing but the continual suffering of its citizens. The time comes when accepting reality takes precedence over maintaining illusions and wishful thinking from the past.

Nothing is intended to remain the same, ever. In America, we suffer – long after their expiration dates – unproductive longings for past stories that never fully were. And we usually have highly imaginative fictional memories about the past we are trying to hang onto. The past is past for a reason – the good ol’ days weren’t really always that good! They had their good moments, certainly, but not everyone shared in those good experiences; they existed side-by-side with some really not so nice times. Life in the Leave-it-to-Beaver household did not resemble many households across America. And that gap of lifestyle, economic opportunity, and equal justice exploded in full view in the turbulence of the 1960s.

Today, the calendar reads “2016.” Yet it increasingly feels like we are in a time-warped moment back to our past that is robbing us of noble accomplishment. A half-century ago, equal voting rights for all citizens was affirmed. The limited right to abortion under defined guidelines was affirmed. Equal rights of property ownership and employment reward for women has been continually legally affirmed over the years. Protecting our environment and the cleanliness of air and water was charged to the EPA. Medicare made a giant leap forward towards extending medical care to those who need it.

Each of these decisions (and others) are under new attacks seeking to reverse these realities. Issues that many of us thought were long settled are back on the table facing new assaults amid echoes of old debates. They often have different rallying names: Voter Id (versus poll tax); Obamacare (versus Medicare); same-sex marriage (versus inter-racial marriage); gays in the military (versus Blacks in the armed forces); women’s equal pay (versus women’s equal pay!). Why are we still having these old, repetitive conversations?

We have many serious new issues on our collective plates today. International terrorism; violence in the sanctity of schools and churches; broken political promises; energy demands serviced from destructive sources; illegal immigration with good people living in shadows; unequal application of justice; economic stagnation and disparity of wealth and income; unaffordable medical care. All of these suffer from a lack of proper attention due to the distraction of pursuing old fights from our past. Certainly we should remember our past, because there are important lessons to be learned from those experiences. But we should not live today as if it were the past, because the world has moved on and will continue to do so.

When a vote is taken, a decision has been made. Children intuitively continue to wail as their desires go unmet. As adults we are supposed to know better, having learned to compromise with others of a differing view in order to find better, more broadly accommodating solutions. We can fight the good fight fair and ethically by the rules of the community. But after the dice have been rolled, the cards have been played, the poll has been tallied, a future course is now set. “Today” has been newly defined, and we need to get on board and sail on the same ship, working together, each giving his/her best contribution. There is a time to debate, argue, and fight for opinions. Then there comes a time to accept and move on. None of us wins all; all of us win some.

In the Massachusetts Constitutional Convention in 1788, there were hard-fought arguments of deep beliefs from good, principled people on both sides on whether to adopt the new United States Constitution. Delegate Benjamin Swain spoke to the convention regarding his feelings on being on the losing side. Swain reflected that “the Constitution had had a fair trial and there had not … been any undue influence exercised to obtain the vote in its favor. Many doubts which lay on my mind had been removed.” And although he was in the minority, “I should support the Constitution as cheerfully and as heartily as though I had voted on the other side of the question.”  It was a position not just of magnanimity, but it was also a principle that is essential for democratic government to succeed: after a fair hearing and honest vote, the decision is thereby made and all must come together to make the decision work.

It is now 2016, not 1968. We are well past the time for moving on from a past time that was never exactly as we remember.

©   2016   Randy Bell   

Thursday, March 3, 2016

Constitutional Responsibility

Supreme Court Justice Antonin Scalia died unexpectedly on February 13, 2016. The longest-serving of the current justices, he was the lynchpin of the Court’s five person conservative wing. There were few legal arguments on which I could agree with him, but this blog is not to rehash past Court decisions or Scalia arguments. Rather, it is to comment on what has transpired since his death.

Less than one hour after the public announcement of Scalia’s death, Senate Majority Leader Mitch McConnell stood in front of microphones and cameras on Capitol Hill and incredibly declared – in effect – that the President of the United States did not have the authority to appoint a replacement to fill Scalia’s vacancy, notwithstanding the express words of such authority in our Constitution. (So much for any believers in “strict constructionism.”) Further, if the President nevertheless dared to send forth such a nomination, Senate Republicans as a block would conduct no hearings on that person’s qualifications, and no confirmation vote would be taken. In fact, the nominee would not even be granted the basic courtesy of an introduction  and handshake!

The ostensible reason for this negation is that the current President is in the last year of his second 4-year term. An election for his replacement is in process, albeit over eight months away. So “the American People should have a say” in who is to be nominated as a result of who is elected the NEXT president – even though the vacancy is NOW. This is all, of course, utter legal and political nonsense. As well as governance nonsense – but far more egregious than we have seen before. Because this is nothing less than the willful Congressional redefinition of the express words of the Constitution by a political party claiming to be the true believer and defender of that Constitution. And such an action deserves to be called out for the insubordination and attempted usurpation of power that it is.

Article 2 / Section 1 of the Constitution says that “executive Power shall be vested in a President of the United States of America.” It further states that “[The President] shall hold his Office during the Term of four Years.” It does not say “except when other people are running to replace him.” (These days, people are running for four years to be the next president!) Article 2 / Section 2 says that “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” It does not say a “future” or “next” President. We have a President elected by the people; we have a Supreme Court vacancy. The President’s job responsibility is clear: make an appointment. We have a Congress; their job is to consider the candidate fairly, based upon his/her judicial qualifications and personal integrity, not political or social philosophy. Those philosophies are inherently embedded in the President elected by the people and who nominates the candidate. (Admittedly, not all justices turn out to be what their President expected!) The Senate’s job responsibility is clear: advise and consent on the nomination, based upon the nominee’s qualifications and character.

Playing out Mitch McConnell’s Constitutional confrontation is not just another ugly political battle such as we have become far too accustomed to seeing. It is also an insurrection with consequences. The Court has essentially been a 5-4 deliberating body for years. This one vacancy will make many key decisions a 4-4 tie. The Court is now halfway through its October-June session, with few cases yet decided and announced. There are major substantive cases accepted for review this session which will now go 4-4 undecided, meaning the decisions of the lower courts will stand. Most of those decisions have gone against the McConnell / conservative political agenda, so those losses will now be confirmed. In these contentious times, a 4-4 non-decision is not sufficient legal guidance; these cases deserve a more honest and final conclusion.

To add insult to injury, waiting for a new President means we will not only freeze the current session into a stalemate; we will lose virtually all of next year’s session in a second stalemate. By the time a new President is inaugurated next January, picks a nominee, and the Senate waddles its way through its advise and consent process, it will be April 2017 at the earliest – two months before the 2016-17 session ends. Two full sessions without a fully staffed Court is an inexcusable situation for our governance. Further, in this high stakes poker game, Republicans are counting on the new president being a Republican. Do they really think they will get a better choice a year from now should it be a President Clinton or Sanders?

Around one-third of the Senate seats are up for election this November. If our Constitution has been de facto amended such that Executive Branch leaders are no longer allowed to perform their responsibilities due to being suspended during an election, then that should also apply to sitting Senators. No voting or decision-making by them until after the election. Given Congress’ non-performance over the past six years, we would not likely notice the difference.

This is all quite a pathetic excuse for leadership and governance. Congress has long neutered itself of any meaningful governmental role. The Presidency has been marginalized. And now we are rendering our Supreme Court – supposedly the bastion of the rule of law and the bulwark against political excesses-of-the-moment – powerless. The country that claims the mantle of “most powerful leader of the world” acts more like an emerging chaotic 3rd-world country.

This gamesmanship is the latest reason why Americans are so disgusted with political “leaders.” Angry at their manipulation of governance systems, and the casting of all meaningful issues into the garbage bin of political opportunism and grabs for power. On this particular topic, both parties are rolling out quotes from speeches and position papers of long ago. Each party has advocated opposite opinions against themselves, talking out of both sides of their mouths depending on whether they are in the majority driver’s seat or out. The hypocrisy of everyone in this debate is astounding. Our politicians sound like spiteful sibling children in the playground, arguing that it is the other person’s fault because “they did it first.” Do they not remember their mother’s admonition from long ago saying, “two wrongs do not make a right”?

Just once it would be nice to see elected leaders lead by doing what is simply the right thing to do, rather than what is politically expedient, or what benefits their personal reelection agenda, or because the other Party did such and such. This is one of those times. Certainly we would all like to see our preferred jurist on the Court. But we are charged with being responsible citizens that accept the reality of timing; sometimes timing goes our way, and sometimes it does not. The pendulum always swings back and forth. Antonin Scalia died when he did. Like it or not, we have to move forward from this moment in time.

The United States Supreme Court has already become far too political an institution. This latest political high-jacking only serves to further that politicization. We need to restore judicial integrity as our highest priority, higher than any particular ideology. We need to do so by fulfilling the Constitution that the Supreme Court is charged with safeguarding.

©   2016   Randy Bell