Friday, February 20, 2015

Aesop's Fables: Fifty Shades of . . . Hate

Once, a young man was taken into police custody.  When arrested, he was in the throes of a cathartic release of violence on a young woman.  His fingers had to be prised from around her neck.

The young lady, lay battered and beaten on the ground.  He had been pulled off her. But how did this all begin?

She came into his perceptions. Early on, he hardly knew her. But as he came to know her, he began to hate her. His hate was a matchstick to start. He began by mocking her in speeches and in class. He called her names. He despised her reputation.

Later, he befriended other young ladies that also despised her. When he and they met up, they did little else except talk about the young lady, how despicable she was, how offensive her very existence was to them.

All the while, inside himself, he seethed with self-loathing, because of a rotten childhood that taught him nothing of the values that the young lady embodied, even is she did so imperfectly.

When the opportunity presented itself, he sprang on her out of the dark. He knocked her to the ground, knocked her teeth out, pummeled her, and, when the opportunity arose, looked over and caught the adoring grins of the not-so-nice young ladies that loved him now for hating her so well.

As he sat in his jail cell, waiting to learn if he would be prosecuted for a vicious assault, or for murder, he could hear the TV set behind the guard post.  Evening news stuff. Comments about his case. It turned out that a former prosecutor made a statement on one of those 24/7 coverage networks. Hesaid, "well, we don't know everything at this point, but one thing this evidence makes clear, He didn't love her."

The media had a feast. How dare the prosecutor question the manner by which this young man chose to show his love for the young lady? How low would a former government official sink in a patent effort to get attention? How obviously racist the comments were?

All the while, the media did not cover the brutal beating of the young lady, how badly she had been savaged by the man, the depth of the cuts, the permanence of the wounds, or the unjustified nature of his attack.

The moral of the story:

Giuliani is right, all we have to go by is the evidence, and the evidence says that Obama does not love America.

Sunday, February 15, 2015

Boorda, Clinton and Williams: The Decline of Honor and the Rise of Rascals

The Nation’s Capitol, and the Nation’s military services, were rocked by word that Admiral Jeremy Boorda had taken a gun from his home, stood in his front yard, and ended his life.  It was 1996.  Boorda had heard that Newsweek magazine was following a lead that that would accuse him of wearing two service medals reflecting Vietnam era service to which he had no proper claim. Although Boorda served in the Navy and was stationed within the Vietnam area on ship, his ribbons included the “V” for Valor a designation typically reserved for awards in the theater of combat. Boorda stopped wearing the “V” on his ribbons when a military historical group began seeking information on his Vietnam era service via requests made under the Freedom of Information Act. 

Conspiracy theorists will chasten me for not understanding how this was a murder and an act done to hide deeper, darker secrets.  I beg their indulgence, because the point here depends upon the accepted narrative.

Boorda’s raft of military ribbons and medals reflected the rise of an enlisted man to the highest rank in the United States Navy.  His, by available information, was a career of dedication and service to the Navy, and to the Nation. That a man would suffer under such pain of feared humiliation for the Navy, for his family, and for himself, that he would end his own life may be odd to some.

If you grew up -- as did I, my siblings and many friends -- in a military family, it makes perfect sense. 

These were more than just words.  These were ideals very familiar to us.  We saw, then, our fathers doing their duty. By their service, both they and we sacrificed for our country.  By distinguished service, they honored themselves and the Nation they served. 

We also experienced the pain of seeing failings in these principles. 

Our dad, who retired as a Colonel, spent his last duty years as the Senior Courts Martial Judge for the Navy’s Piedmont District.  Never one to bring his war stories to the dinner table, by the time he served in that post, I was old enough to have awareness of the more notorious cases being over which he presided. Murders, assaults, drug dealing, the occasional “conduct not becoming an officer and gentleman” (my recollection is that charge arose when one officer conducted an affair with the wife of another officer while that second officer was deployed).

We had also, of course, followed the news coverage of the My Lai massacre’s aftermath, including the prosecution of Lt. Calley. So we had our understanding of duty, honor and country given full relief both by their exhibition and by their omission in the lives of the military men and women among whom we lived, by whom we were raised.




I think it likely that the high personal toll of those ideals weighed heavily on Admiral Boorda’s mind. I regret that the toll was so high. I acknowledge, however, his determination that the threatened exposure of an alleged false claim of entitlement to certain military honors could only be soundly answered by the act of suicide. Of course, he was wrong in that. Suicide was not the only answer, nor was it an answer at all. The Nation, one that then was prepared to tolerate a President using an intern for oral gratification in the Oval Office, would have embraced him forgivingly given an appropriate acknowledgment, resignation, and removing himself from the National stage.

As it turns out, we have a rather high tolerance for high jinx from persons of position, prominence and wealth. To prove the point, simply contrast Admiral Boorda’s wrong – wearing Vietnam era service ribbons to which he was not entitled – with the bold, and bald-faced, lies of Hillary Clinton and Brian Williams.

Brian Williams now seemingly pays the price for having enhanced his resume. Williamshad claimed that, during coverage of the war in Iraq, he was aboard a helicopterthat was forced to make an emergency landing after it was hit by enemy fire.

Williams' tale of danger enhanced an acknowledged danger that no one would have reasonably disputed. Iraqi forces might well have fired on US Military aircraft. There was no need to add the embellishment, or to misreport the fact of his near presence to such danger. Still, without any seeming necessity, he did just that.

His fall came suddenly, when one who knew the pertinent facts stepped forward and contradicted Williams’ established claim. NBC’s news division has suspended Williams without pay for six months. Wags and pundits predict that Williams will not return to his former position.

Then there is the curious case of Hillary Clinton.

On several occasions, Hillary Clinton embellished her telling of the tale of avisit she and daughter Chelsea made to Bosnia back in 1996. As the storygrew wings of imagination, Hillary recounted how she and Chelsea were forced to run from the plane that just landed bringing them to Tuzla, Bosnia,to ground cover.  This mad dash was, Hillary claimed, made necessary by the presence and actions of a nearby Bosnia sniperwho firing on them.

The story had a ring of plausibility to it.  After all, Bosnia, Serbia, we all sort of remember, was deeply involved in some crazy violence and fighting.  Who would doubt the specifics of such an instance when it was so well matched to the generally understood fact that life in these countries, during a time of significant national turmoil, was quite dangerous? Unfortunately for Hillary, witnesses, including the entirely objective witness of the camera, showed that hers was a tale of danger as entirely cut from whole cloth as any Nancy Drew mystery. Ultimately, she was compelled by obvious and overwhelming fact to walk the story back from the precipice of patent prevarication.

Unlike Williams, Clinton’s deliberate lie on a topic where a lie was completely disconnected from any claim of necessity did not result in swift dispatch from the public scene. No. The former First Lady and United States Senator became the Secretary of State under Barack Obama. Imagine the sniggering up the sleeves as foreign ministers underwent prep with their aides for meetings with Secretary Clinton. Just cogitate on what it meant to have this Nation’s international interests guarded by a reputed liar. How unreliable could any assurance she made be thought to be by those invited to place their trust, their nations’ futures, on so shaky a ground as Clinton’s veracity and memory.

So Admiral Boorda, in a terribly sad act, committed suicide as a way, as he understood it, to preserve the honor of military service. Brian Williams tendered a weak apology for his misremembering of the details of an incident due to the “fog of war.”  Hillary Clinton walked back the danger laden details of a trip to a war ravaged Nation.

In the end, our losses from the lies and dishonesty are disproportionate. Admiral Boorda need not have committed suicide, and could have remained a strong reminder of the equality of opportunity that military service in the United States provides, having risen from enlisted typist to Admiral. He could have continued to provide a resource of understanding about our Naval service, its organization and operations.  Instead, he died on his front lawn at the Navy Yard, and left only the sad legacy of a suicide.

Neither Clinton nor Williams appear so moved by notions of duty, honor and country that anyone appears concerned that a suicide watch would be necessary now, for Williams, or back in 2008, for Clinton. Clinton’s glide path to power appears undisturbed by her open exposure as a liar.  What becomes next of the meteoric Williams’ career will be revealed by time.

Our loss of Boorda is just that, a loss to the Nation. Our despatch of Williams into the Hall of Television Shame seems like no loss at all. That we might even have the opportunity to vote against Hillary Clinton despite her lies about Bosnia, when no need to lie existed, says much about how little honor, duty and country seem to matter any more.

Monday, February 9, 2015

The Curious Case of A National Suicide Pact

I continue with my reading in the letters of Thomas Jefferson and of Abraham Lincoln. My admiration for the constitutional acuity of Jefferson never diminishes as I read, but only grows.

Jefferson, writing to Judge Spencer Roane, puts the character of an issue in his day in sharp relief, and, in words that are applicable today as then. There, speaking of the Supreme Court's decisions by John Marshall, he characterizes the decisions as utterly beyond constitutional bounds. In fact, he declares that, if the Constitution in fact authorized the Supreme Court to be the sole and final voice of interpretation of the Constitution, then it was a "felo de se," a “felonious act of suicide."

Jefferson's letter responding to Judge Roane, and steering away from a view expressed in a letter published in the Richmond Enquirer, sets out his view that each branch of the federal government was bound to its own construction of its powers and duties under the Constitution. Moreover, he concluded that the Constitution did not extend to any single one of the three branches of the general government a general power of interpretational superiority to the other branches. Rather, each branch was duty bound to interpret the Constitution as necessary to its performance of its own duties. To the extent that the checks and balances of the Constitution empowered one branch to exercise authority over another, that could only be done as expressly stated in the Constitution.

Thus, for example, impeachment is clearly a mechanism by which the executive and judicial officers may be restrained by Congress from unlawful or, in its judgment, unconstitutional acts. But there was no power granted to the President, for example, simply to suspend or dissolve Congress, or the courts. So an Order of the President dissolving Congress and calling for new elections might impress the President, but it would not compel Congress to end its deliberations.

In his letter, Jefferson, with the long view of eight years in the Presidency, and a decade following that of contemplation, knew precisely how to illuminate this political philosophy of his: he explained the underlying dispute in one of the most oft-cited and discussed cases of constitutional law, Marbury v. Madison.

As Jefferson saw the matter, in a series of last minute, midnight appointments, John Adams signed and sealed a set of commissions for justices of the peace in Alexandria. Those signed commissions literally were laying on a table in the office of the Secretary of State when Jefferson took office, and he forbade that they should be transmitted to those named, including Mr. Marbury. Jefferson remonstrated against the decision -- even though it dismissed Mr. Marbury's claim against Jefferson's Secretary of State, James Madison -- because the Court, when it could and should have simply said, "Case dismissed," used the occasion to set out its view on its supremacy in constitutional construction.

Jefferson states the view that, in the hands of judges such as John Marshall, the Constitution is made into a thing of wax, to be bent and twisted to the preferences of judges.

That might sound familiar to some of you.

There has been an ongoing battle, just some 210 years long, over the character of the Constitution as a changeable thing. Judges, including William Brennan, Harry Blackmun, Thurgood Marshall, and Ruth Ginsburg, all exhibit a manner of constitutional construction that is in keeping with the view that the Constitution is like a living being that it is capable of growing and developing through the Court's construction of it. Jefferson, as President and as emeritus to that office, like Antonin Scalia and Clarence Thomas, take the Constitution as a thing of fixed meaning, not capable of expansion merely by preferential interpretations given to the document by themselves or any judicial majority.

Yet, in his day, Jefferson saw this propensity to view the Constitution as a thing capable of being transformed in the hands of unchecked judges. That is the central concern of his letter to Judge Roane. That was his concern then. That is our danger now.

Yes, our danger now.

Today, courts across the nation are proceeding apace, in the name of applying the Constitution, to strike down State laws and State constitutional amendments on the subject of the definition of marriage. Here I am not stating a case against recognition of same sex marriage, or rejecting the power of a State, through the exercise of its republican mechanisms, to do so. Instead, I am confirming what you already know: that the judicial cabal, principally consisting of federal trial and appeals court judges, has claimed for itself a superiority the republican will of the People in some twenty six States of the Union.

Article III of the Constitution sets out the powers, duties, and boundaries of the Judicial Branch of the General Government. If the Supreme Court, or an inferior federal court, exercises power or authority, it does so, if legitimately, only within the bounds and terms set out in Article III.

Yet, one can search in vain for the "Marital Supervisory Authority Clause" within Article III of the Constitution. It is not there to be found.

And, one can search in vain for the "Supremacy of Constitutional Construction Clause" within Article III of the Constitution. It is not there to be found. 

Indeed, one can search in vain for the “We'll Do as We Damn Well Please Clause” within Article III of the Constitution. It is not there to be found. 

These powers of the Courts -- to exercise a supervisory control over State laws regulating marriage, to the exclusive and final construction of the Constitution, and to do as they damn well please -- are the product of two hundred years of deformation of the Constitution. They most assuredly are not express powers grained to the federal judiciary in Article III.

Some, including friends and family, may celebrate today's, or recent, decisions by federal courts, regarding such matters as marriage equality, or the rights of undocumented aliens, or the like. As ever, I just note for your consideration what Jefferson warned in his letter to Judge Roane. You gain such victories in these circumstances -- not by popular sovereignty, which is the truest and best bulwark of liberty, -- by a softly tyrannical oligarchy. Though that oligarchy patronizes your preference today, it can be turned on a wind, just like a sailing ship.

If you would not lose those liberties that you prize, you should not applaud the abuse of them in the name of liberty.

Saturday, February 7, 2015

The Monster in the Senate Closet: The Filibuster

Imagine the innocence of childhood.  No fears of tomorrow.  No concerns about mortgages, taxes, illnesses, broken families.  Yet, even into the innocence of childhood, monsters will creep.  In my childhood, the boys in our family shared to large rooms in the basement of our Falls Church, Virginia home.

I love basements.  There is a moldering smell due to dampness.  There are crevices and hideaways to explore.  They are indoor playgrounds of manifold opportunities.

When the night comes, though, and the lights go down for bed time, a basement, just like a bedroom with a closet, becomes a place of great danger to a child's active imagination.  I am not ashamed to admit creeping from the bed to our little half-bath when I had to relieve myself.  Creeping along the basement walls and ducking low as I passed underneath the high set windows that were, as much as anything else, a means of ventilation, since they were at ground level outside the home.

Why did I creep so softly and gingerly?

For fear.

Fear of what was outside that might be looking in.

Others had the same experience of fear, but their childhood spent in bedrooms with closets, they feared the boogeyman in the closet. Movies are made in the horror genre that feature the child's bedroom closet because so many know that gripping fear of the closet.

Of course, we grow up and realize the true horror of what is in the closet:  handme down clothes, stinky socks, the odd spider, toys.  Nothing to fear. Now we laugh at our childhood fear.

The United States Senate has lived under the grip of a mortal terror for nearly two centuries.  Far too long, the Senate, a mature institution of popular sovereignty and governance, has laid about under the grip of that monster in the closet.  Oddly, at a time when we, who belong to the fellowship of former closet monster victims, are long past being held hostage to the imagined monster, the Senate continues to quake in fear and inaction.  And it appears that even removing the Democratic majority in the Senate will not snap the Senate out of the grip of its terrorized paralysis.

Here are a couple examples drawn from the headlines:

At the beginning of the new Congress, socialist Bernie Sanders summoned up the boogeyman in an effort to prevent adoption of the Keystone pipeline legislation:

Not to be outdone, New York Democrat Chuckie "Where's the Camera" Schumer and other Democrats threaten a filibuster of the separate funding legislation for the Department of Homeland Security:

During the tenure of George W. Bush, the Director of the nonprofit where I worked asked me what could be done about the filibuster being used by Democrats to block confirmation votes for Bush's judicial nominees.  There was, of course, talk about the "nuclear option" but what was that option, how would it work, how could it be given effect and why should it.  These were his questions to me.  That set me to the task of reviewing the Senate's filibuster practice, the Senate Rules governing that practice, and the political wisdom of that practice.

Based on my research and study, I concluded that the Senate, at any time a majority of those present and voting wished to do so, could amend the Senate Rules and eliminate the filibuster by the vote of a simple majority.  I also concluded that eliminating the filibuster was a sound political decision that our organization, The American Center for Law and Justice, should support.  I have not waivered from that view since then, even when the Senate filibuster allowed Republicans in the minority to hold the Senate hostage to their demands.  (While the document bears the names of two other ACLJ attorneys, it is solely the product of my research and writing).

Today, we are once again being terrorized.

Yes, terrorized.  Just as when parents soundly sleeping are startled awake by the nightmare screams of their child, whose horrified screams simply embody their fear of the monster in the closet.  Our body politic is disturbed by the pretended fear of Republicans that they will be held hostage to Democrats in minority through the device of the filibuster.

The problem for Republicans is that the monster in the closet no longer terrorizes those who were minding the legislative store during the last session of Congress.  Then, in a fit of pique, the Democrats finally pushed through a change to the Senate's ridiculous and time-honored practice. Harry Reid bullied those changes through to accommodate Obama's petulant demand for judicial confirmations and Republicans' skillful play of the filibuster rule to prevent votes on certain judges. Because Reid, via a simple parliamentary procedure, changed the filibuster rule and practice as applied to judicial and executive nomination votes, we now know a parliamentary truth:

A simple majority vote of the Senate -- taken at any time the Senate is in session -- can be used to amend the Rules of the Senate.  Such amendments may change even long practiced senatorial privileges as the filibuster.

Once you have gone into your closet with a matured judgment ... and with the lights on ... you begin to realize the infantilism in your night terrors.  You chuckle at how you were held in rigid paralysis by the certainty that a monster would leap out and take you wherever it is that closet monsters take their unwitting victims.  And so it is here.  We know that the only reason that Democrats can obstruct the Senate Republican majority is if the Senate Republican majority chooses to play terrorized child, captive to a rule that has no more merit or substance in this era than does the closet monster of our childhood in our adult lives.

While the horror genre provides entertainment, and perhaps even serves a psychological purpose of providing manageable doses of fear that we can conquer by confronting, it is a poor framework for the exercise of, or for preventing the exercise of, political will.  The Republicans should overthrow the vestiges of the filibuster, and legislate apace.