No Adjudication Without Representation

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Diane Feinstein got a lot of guff for suggesting in 2017 that appeals court nominee Amy Coney Barrett, an outspokenly conservative Catholic, felt about Church dogma the way most lawyers are trained to think about precedent. Cries of discrimination were heard, and the Constitutional prohibition on a religious test for office invoked. Unspoken, but implied, was that the Jewish Feinstein might have a religious bias of her own.

But Feinstein was clearly concerned about whether the nominee’s faith might color her decisions on issues on which the Church has well-known, inflexible doctrine — birth control, abortion, homosexuality, divorce, premarital sex, and so on. Judges are expected to be objective, not already committed to a position.

The very Catholic Barrett, who won the appellate seat, was also last week one of the finalists for the Supreme Court seat of Anthony Kennedy, a Catholic, but the three other nominees — Kethledge, Hardiman, and the selectee, Kavanaugh, were also Catholic. You could argue that the whole process reflected no change in the composition of the Court, but the composition is historically highly unusual.

For the first half of Supreme Court’s 228 years, it was comprised exclusive of white, Anglo-Saxon, protestant males. The Anglo-Saxon protestant part reflected the nature of the populous during much of that period. The white and male parts surely did not. And as waves of immigration changed the country, beginning in the second half of the 19th Century, politicians began to make token efforts to have the Supreme Court reflect the electorate, to be a representative body.

Still, the first black Justice, Thurgood Marshall didn’t join the Court until 1967, the first woman until 1981, and the first Hispanic until 2005. Religious change came sooner. Roger Taney, arguably the worst Justice in Supreme Court history, was appointed in 1836, but it took until 1894 for the second to be named. Given the influx of Irish, Italians and other European Catholics it was inevitable. Thereafter, there was a de facto Catholic seat, as there is now, in effect, a black seat. The first Jew was appointed in 1916. Thereafter, there was also a Jewish seat.

This dispensation persisted until late in the 20th century, but then a remarkable change took place. Today the Court is made up of 6 Catholics and 3 Jews, hardly representative since the country is 2 percent Jewish not 33 percent, and is 20 percent Catholic, not 66 percent. Indeed, there are now more Americans of no professed faith (24 percent) than Catholics, Jews, Hispanics, or blacks. Where’s their Supreme Court seat?

Obviously that isn’t going to happen, since unbelief is the predilection that dare not speak its name, if you are a politician. But what gives regarding the proportional Supreme Court representation of other groups? Why are the percentages so skewed, and where did all the Wasps go? One hundred percent was absurd, but zero percent?

Once you could argue that women weren’t on the Court in greater numbers because women lawyers were in short supply, but they now make up about a third of lawyers. Jews have historically been over-represented in the academy and the professions, my son the doctor and all that. But, 33 percent of Supreme Court seats looks like extreme overachievement. Jews do not make up a third of lawyers. But the most obvious mismatch between the number of people in the population and the number on the Supreme Court is the 66 percent representation of Catholics on the Court.

Catholics aren’t equally over represented in the legal profession as a whole. In fact, the reason for their dominance is obvious, and it vindicates Feinstein’s concern for the objectivity of Judge Barrett. Ever since the Republican Party began to pin its electoral hopes on a culture war against liberalism and modernity, Republican presidents have run on the promise to appoint legal warriors predisposed to decide cases on hot button issues like abortion or gay rights in a preordained way.

They put their faith in culturally conservative candidates to the appellate and Supreme Courts, believing this would please their constituents and give them an edge over Democrats who stuck to the old tradition of appointing well-qualified, objective jurists. The question was, where could Republican presidents find a pool of surefire, cultural conservative nominees?

As we have seen in the most recent cases, there is now an entrenched ideological infrastructure whose function is to cultivate a crop of potential nominees, beginning in law school. The Federalist Society and the Heritage Foundation supplied the list from which Trump chose both of his nominees.

They were, in effect, pre-approved and like-minded. They subscribe to the new dogma of originalism or textualism which seeks to ban any reading of the Constitution that wouldn’t have pleased an 18th Century Tory or perhaps 16th Century Jesuit.

But when the culture wars began under Reagan, the new orthodoxy was in its infancy. Reagan had also run on the promise to put the first woman on the Supreme Court, so that took care of his first nominee. For his second, he tried to replace the retiring, moderate Republican, Lewis Powell, with the original originalist, Robert Bork. His views were then seen as too extreme and he was rejected. Anthony Kennedy, a safer pick, took the seat. The Bork rejection, however, inflamed the culture warriors.

Thereafter, Republican presidents haven’t dared to nominate anything but a string of conservative, “originalist” Catholics — with one exception, David Souter, who the zealot wing of the party repudiated when he failed to decide cases in a far-right enough manner. He proved to be, in their minds, unreliable, or as we would say, open-minded. That was no longer acceptable.

No one has accused thirty years of Catholic originalists — Scalia, Thomas, Roberts, Alito, Gorsuch, and Trump’s four Catholic finalists for the Kennedy seat — of being anything but religiously dogmatic in judicial philosophy. Their faith in the cult of originalism is of a piece with their personal faith — unquestioned and unquestionable.

But it is hardly representative of the views of the people whose business they are supposed to be serving. We all live in the 21st Century and many of us think our jurisprudence ought to do the same.

Bad Boy

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President Trump is in the middle of a trip to Europe whose stops include NATO, Great Britain, golf at Trumpa Scotia, and a Helsinki summit wth Putin — or, as an “Esquire” wag has it, his annual performance review.

Many of us find Trump alarming enough domestically, but even more so when he ventures abroad. Why? It took me awhile to analyze the source of the weird, queasy, familiar feeling of impeding doom such junkets inspire. But then it became obvious.

Trump’s behavior is that of a poorly brought up child, one whose mother never taught him to behave. That sort of kid is bad enough at home, but let loose on the world is a constant source of worry since he is likely to bring such disgrace upon the whole family that it may never live it down.

It’s possible that this worry about appearance is a middle-class thing. The lower classes often behave as if they can’t afford manners or regard them as an affectation, a waste of time. “Grub first, then ethics,” says a character from Brecht. Oddly, spoiled rich children are just as likely to transgress because they think the rules don’t apply to them. Trump plainly shares that view.

Did anyone ever teach him to treat women with respect, for instance? There’s no evidence to suggest it. Imagine him holding a door for a lady, or a chair. A whole lot of tabloid headlines, locker room boasts, lawsuits and MeToo victims show he is an adolescent pig who never got a talking to.

As kids, we are all taught endlessly not to lie, cheat or steal. Trump has made a career of such behavior and has put his name on ghostwritten books boasting of it. We are also admonished by father, mother, teacher, preacher to care for those less fortunate than ourselves. Trump has no philanthropic endeavors associated with his facade of wealth, even illegally using his trust as a slush fund.

As president, he has pretended to care for working people, but has set out to cut funding for programs to help the poor, has separated asylum seekers from their children just to watch them cry, mocked the disabled and dying, reveled in the misery of the disadvantaged, encouraged discrimination against minorities, and sought to deprive millions of healthcare.

We are told not to take credit we don’t deserve, but Trump not only takes credit for the work of others — as when he cribs his Supreme Court picks from the Federalist Social and Heritage Foundation — but he takes credit for imaginary things — biggest inaugural crowd ever, nukes in the hands of North Korea? Solved.

We are also told repeatedly to do our homework, to be prepared, but Trump is allergic to planning and study. He prefers to wing it, ad lib, trust his gut. He gets dubious information from like-minded friends, and copies his answers from the paper of the Fox News kid.

We are also repeatedly taught to be careful not to break things we can’t fix, but Trump thinks nothing of busting the budget, creating huge deficits, degrading the environment, shattering long-standing alliances and shredding trade agreements.

Children are also warned constantly not to hang around with the bad boys. Trump, however, yearns to be the leader of the pack. He has surrounded himself with troublemakers and thugs from an early age and as businessman, and president has empowered them — Roy Cohen, mobsters, Michael Cohen, Scott Pruitt, Ryan Zinke, Paul Manafort, Wilbur Ross, Tom Price. And when Tump leaves home he prefers the worst company he can find — Erdogan, Duterte, Kim Jong Un, Vladimir Putin. He wants badly to be a part of the gang and beat-up on the well-behaved goody goody grown-ups.

We all know we hold our breath when our kids pay visits to other people’s homes, go on field trips, or take part in group activities. We have gone hoarse admonishing them to watch their manners, be polite, play nicely wth others, learn to share, and not bring disgrace on their parents, their town, their team, or their country, a shame that they will never live down.

But Trump habitually insults his hosts, pushes others aside to hog the limelight, insists on his way or the highway, loves to dominate the conversation, has no interest in hearing the other guy’s opinion, never waits his turn, talks trash, and if he doesn’t get his way threatens to take his ball and go home. And, of course, he has no respect for girls trying to play a man’s game — Angela and Theresa, this means you.

Trump was obviously never told that, if you re lucky enough to be invited to the grown-ups table at the countries’ club, learn the rules, avoid insulting the members or telling them how to run their own business or generally act the bully. After all, the club was created to keep the bully’s in their place and to provide a safe place for the members to meet.

This might be funny if the spoiled child was still just a serial bankrupt, real estate heir and TV clown, but what’s now at stake is thermonuclear war, trade wars, the survival of democracy, the economic well-being of the world, the air we breath, the water we drink, the earth we call home, and the country we love.

So, grow up, Mr. President, mind your manners, listen to your elders, learn to play with others, and quit idolizing the bad boys. They aren’t your friends, and don’t want you in their club.

Podunk And Its Discontents

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The cost of living where I reside is relatively low, drives to needed amenities or one’s job tend to be short. For over a decade I could more or less roll out of bed and into my office chair since my commute was ten minutes, tops. Now I’m more or less across the street from shopping and hospital.

The downside of this small city ease is a relative paucity of entertainment and culture. Yes, colleges and universities within a sixty minute radius offer plays, musical performances, classes and speakers. Road shows of big city drama and name brand musical acts come to call, though some names never darken our doors.

Still, the general level of the work is a cut or two below professional and the choice is limited. No major league playhouses, for instance, safe choices rather than classics or edgy fare, and only one major league sports franchise within 100 miles. We are in farm team territory.

Perhaps I was spoiled by growing up in a small college town that a river ran through and corn fields abutted, with its coziness, that was also only 20 minutes by car or rail from what was then one of the ten largest cities in the country. And in those days, the great engine of the robber baron’s industrial belt was going full stream, before the rust set in. And they supported cultural institutions.

So, we had at hand the Cleveland Playhouse, the Hanna Theater, a couple of art house movie theaters during the heyday of the New Wave, Fellini and Bergman, The Cleveland Symphony, The Cleveland Art Museum, a kid’s paradise in a Natural History Museum with planetarium, fine libraries, a fantastic park system, and pro hockey, football, baseball, you name it.

We were rich and didn’t know it. Especially since many of the museums were free to the public, or available at very low prices, as befit a blue collar town. I miss all that, but life is trade-offs unless you can afford to have it all. In this regard, the narrowness of a creature like Donald Trump is astonishing.

If I had a fraction of his dough and could take the elevator to Broadway, Off Broadway, Lincoln Center, clubs, cabarets, Madison Square Garden, The New York Public Library, The Metropolitan Museum of Art, MOMA, the Guggenheim, and on and on, I would. Day after day.

I am willing to bet he’s never attended a cultural event or contributed to the arts or sciences in his life, unless you count the discos of the 1970s where he picked up women who valued money over self-respect. But this is nothing new. I quote from memory, a mot by some wit, Shaw or Wilde perhaps, to the effect that many a duchess is born with the taste of her scullery maid and many a scullery maid with the taste of a duchess.

I console myself for the privations of Podunk by the new world in which we live. Today, even hermits living like the Unabomber can order a million books online that will be delivered to their hut in days or to their e-reader instantly. We can now stream videos from hundreds of channels. At our fingertips are classic films or the latest releases, documentaries, news, instruction.

I await impatiently pay-per-view access to Broadway Live, National Theater Live, concerts from far-flung venues featuring performers who will never put a toe near my town. Even a browse through the latest blockbuster art exhibits ought to be possible, though the picture quality may not match being there in person. But it will be a lot less wearying and costly than a trek to the nearest world-class venues in Washington or New York. The rural Planation aristocracy of the South did not leave the region as well endowed as the robber barons did the cities of the North and Midwest.

One dark cloud overhangs this scene of abundance. Public Television, which was supposed to provide food for the country’s soul, in the sense argued by Ellie Dunn in Shaw’s “Heartbreak House.” She said, “Old fashioned people think you can have a soul without money.” The literal-minded Captain Shotover thinks this is absurd. How much can her soul eat, he asks. “Oh, a lot. It eats music and pictures and books and mountains and lakes and beautiful things to wear and nice people to be with. In this country you can’t have them without lots of money: that is why our souls are so horribly starved.”

In my state, at least, Public Television may be slowly subjected to deliberte starvation. It appears to be less well-endowed than before. The Republicans nationally have long opposed subsidizing a service that they regard as subversively liberal. And now that my state has been captured by anti-government forces, funding may be reduced.

As a result, Public Television offers less than it used to, has begun to drift to pop culture offerings and to provide less art or science. Gone are the days of classical music, dance, the complete plays of Shakespeare, “The Ascent of Man,” and the like. We know artists are politically suspect, but science programming may also trespass on political verboten territory — climate change or evolution.

As a result, the quality of original programming has suffered and the quantity also appears under threat. More and more weeks a year are given over to reruns and fund-raising, accompanied by middlebrow fare never seen on Public TV except when trying to attract infrequent viewers long enough to beg for alms.

Much of the content of Public TV is imported from Britain, either because there is no budget for creating the equivalent of Masterpiece Theater, with its Dickens, Trollope, Conrad, Waugh, for the works of Hawthorne, Melville, Cather, Twain, Howells. Thus, a great institution, created to use the power of government to bring the riches of the big city to thousands of small towns and urban dwellers without the price of a ticket, is at risk of slowly dwindling away.

Our people and the survival of our heritage are the potential losers. Podunk may be off the beaten path, but it doesn’t have to be a cultural backwater. Trump is like the almost-literate man — can read, but won’t. He’s starving in the midst of plenty. Kids awakened to all the world has to offer are the richer for it, but if not exposed early and often may be culturally illiterate for life. A soul is a terrible thing to starve.