Red, White and Black

As Red state after Red state challenges the Patient Protection and Affordable Care Act, known derisively as Obamacare, it becomes clear that it will stand or fall according to Justice Anthony Kennedy. Several Federal District courts have affirmed and several have struck down the bill. I haven’t been keeping score but it doesn’t matter. The Supreme Court will decide its fate next spring which is to say that Kennedy’s vote will tilt the Court 5-4 one way or the other and the smart money is that he will side with Thomas, Scalia et al.

There was a time when observers might have held their breath over the outcome of such a ruling. In the long history of the Court there have been some significant defections from one camp to the other.

Most notable in recent years is Black and White. Hugo Black traded his Ku Klux Klan white sheets for a black robe in 1937. His white supremacy views gave way over his 34 years on the bench to the point that he became the most liberal, anti-segregationist Justice of the Warren Court.

Byron (Whizzer) White was appointed by President Kennedy in 1961. He traded his football jersey for a black robe. White had been an All-American collegiate running back at Colorado Univ. and later a star in professional football. Assumed to be a Liberal he went the other way voting against the Miranda decision and stood with Chief Justice Rehnquist as the lone dissenters in Roe v Wade.

Unless we witness a timely demise from the Court’s right flank either part or all of the Healthcare legislation is likely to go in the shredder. Clarence Thomas seems to have emerged, after twenty years, as the most ardent, if least vocal, conservative member of the high court. Whereas it was commonly thought that he carried Antonin Scalia's briefcase it now appears that it is the other way around; it is Clarence Thomas' decisions which are most widely hailed in far right circles... particularly with Dick Armey and the Heritage Foundation where his wife, Ginni, is employed.

We had our chance in 1981 to not only defeat but disgrace this spokesman of Libertarianism and corporate America. At that time the Democrats held sway in the Senate and Joe Biden chaired the Judiciary Committee. Our now vice president denied five people the opportunity to corroborate the testimony of Anita Hill. Shame on him and woe is me and you. Even then, why did the Democratic majority affirm him 52-48. It is roughly the equivalent of Noam Chomsky being endorsed by the Repugnants.

It is now five years since a peep has been heard from Clarence Thomas during the presentation of oral arguments before the court. In fact no one is sure if he isn’t catching up on his sleep as he leans back in his chair parallel to the floor. But either Justice Thomas or his law clerks write opinions dazzling to the assembled. He dips into history allegedly channeling the minds of our founding fathers as they turn over in their graves. I'd be interested to question Clarence Thomas if he also regards himself as three-fifths of a human being as our founders did.

So far has the spectrum drifted to the portside that even Antonin Scalia has taken exception to Thomas’ historical revisionism. Thomas ignores all precedents citing only the Constitution as if it were sacred text. He calls himself an Originalist. I call him an ideologue who has learned the knack of finding anything he wants to support his pre-existing dogma.

When questioned before Congress, John Roberts, under oath, assured his interrogators that he believed firmly in stare decicis which upholds court precedents. He and Alito then betrayed our trust by reversing the McCain/Feingold law and allowing unlimited corporate money to buy elections. The conservative majority are originalists when it pleases them and activist, quasi-legislators when it serves their clients’ interests. The validity of the mandate provision of the healthcare act lies in the power of the federal government to regulate interstate commerce which has been in place since 1937. Thomas will undobtedly argue that it nowhere appears in the original gospel of the 18th century. I wonder what Jesus thought.

The chasm in the political spectrum finds its model in the polarity of the Supreme Court. In fact it may well be the source of the conservative creed.

Closure And Forgiveness

What better forum to stake out an unpopular personal opinion than a blog?

That word "closure" causes my bile to rise and skin to break out in a rash. It usually appears in newspapers at the time of jury trials when victims or families of victims are seeking a maximum penalty for the perpetrator.

"Justice", they say, "must be served.” Is this not the Old Testamont trade of eyes and teeth? The concepts of justice, closure and revenge have become conflated.

When the octogenarian driver lost control of his car and ran into a Farmer's Market killing a dozen people the survivors demanded "closure" as if his incarceration would bring the matter to a close. It wasn't enough that the man would never drive a vehicle again.

When the Lockerbie terrorist was recently released to die at home it caused a public outcry. The man will be dead by year's end in any case. How does the cruelty of punishment by the state serve to balance the equation? It serves only to perpetuate the cycle. Ideally the matter is settled only when forgiveness and redemption are extended.

I am not arguing for the release of all convicts. Clearly some are incorrigible sociopaths and need to be separated from society. However I submit that we have become a fear-based nation, armed as no other. Given our recent war crimes with elements of sadism along with a criminal justice system disproportionately administered a correction is in order. Punishment rather than rehabilitation seems to me our preferred design.

A few years ago a drunk driver killed a student in Santa Barbara. The mother of the victim expressed her grief by testifying on behalf of the accused. She did not want another life wasted behind bars.

This act of transcendence was her way of finding meaning in the tragedy. As our consciousness evolves I would hope that society embraces this notion; that we seize these occasions as moments of transformation. The quality of mercy is twice blessed........upon him that gives and him that takes.

Final thought.......... I'm coming to believe that life offers us moments when we can become more fully human; opportunities not to be squandered. It may be people to love or simply to meet, soulfully. Forgiveness is a form of giving and what we receive in that act is even greater.

Umps Versus Imps

John Keats would have made a terrible umpire.

Umpires live in a world of absolutes. You're either safe or you're out, it's fair or foul, ball or strike. It is either raining or it isn't. It can't be both and it can't be neither.There is no time for indecision, nor the inclination.

The imp is full of mischief. He's the trickster,the elf and as such, the poet. Keats encouraged "Negative Capability"; being comfortable with doubt and ambiguity. The poet's trade is nuance, ellipsis, even irresolution.

If the umpire is the reigning patriarch the imp is the misbehaved child.

One umpire famously declared, "I don't call them as I see them, I call them as they are." This a triumph of objective reality over the subjective; as if the umpire, as a supreme being,is more than an expert observer, he is the teller of truth itself.
It is a declaration that truth exists independent of us; he is merely reporting what already exists.In his formidable black suit he signals his decree and walks away.

My rational mind also believes that the tree in forest needs no witness to fall. However I have found that this sort of thinking doesn't serve the imagination, the imp. The now archaic meaning of "imp" was one who furnishes wings. It is those wings that the poet insists upon. While the umpire defines the box and makes it his address the imp/poet/artist finds portals through the box walls.

In baseball we cede that power to his authority in order to get through the innings. In the real world we reject infallibility unless you have assigned your autonomy to one Ayatollah or another.

The closest we come to such irrefutable decision-making is our Supreme Court justices and we all know how astigmatic their lens can be. They are our umpires with a touch of the imp.

A book I am reading describes the fraternity of umpires as generallly conservative Republican, misogynist, WASP and homophobic. Pray that our high court is comprised of no more than four of such in their black robes.

Jury Nullification

After hearing a presentation by Paul Butler, law professor from George Washington Univ.,I learned about this little-known right of every citizen. Though this option is never announced in the courtroom every juror has the constitutional right to vote for acquital if he/she believes the law, itself, to be unjust.

It cuts both ways. In the antebellum period Northeners who aided in the escape of a fugitive slave to Canada were arrested for commiting a crime.However many were releassed when the jury found the Fugitive Slave law an abomination contrary to their higher moral standards.

However in the sixties civil rights workers were often beaten and even murdered. If perpetrators were found and tried they were often exonerated by the white-supremist jury employing the same privilege.

Mr. Butler argues that black juries can exercise this same authority by not convicting black or Hispanic drug users or even sellers of drugs as they see fit. The justification is that the enforcement of the law is unequally applied. 13% of both Whites, Blacks and Hispanics are drug users but 60% of the prison population
is Black or Hispanic.

The precedent could lead to lawlessness but so could democracy in theory. It is a way for people to redress grievences as they see fit and dramatize their plight to the legislators.