Back to the Future, But Not Too Far!

We are a country that is obsessed with the future, with facilitating the next phase of our “progress.”  In the process, we have lost our collective, our societal mooring to what has made the United States a great social and political experiment.  

As I’ve noted in previous posts, our society is dysfunctional in many respects.  But there are two central problems.  One is that virtually all political power is now in the hands of major corporations and the rich; they call the shots in Washington, not the people.  The other is that these same actors, as well as many average citizens, seem to have no concern for the welfare of their fellow citizens, and in the case of corporations, their workers.

One can place a band-aid here, and another there.  But that will not change any of the basic problems that we are facing and which are pulling the United States down from its great potential.

I have therefore argued for a revolutionary change in attitude and perspective on the part of our political parties and citizens.  This revolutionary change is not to something “new,” some utopia, but rather back to ideals and standards that served this country well and made it strong during the 20th century.  

In the first 125 years of our country’s history, things were pretty much a frontier-style free-for-all.  Each person for himself.  People who needed help generally weren’t helped, and those who were on the make pretty much got away with anything they tried.

But at the turn of the 20th century, the country took a progressive turn in its politics under Republican President Theodore Roosevelt.  The government and people saw that things had gotten out of hand and that there was massive inequality in power and wealth in the country.  Because such inequality did not square with our founding ideals, there was a realization that government needed to become a more active player to insure that the average citizen wasn’t exploited, and that power was more evenly distributed.

Thus, during the first 20 years of the new century, the progressive income tax was introduced, the robber barons were regulated, massive holding companies like Standard Oil were broken up, and workers were given the right to unionize.  And women were finally given the right to vote.  

As I state in my book, We Still Hold These Truths, a social contract developed that gave practical shape to Lincoln’s famous, “government of the people, by the people, and for the people.”  There was an increasing emphasis on a balance between rights and obligations, between business interests and the public good, with each person contributing to support the government’s efforts to level the playing field, each according to his ability.

Following the 1929 stock market crash and the resulting Depression, government saw the need to increase its role both in providing a hand to those in need (for example, the enactment of Social Security) as well as regulating the excesses of big business (for example, the Glass-Steagal Act).  In the mid 1960s, Medicare was enacted together with a host of measures to further improve the balance and fairness of our society. 

Congress also passed major civil rights legislation in the 1960s, although it must be said that while these laws resulted in certain improvements in their lives, the basic standing of most black Americans in our society and the conditions in which they lived and were educated were left virtually unchanged.  And they were still frequently subject to various forms of both institutional and private discrimination.  (See my posts, “The Mirage of Civil Rights,” and “Our Failed Economic/Social/Political System.”)

But I don’t want to overstate my case.  Needless to say, throughout these progressive periods, there were plenty of people, both in Congress and in the populace, primarily Republicans, who were against both measures to regulate business and efforts to increase government spending or other efforts to help those in need.  Even during the Depression and its immediate aftermath, there were people, and not just the rich, who literally hated FDR!  In 1932, the height of the Depression, Roosevelt only got 58% of the popular vote when he ran against Hoover, although he swept the electoral vote.

In this regard, it should be noted that regardless of the huge changes shown in the electoral vote map, indicating landslide years, the popular vote has never been a landslide.  For example, in 1972 when Nixon got 96% of the electoral vote, he received only 61% of the popular vote.  Likewise, when FDR got 98% of the electoral vote in 1936, he got only 62% of the popular vote.  The country has historically been quite divided.  

Then along came Ronald Reagan, the same man who had campaigned vigorously against the enactment of Medicare, who as President famously said that, “Government is not the solution to the problem.  Government is the problem.”  Reagan didn’t invent a new movement.  He just gave voice and a popular face to deep feelings that have always been held by a large percentage of the voting population, legitimizing those perspective.

The fervency and bitterness of these feelings grew and deepened over the following years, culminating in the Tea Party movement and the current crop of Republican radicals (they should not be referred to as “conservatives”) in Congress.  What they, led by the billionaire Koch brothers and others who back them, want is nothing less than a return of this country to its 19th century ethos, when it was each man for himself, without any interference from or help by the government, of course with the exception of Social Security and Medicare from which most of them directly benefit.  Unfortunately, they don’t see the irony in this.

What I am calling for is a return to the 20th century ethos (Reagan excepted) of balance and social responsibility plus a changed attitude towards black Americans.  

This is not a soak the rich movement or class struggle.  It is a movement that seeks a return to the ethos where we are all part of a society, that recognizes that many people are born into situations that place huge obstacles in their attempts at pursuing the American dream of happiness and equality, and that those who have made it, who have benefited from the system, have a responsibility as citizens to help the government in its efforts to assure that all have true equal opportunity.  

In this regard it should be noted that for most of the income tax’ existence, the highest tax bracket ranged from 60 - 94%, dropping down to 50% during the Reagan years.  So the current top rate of 39.6%, and even the various suggested increases, are historically low.  It should also be noted that regardless of the tax rate, the rich have always remained rich.

Nor is this an anti-business movement.  The health of our economy and of the businesses that make it prosper are of critical importance to the well-being of all Americans.  Business interests must always have a significant place at the table.  But we have learned all too often that it is nevertheless not true that what is good for corporate America is good for all Americans.  Thus there must be a balance between the needs of business and the greater public good.  Maximizing profit cannot be the sole goal of a responsible corporation in a democracy.  

For example, the New York Times just reported that corporate lobbyists working with their friends in Congress (on both sides of the aisle) inserted a provision in the omnibus spending bill that just passed that continues a tax loophole that benefits casino and hotel owners as well as major Wall Street investors to the tune of $1 billion.  That is to say that our tax revenues will continue to be reduced by that amount from what they otherwise would be.  That is unconscionable.

Nor is this a big government movement.  I for one feel strongly that government should be as small as it can be while executing the functions that are its responsibility.  There should be no holy cows.  Every aspect of government must be justified by the purpose it serves and its effectiveness.

What I seek is simply government of the people, by the people, and for the people … all the people.  Not government of the people  (they do still elect), but by corporations, and for corporations.  Which sadly, is what our government has to a large extent become.

The citizens of this country deserve better.

When Is Justice Not Justice?

For the last few decades, certainly since President Reagan’s nomination of Robert Bork, the nomination and confirmation process of Supreme Court and lower Federal court justices has been political theater.  It was not always so.  

Chief Justice Roberts stated in a recent talk reported in The New York Times that earlier in the 20th century “The Court was not regarded as such a partisan football.  A lot of nominations of this time were Republican presidents appointing Democrats and vice versa.  The Court wasn’t regarded as a place where partisan matters would be worked out.”  

And so it should be.  Not that partisan matters shouldn’t come before or be considered by the Supreme Court.  But they shouldn’t be decided on a partisan basis.  The only proper question is whether or not they violate the Constitution, and that should be a strictly legal question, not a partisan one.

In front of many courthouses there is a statue of Justice, a blind-folded woman holding the scales of justice.  Since the 15th century, she has been blind-folded because of the belief that to be “justice,” a decision must be without regard to who is being judged or who the victim or other party is.  Justice must be impartial.

But what does that mean?  Is it just a matter of it making no difference, for example, if someone is rich and powerful as opposed to poor and weak?  Or whether someone is black or white?   

Not quite.  It must go deeper because for that to truly occur it means that justice must be blind in the sense that those meting it out must be blind to their biases, their attitudes … everything but the facts.  That is the essence.  Political and personal attitudes must be left at the door.  Only then can a judicial decision truly be made without regard to who the parties are; only then is justice impartial.

For example, in a case which pits corporate rights against the individual, being pro-business should not impact the decision.  In a case involving abortion-rights opponents against women’s choice proponents, siding with one side or the other emotionally or intellectually should not impact the decision.  The same is true for any case that pits parties on opposite sides of an ideological divide against each other.

The reader may respond that what I’m suggesting, nay demanding, is not possible.  It is indeed difficult for someone to put aside their biases and attitudes when they have the opportunity to further them.  But when one is a judge, I believe one must.  Otherwise, the justice handed down is not impartial.  And if it’s not impartial, it’s not just flawed, it isn’t justice.

It is in the legislative branch of government where biases and attitudes have a legitimate role.  We live in a representative democracy and representatives should as a general rule speak on behalf of their constituents, which means representing their biases and attitudes.  Yes, representatives are supposed to act in the best interest of the country (or state or city), but what that “best interest” is interpreted to be is inseparable from biases and attitudes.  It’s the nature of the beast.  And majority rules.

But the judicial branch is another matter.  Its role is to objectively interpret the meaning of laws, apply laws to individual cases, and decide if laws violate the Constitution.   Objectivity requires impartiality … both as to who the parties are and what they stand for, as well as in the law’s interpretation.  If the law is unclear as written, judges can look to the history of legislation or the history of the Constitution to decide how to interpret it, but not to their own political and social (as opposed to legal) biases and attitudes.  They are always interpreting, not rewriting, the law.

The Supreme Court is often criticized by Conservatives for what they term “judicial activism,”  which they claim is rewriting the Constitution.  Funny, though, that phrase is used by the Right exclusively when criticizing a liberal decision by the Court.  When the Court does the same but leans to a conservative interpretation, that term is not applied.  

But the term “judicial activism” as criticism is bogus.  Legitimate activism is inherent when interpreting the Constitution.  It was written in the 18th century.  The founders had their philosophies and attitudes, revealed in the basic principles stated in the document, especially the Bill of Rights, but they knew they could not foresee how society and enterprise would be transformed over the centuries.  They wrote a document for the ages, and that necessarily requires that broad concepts be applied to situations never envisioned.

As an aside, I want to make clear my view that there are both liberal and conservative elements in the Constitution’s language.  The creation of this country and its founding documents was a working out of the tension between these two views of government.  The result was a grand compromise.  The Constitution may be a profoundly liberal document overall, but it has its conservative aspects.  There is no denying that.

Often when dealing with the Constitution, looking at the language and contemporary documents while helpful still leaves the question open of how it should be applied to modern circumstance.  To answer this question, the Court has taken cognizance of society’s current attitudes - sometimes explicitly, sometimes not - in determining its proper application.  This is quite different from justices interjecting  their own attitudes and biases.  Referring to contemporary societal attitudes is more like asking what the founders would say in the current context.  This process does not disturb impartiality.

Let’s take two famous cases of activism as examples.  In Brown v Board of Education, the Court overturned its earlier decisions that separate education was equal and declared that separate education was inherently unequal.  What brought about this changed interpretation?  

When Plessy v Ferguson was decided in 1896 and supported state-sponsored segregation (in this case of railroad cars), society was not ready for integration.  The Court, applying contemporary standards, stated that the 14th Amendment “could not have been intended to enforce social, as distinguished from political, equality or a commingling of the two races unsatisfactory to either.”  

And so they interpreted “equal protection of the law” quite narrowly and upheld the stated intent of Louisiana’s segregation statute as providing equal but separate accommodations. The Supreme Court, always wary of being too far in front of public opinion, conscious that they are not a legislative body, prefers to step lightly.

But the world and our society was at a different place in 1954 when Brown was decided.  Blacks were generations removed from being former slaves.  They were a part of society in a way that they weren’t in 1896.  While the South was still not ready for integration, the rest of the country had moved forward.  

And so the Court struck down segregation as being inherently unequal.  It wasn’t just a question of how much money was spent or the quality of education.  The very concept of the government separating the races in providing education flew in the face of the 14th Amendment’s guarantee of equal protection of the laws.

The point I’m making is that because society had changed, the interpretation of the meaning of the Constitution required a change.  The Court may in fact have been more liberal in 1954 than in 1896, but looking at the case objectively, they came to the correct decision.

Many people, especially in the South, were outraged at the decision and felt that their State’s rights had been trampled.  This decision was perhaps the first decision where the Court was viewed by many as stepping into the partisan arena, the issue of race clearly being a highly charged social issue.

But it is the task of the Supreme Court to decide whether a Federal or state law violates the Constitution.  The fact that it happens to involve a highly charged area of social, as opposed to political, life does not remove it from the jurisdiction of the Court.  Society had changed in the intervening six decades since Plessy and so the Court in Brown properly came to its decision.

The other case I would cite is Citizens United v FEC, the case that declared that corporations are “people” to whom the 1st Amendment of the Constitution applies.  Thus their, and other organizations such as labor unions, right of free speech meant that they couldn’t be prohibited from spending money to influence elections through “independent” advertising in the 90-day period preceding an election.  

There was no legal precedent nor contemporary documentation to support the decision that the right of free speech applies not just to individuals but to organizations.  Nor was this a question of society having changed in a way which required a change in interpretation.  Corporations had not become weak entities that needed free speech to protect themselves.

And mind you, the law that was struck down did not say that corporations couldn’t spend any money on issue ads; it just said that in the 90-day period prior to an election they couldn’t run ads that mentioned a candidate.  There was a rational fear that a deluge of corporate money into advertising during the period could easily tilt an election.  Corporations and organizations, after all, do not have the right to vote, and so they should not have the right to unduly influence elections.  

But the Court now had a distinctly Conservative majority on issues pertaining to business.   They said that free speech was so important to our democracy that corporations should have that Constitutional right, regardless the lack of precedent, and so they struck down the law.  

This was a clear instance of the justices substituting their political judgment for that of Congress and also rewriting the Constitution.  This was the opposite of impartial justice. This was judicial activism that deserved to be criticized.

The American Bar Association Model Code of Judicial Conduct states in Canon 2.4 (b) that, “A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.”  That’s close to what I’m saying in this post although I think that “interests” is more narrow, more circumscribed, than “attitudes and biases.”  

The actual Federal Code of Judicial Conduct, however, is unfortunately less helpful on this point; it also doesn’t apply to the Supreme Court.  It states that, “A judge … should not be swayed by partisan interests, public clamor, or fear of criticism.”  It further states that a judge should disqualify himself when he “has a personal bias or prejudice concerning a party.”  Advisory opinions regarding the Code all seem to deal with external evidence of perceived partiality … connections to groups or individuals … rather than actual partiality of a judge.

But if a judge’s membership in an association that takes public positions on controversial topics would raise questions regarding his impartiality, then it follows that his private biases and attitudes on such matters should not be brought to bear on a case because it would disturb his impartiality.  I would urge that the point be stated unambiguously in all Codes of Judicial Conduct that judges must not apply their personal or political biases and attitudes to the cases before them.  Only then will impartial justice truly prevail.

Finally, I come back to the initial point I made in this post regarding the selection of judges.  If we want our judges to judge impartially, then how they are selected is of utmost importance.  Judges should be appointed for their neutrality, for their objectivity, not for their record of either being liberal or conservative.   

There are existing models for this.  At the state level, many judges are now appointed by non-partisan commissions using a merit selection plan.  Observers have long argued that this should be true for all state judges.

I would argue this should be true for all judges, regardless whether state or Federal.  A list of several candidates should be selected by non-partisan commissions, with the actual appointment then being made by the President/Governor.

The idea behind lifetime appointments for Federal judges was to remove them from the pressure of politics, which in one sense it certainly has.  But it hasn’t removed politics from the judicial process.  If a judge takes his political leanings with him on to the bench, he or she will apply political as well as personal biases and attitudes in rendering decisions, making them examples of partiality, not impartiality.  Both the way judges are selected and the Codes of Judicial Conduct must be changed.