Thoughts on Judge Kavanaugh’s Testimony

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Dr. Ford & Judge Kavanaugh

This past Thursday’s Senate hearing was, as expected, a spectacle. I won’t go too deep into the politics and the performances, i. e. Senator Lindsey Graham, of those on the Senate Judiciary Committee, but I did want to note something I found disturbing.

Dr. Ford gave very credible testimony in which she said she was “100% sure” that Judge Brett Kavanaugh had sexually assaulted her decades ago. She was poised for the most part and provided specific details. She made an allegation, but beyond that we have no corroborating evidence to back up her allegation. From a legal standpoint that’s important. No one should ever face legal jeopardy over an uncorroborated allegation. But let’s be clear, these Senate hearings aren’t legal proceedings. This is a political process. These confirmation hearings are about fitness for office and that is the central question under consideration.

So we heard from Dr. Ford. She made an allegation. She has the right to make that allegation, and we should want to hear and assess what she has to say against a nominee who’s being considered for a lifetime appointment to the highest court in the land. And since the Court, as with Congress, has itself gotten so highly partisan and dysfunctional we should be highly concerned about not making it even more so. I would argue that all this “he (or she) is qualified for the job” talk is trivial and beside the point in considering any nominee for any federal court. Most nominees that come before Senate confirmation are “highly qualified.” But being qualified is basic. It’s pretty damn clear the nominations are made with party politics in mind, not judicial independence. In fact, a solid record of judicial independence, of not towing the ideological line, is likely to have your name removed from the consideration of the various partisan institutes that create lists of judges for consideration and send them to the White House. So a judge’s politics has a big play in all this…and we should all be concerned with just how much it plays into a judge’s decision making.

And this brings me to my concerns about Judge Brett Kavanaugh. At first, prior to Thursday’s testimony of Ford and Kavanaugh, my feelings were that unless we have some corroborating evidence we should not sink a nomination over an allegation. We should take this allegation seriously, but fundamental fairness to the accused is fundamentally more important in my view. Because any of us can be unjustly accused. People, I know this may be hard to believe, will sometimes lie to destroy other people. To be clear, I’m not saying Dr. Ford is lying, only that in my view you should have more than an uncorroborated allegation before you decide to act against someone. And that was my view before Thursday.

But then came Brett Kavanaugh’s Thursday testimony before the committee, and another area of concern about his fitness for office emerged in my view. I completely understand why Judge Kavanaugh would be angry over Dr. Ford’s earlier testimony before the committee. Kavanaugh believed he’d been unjustly slandered. I’d be angry too. But in defending himself Kavanaugh went too far in my view. You see, as Kavanaugh began talking, at first, I was very sympathetic and felt Kavanaugh’s nomination should be confirmed. But then he crossed a line. He began to heave hyper partisan attacks on democratic members of the committee and even claim some conspiracy by the Clintons and other left wing groups. He did most of this on the edge of a barely constrained rage. And with that my support for his nomination melted away.

And here’s why: Kavanaugh is being appointed to a lifetime position on the highest court in the land. His demeanor and temperament are absolutely part of any assessment for this office. Judge Kavanaugh is not new to Washington politics and knows exactly why he was nominated—because of his “conservative credentials.” So he’s no choir boy about the implications of his appointment for those who aren’t so conservative and those who vehemently disagree with his judicial philosophy. Kavanaugh knows full well that confirmations are a political process, which means it can be a blood sport. There’s a lot at stake and Kavanaugh knew this fully.

So what should he have done? Well, he should have vehemently defended himself, sure, but he should have demonstrated far greater restraint. America doesn’t need another supreme court justice who’s basically confirmed for all of us his deeply held animus for members of the political opposition—who represent, by the way, millions of his fellow Americans. Just imagine how Republicans would react if the shoe was on the other foot. We already knew why Kavanaugh was being nominated, but most of us, I think, had a faint hope that all judges might, just might, be able to sometimes put politics aside for the sake of the nation when forming their judicial opinions. I guess I’d like to believe that while Judge Kavanaugh may have a conservative judicial philosophy (and that’s fine) he could be independent minded and not a mere partisan in a black robe. But by any charitable account, Kavanaugh chose to make it clear he has a deeply held animus against members of the democratic party and that he will carry that animus to the supreme court with him. I don’t care what your politics are, I personally don’t think it’s a good idea to confirm a judge knowing the very basic idea of fundamental fairness, independence, and the impartiality of the nominee are in serious question.

Consider Canons 1 & 2 of the Code of Conduct for United States Judges:

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. . . Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor.

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Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.

I cannot see how anyone could watch Judge Kavanaugh’s testimony this past Thursday and not feel that his fairness, independence, and impartially had been seriously compromised.

The members of the Senate Judiciary Committee represent states and party interests. None of us were surprised that politics openly influenced them or their decisions during this process. However, to watch a supreme court nominee vent his deeply partisan views was disturbing considering the position and power he will have for decades if confirmed.

Senator John McCain, 1936 – 2018

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Senator McCain Boarding Elevator at the Capitol (Imagine: The Washington Post)

On Sunday, September 2nd, Senator John McCain was laid to rest at the U.S. Naval Academy in Annapolis, Maryland.

I saw Senator John McCain often during my 4 years working at the U.S. Capitol Building in the early-to-mid 1990s. He was usually cordial—if not sprinting to catch a vote—and would sometimes chat with me in the hallways or while waiting for a subway car or an elevator. I was honored when McCain agreed to write me a letter of recommendation for a job I was interested in with the City of Scottsdale, Arizona. (I decided not to take the job in AZ and stay on Capitol Hill.)

A colleague of mine explained to me one night why McCain couldn’t raise his arms above his shoulders. I had never really thought about it, but I’d noticed it on a few occasions while observing McCain at events. Having been taken prisoner and severely tortured during the Vietnam War, McCain had suffered life changing injuries that, I’m sure, reminded him of his torturers all his life.

Though McCain was a Republican he was known for his political independence; thus the nickname “Maverick,” because of his ready willingness to buck his own party and vote with Democrats when he felt it was the right thing to do. This independent streak, naturally, availed him with independent–minded people. In 99/2000, McCain ran for the Republican Presidential nomination and generated a lot of enthusiasm with voters, especially young voters, via his Straight Talk Express campaign. A memorable aspect of McCain’s primary campaign, and the theme his life exampled, was his call for Americans to devote themselves to something higher than themselves and their own personal self-interests.

Now generally speaking, a politician calling for self sacrifice and devotion to a higher purpose is usually met with a bit of skepticism and sometimes mocking laughter. But that’s always been hard to do in McCain’s case. Because there is a big difference—massive, really—between those who pontificate and those who actually put up. We can talk about country, honor, and code and our dedication to preserving and protecting them, but how many of us could actually do it if faced with extreme pain and suffering—for years!—for doing so?

I think it’s worth posting a brief summary of what happened to McCain as a prisoner in Vietnam. It’s a commentary on the strength of character. It’s painful to read. But please take the time to read it. David Foster Wallace spent some time with the Straight Talk Express in 2000, and he wrote the following for Rolling Stone. In this segment, Wallace explains why McCain is a hero, not for what he did, but for what he voluntarily suffered in the service of something higher than himself.

Here’s what happen. In October of ’67 McCain was himself still a Young Voter and flying his 26th Vietnam combat mission and his A-4 Skyhawk plane got shot down over Hanoi and he had to eject, which basically means setting off an explosive charge that blows your seat out of the plane, and the ejection broke both McCain’s arms and one leg and gave him a concussion and he started falling out of the skies over Hanoi. Try to imagine for a second how much this would hurt and how scared you’d be, three limbs broken and falling toward the enemy capital you just tried to bomb. His chute opened late and he landed hard in a little lake in a park right in the middle of downtown Hanoi. Imagine treading water with broken arms and trying to pull the life vest’s toggle with your teeth as a crowd of Vietnamese men swim out toward you (there’s film of this, somebody had a home – movie camera, and the N.V. government released it, though it’s grainy and McCain’s face is hard to see). The crowd pulled him out and then just about killed him.

U.S. bomber pilots were especially hated, for obvious reasons. McCain got bayoneted in the groin; a soldier broke his shoulder apart with a rifle butt. Plus by this time his right knee was bent 90-degrees to the side with the bone sticking out. This is all public record. Try to imagine this. He finally got tossed on a jeep and taken five blocks to the infamous Hoa Lo prison – a.k.a. the “Hanoi Hilton,” of much movie fame – where for a week they made him beg for a doctor and finally set a couple of the fractures without anesthetic and let two other fractures and the groin wound (imagine: groin wound) stay like they were. Then they threw him in a cell. Try for a moment to feel this. All the media profiles talk about how McCain still can’t lift his arms over his head to comb his hair, which is true. But try to imagine it at the time, yourself in his place, because it’s important. Think about how diametrically opposed to your own self-interest getting knifed in the balls and having fractures set without painkiller would be, and then about getting thrown in a cell to just lie there and hurt, which is what happened.

He was delirious with pain for weeks, and his weight dropped to 100 pounds, and the other POWs were sure he would die; and then after he’d hung on like that for several months and his bones had mostly knitted and he could sort of stand up, the prison people came and brought him to the commandant’s office and closed the door and out of nowhere offered to let him go. They said he could just . . . leave. They had found out that McCain’s father was one of the top-ranking naval officers in the U.S. Armed Forces (which is true – both his father and grandfather were admirals), and the North Vietnamese wanted the PR coup of mercifully releasing his son, the baby-killer.

John S. McCain III, 100 pounds and barely able to stand, refused.

The U.S. military’s Code of Conduct for Prisoners of War apparently said that POWs had to be released in the order they were captured, and there were others who’d been in Hoa Lo a long time, and McCain refused to violate the Code. The commandant, not at all pleased, right there in the office had guards break McCain’s ribs, rebreak his arm, knock his teeth out. McCain still refused to leave without the other POWs. Forget how in movies stuff like this happens and try to imagine it as real: a man without teeth refusing release. McCain spent four more years in Hoa Lo like this, much of the time in solitary, in the dark, in a closet-sized box called a “punishment cell.”

Maybe you’ve heard all this before; it’s been in umpteen different media profiles of McCain. But try to imagine that moment between getting offered early release and turning it down. Try to imagine it was you. Imagine how loudly your most basic, primal self-interest would have cried out to you in that moment, and all the ways you could rationalize accepting the offer. Can you hear it? If so, would you have refused to go? You simply can’t know for sure. None of us can. It’s hard even to imagine the pain and fear in that moment, much less know how you’d react.

But, see, we do know how this man reacted. That he chose to spend four more years there, in a dark box, alone, tapping code on the walls to the others, rather than violate a Code.

Maybe he was nuts. But the point is that with McCain it feels like we know, for a proven fact, that he’s capable of devotion to something other, more, than his own self-interest. So that when he says the line in speeches now you can feel like maybe it’s not just more candidate bullshit, that with this guy it’s maybe the truth . . .  The fact is that John McCain is a genuine hero of the only kind Vietnam now has to offer, a hero not because of what he did but because of what he suffered – voluntarily, for a Code.

Whether one agreed with McCain’s politics or not really shouldn’t matter. What should matter, I think, is the high regard this nation owes to Senator McCain and those like him who truly serve this country (in the military or in public service) and who have or may be called upon to sacrifice for those ideals and institutions and freedoms that we all so cherish. Without them, without people like John McCain, we would not have the freedoms and way of life we love.

If there was ever a time we needed more John McCains on Capitol Hill, it’s now.

His leadership will be sorely missed.

Hang on to Your Hope

In March of 1973, a Mr. Nadeau sent a letter to E.B. White, the famed New Yorker writer and author of Charlotte’s Web, expressing his hopelessness about the state of humanity. Considering the state of political affairs today, especially in the U.S., we have good reason to revisit White’s encouraging and hopeful letter of reply:

North Brooklin, Maine,
30 March 1973

Dear Mr. Nadeau:

As long as there is one upright man, as long as there is one compassionate woman, the contagion may spread and the scene is not desolate. Hope is the thing that is left to us, in a bad time. I shall get up Sunday morning and wind the clock, as a contribution to order and steadfastness.

Sailors have an expression about the weather: they say, the weather is a great bluffer. I guess the same is true of our human society — things can look dark, then a break shows in the clouds, and all is changed, sometimes rather suddenly. It is quite obvious that the human race has made a queer mess of life on this planet. But as a people we probably harbor seeds of goodness that have lain for a long time waiting to sprout when the conditions are right. Man’s curiosity, his relentlessness, his inventiveness, his ingenuity have led him into deep trouble. We can only hope that these same traits will enable him to claw his way out.

Hang on to your hat. Hang on to your hope. And wind the clock, for tomorrow is another day.

Sincerely,
E. B. White

Remembering John Glenn (1921 – 2016)

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Senator John Glenn

The morning mists at Arlington National Cemetery were still visible as I stood watching the slow precision of the officers folding the U.S. flag. Everyone stood completely still as the ceremonial team of the United States Capitol Police (USCP) carried out this final symbolic act of a grateful nation. This funeral took place in the early 1990s. I don’t recall who it was for. But I do know the deceased had served in the armed forces and then completed a second career with the USCP, protecting and serving the U.S. Congress.

When the two officers completed folding the flag, the officer holding the flag turned and ceremoniously stepped toward a man in a gray suit who was standing at attention waiting to receive the flag. The officer handed Senator John Glenn the flag and saluted him. Senator Glenn saluted the officer back. Senator Glenn then turned, walked around the casket to a woman seated in front of the casket, bent down toward her, and with both hands gently handed her the folded flag. As she grasped the flag Senator Glenn spoke: “On behalf of the President of the United States, the President Pro Tempore of the U.S. State Senate and the Speaker of the U.S. House of Representatives, please accept this flag as a symbol of our appreciation for your loved one’s service to this Country and the United States Congress.”

I had watched this entire event from my position about 25 yards away, standing quietly by myself near a parked police van. When Senator Glenn was done he walked over and stood next to me. I hadn’t expected it. It was just him and I standing there in silence as the ceremony continued and the burial team’s bugler began playing taps. As the sad and final note of taps began to fade, the Senator broke the silence: “You know,” he said in a quiet and solemn tone, as he stared out across the sea of gravestones, “I’ve heard that many times and yet every time always seems like the first emotionally.” The Senator had come here to Arlington that morning because he had known the deceased U.S. Capitol Police officer and volunteered to present the flag.

As the ceremony ended, the Senator asked me where I was from and we began talking. I’d seen the Senator around Capitol Hill a number of times since I’d arrived in 1991, but I’d never really had the chance to talk one-on-one with him, so I took this opportunity. I knew what most people knew about John Glenn; that he’d been an astronaut and, of course, a Senator. But I didn’t know much more. I remember at one point asking him about his military career:

“So you were a Navy pilot?”

“Oh no, I was an Marine Corp Aviator.”

“Oh, so the Marine Corp has Aviators too?”

Turning toward me and speaking through a playful smile, “I didn’t know there was any other type?”

I chuckled at this good humored shot at the Navy. The rivalry was still alive with this retired Marine Corp Colonel. We stood there talking for about another 5 minutes, and during that brief time I remember feeling a deep sense of admiration and inspiration.

Until he left Congress in 1999, I would see Senator Glenn around the Hill on a number of occasions. He was always friendly and always seemed to remember me and our brief conversation that morning in Arlington. He would typically stop for a moment to shake my hand and exchange a few words. It was always a real pleasure.

John Glenn was a true American hero and a powerful inspiration for any aspiring leader. In this uniquely uncertain time in American history, we need to look to the lives of people like John Glenn as the example of what truly made America a great nation.

He will be missed.

(John Glenn passed away on December 8, 2016. He was 95)

My Thoughts on the Presidential Election

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The morning after the catastrophe election on November 8th, I jogged to the Lincoln Memorial on the Mall of Washington DC. I entered the memorial, where the statue of Abraham Lincoln, the first Republican president is located, and stood there in meditative thought. Out of the profound silence, I thought I heard the whisper of Lincoln’s ghostly voice: “Holy shit, you’re kidding me.” I turned and stared out across the National Mall toward Capitol Hill and wondered the same myself.

I’ll admit I have a bias against people like Donald Trump. I prefer leaders who act magnanimously toward their rivals and those they disagree with. I prefer leaders who can speak intelligently, responsibly, and realize that words really do matter—because, believe me, they do. I prefer leaders who’ve done their homework, actually understand the issues, taken the time to study them in-depth, and can talk intelligently about those issues. I prefer people who don’t abuse their status or celebrity and instead act with graciousness and kindness toward those less fortunate than them. And I definitely prefer leaders without an elaborate and well attested history of immoral behavior. I guess, in brief, I prefer leaders who’ve consistently demonstrated a spirit of nobility and excellence instead of the very opposite qualities. So naturally I find people like Donald Trump an anathema in positions of public leadership. To me—an a very large swath of America—Donald Trump may be the most unfit man to ascend to the Presidency in our nation’s history.

But now the deed is done and we’ll have to suffer through it. I’m doubtful that Donald Trump or those around him will ultimately be able to help most Americans—especially the working class—improve their lives much. The same trickle-down economic policies the Trump team (and GOP Congress) are currently batting around are the very policies that caused the stagnation of the middle-class and decline of the working class over the past few decades. Another big consideration is that a number of the problems in working class communities are self-inflicted and not amenable by government policy. In short, there are cultural problems that have to be resolved or dealt with within those communities before any outside assistance can help.

I suspect we’ll see mostly policies that favor the Donald Trump’s of the world (his family’s wealth and prosperity), while many of the programs and investments in the middle-class and working class are cut in order to provide more corporate largesse and tax breaks for the rich—who don’t need them and we can’t afford to give them. It’s really about math, and many of us will likely be on the losing side of the equation with this administration and this congress. And so the march toward a bigger, even stronger, more powerful oligarchy resumes.

But prove me wrong! Believe me, that would be fine by me. I like pleasant surprises.