Friday, May 30, 2014

Letter to Mennonite Weekly Review

I wholeheartedly agree with the letter from Karl Bartsch in the May 26th issue. This whole idea of "welcoming but not affirming" strikes me as rhetorical nonsense.

In the same issue, I note an article on Dale Schrag's commencement speech at Bethel College. I have often heard Dale say that what Mennonites believe is that "Jesus meant what he said, and he was talking to us."

Jesus' whole ministry was about inclusion, not exclusion. My hope and prayer is that our conference will get back on track with this central message.

Thursday, May 29, 2014

David McCullough's "1776"

McCullough does his usual fine job in describing the activities of the Continental Army during the year of 1776. It was a very difficult year, filled with all sorts of problems for the army.

We think of 1776 as being a year of great achievement for the Continental congress, because of the Declaration of Independence, but in reality the congress failed miserably in providing General Washington with the troops and supplies he needed to wage the war. The British always had much more manpower, and were better equipped. At times some of the US soldiers had to make do without shoes, even engage in long marches without shoes.

Pay for the US troops was often lacking, and desertions happened on an almost daily basis. Disease was also rampant, and Washington usually could not even calculate how many soldiers he had under his command, so fluid was the day-to-day situation with soldiers dropping out due to desertions or disease.

We like to think of "Washington crossing the Delaware" when we think of the progress of the war in 1776. In reality, the war went very badly that year. The British were forced out of Boston, but they took up residence on Long Island, and then took over the entire city of New York when Washington blundered by not defending a particular entranceway into the city.

By giving us a day-by-day account of the struggles of the army, McCullough paints a good picture of what warfare was like in that era. Communication was always by letter, carried by messengers. The vagaries of the weather determined the outcome of  many battles.

My personal preference would have been a book which covers the entire Revolutionary War. I would also have preferred a more accurate account of the attitudes toward the war in the British Isles. McCullough says that public opinion in Britain was split almost equally. However, George Trevalyan's great history of what the British called "The American War" documents that the war was quite unpopular in Britain, with at most one-third of the people in Britain supporting it. Parliament was kept in line only by bribes from King George, and by the use of "rotten boroughs". Edmund Burke's passionate speeches against the war are considered some of the best oratory ever seen in the British parliament, and he had many supporters.

It is clear from "1776" that the colonies held together against Britain only because of the perseverance and leadership of George Washington. McCullough states that Washington "was not a brilliant strategist or tactician, not a gifted orator, not an intellectual. At several crucial moments he had shown marked indecisiveness. He had made serious errors in judgment." But despite these shortcomings, Washington persevered and by  his example inspired his men to believe in the cause of freedom they were fighting for.

The Supreme Court in 2013

My review of Supreme court cases decided in 2013 reveals that the liberal/conservative split is still alive and well. For purposes of this review I break down the justices as follows: the three liberals, which are the three women, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg; the three conservatives, Antonin Scalia, Clarence Thomas, and Samuel Alito; and the three in the middle, Stephen Breyer, who tends to vote with the liberals, John Roberts, who tends to vote with the conservatives, and Anthony Kennedy, who is right in the middle, and so is often the swing vote.

I looked in depth at ten cases from 2013. Let's start with the five in which the liberal/conservative split was exactly as stated above, with Kennedy providing the deciding vote. In Clapper v. Amnesty International, Kennedy sided with the conservatives in denying standing to a group of professionals who were challenging the new FISA law allowing government surveillance of communications between U.S. citizens and people in other countries, the problem being that the plaintiffs had no direct evidence that any of their communications had been intercepted. The four liberals dissented, stating that there was a "very high likelihood" that some of the plaintiffs' communications would be intercepted under the FISA law. The dissenters went to point out that "certainty is not, and never has been, the touchstone of standing".

Then we saw Kennedy siding with the liberals in Peough v. United States, a case challenging the new and tougher sentencing guidelines as an ex post facto law. The dissent argued that the guidelines were only advisory and not mandatory, and, since the sentence given was within the trial court's discretion under either set of guidelines, it should not be disturbed on appeal.

Kennedy sided with the conservatives in Salinas v. Texas, a case in which the prosecutor was allowed to comment to the jury on the defendant's silence when asked whether his shotgun "would match the shells recovered at the scene of the murder". After answering questions up to that point, he suddenly became very nervous and clammed up. The conservative majority rejected defendant's fifth amendment claim because he did not invoke the privilege against self-incrimination. Thomas and Scalia would go even further, saying his silence could be used against him even if he had invoked the privilege, because "the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony".

Kennedy aligned with the liberals in US v. Windsor, a case challenging the Defense of Marriage Act. Here the four conservatives wanted to deny standing, since the government had declined to defend the DOMA law before the high court.

Kennedy was again with the conservatives in Shelby County v. Holder, a case challenging the Voting Rights Act of 1965. Here the conservatives essentially substituted their judgment for that of Congress, which had just reauthorized the Act for another 25 years in 2006, following extensive hearings which had demonstrated that the need for it still existed. Yet, these so-called "conservatives" found the Act unconstitutional.

In three 4th amendment search and seizure cases, 2013 saw the interesting alignment of Scalia siding with the three most liberal members of the court. In Missouri v. McNeely, the court considered the question of whether a warrantless blood test of an individual arrested for DUI was OK as a matter of course. The court held it was not, saying that the normal test of exigent circumstances had to be applied before it would pass constitutional muster. Scalia sided with the three liberals in the main opinion, while Kennedy, Breyer, Roberts and Alito concurred in the result, but not in the court's reasoning used to reach that result. Thomas stamped himself as clearly the court's most conservative member by being the lone dissenter; he felt that exigent circumstances existed in every DUI case, due to the lessening of blood alcohol levels in the body over time.

In Maryland v. King, the court faced the issue of whether it was proper for a state to take a DNA sample from everyone arrested for a serious crime. The majority felt it was OK, saying it was part of the identification process, just like fingerprinting and photographing. Scalia wrote a  blistering dissent, and was joined by the three liberals in his dissent.

Scalia's dissent is absolutely fascinating. He does not follow the normal custom of saying he is "respectfully" dissenting. Rather, he makes it clear that he has no respect at all for the majority opinion, saying "it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error." He ends his opinion by saying that 'I therefore dissent, and hope that today's incursion upon the fourth Amendment, like an earlier one, will some day be repudiated."

Scalia undertakes an analysis of the Maryland law in question, and absolutely destroys the majority's position that the purpose of the DNA sample is for identification purposes. Rather, Scalia shows that the purpose is to conduct what he calls a "suspicionless search". Scalia asserts, correctly I think, that "No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crimesolving." So thoroughly does Scalia eviscerate the majority position, that one is left with the thought that if a law student were to submit the majority opinion as a paper, he or she would surely flunk.

So, what are we to make of Scalia's alliance with the liberals on these search and seizure cases? To me, it looks like Scalia simply takes the text of the constitution quite seriously. Indeed, he quotes the language of the fourth amendment, and goes on to examine the reasons for the adoption of the amendment. He states that the American colonists despised the British practice of using "general warrants", meaning warrants that did not specify who was to be searched, what places were to be searched, and what was being looked for in the search.

It should be noted in passing that the liberals lost this case only because Justice Breyer defected and voted with the conservatives. Usually when Breyer, or his conservative counterpart, Chief Justice Roberts, defects like this they will write a concurring opinion explaining their rationale. Breyer did not do so in Maryland v. King, so we are left to wonder about why he abandoned his liberal colleagues in this case.

In Florida v. Jardines, we see an even stranger juxtaposition of the justices in a search and seizure case. In this case, the police had an anonymous tip about drugs in a particular house, so they took a drug-sniffing dog onto the porch. After the dog alerted, they obtained a warrant and searched the house. The issue, therefore, was whether the initial intrusion onto the porch was justified.

Here again, Scalia wrote an opinion in which he was joined by the three liberals. Here, though, it was the majority opinion, since Justice Thomas joined in. Why Justice Thomas believed the Fourth Amendment meant something in this case and not the other two is unexplained, since he did not write a concurring opinion. Justice Kagan did write a concurring opinion, joined by her female colleagues, explaining that she felt the better approach was to rest the decision on privacy grounds, rather than on property rights. Breyer again broke with his liberal colleagues, but without explanation, as he simply joined in the dissenting opinion written by Justice Alito.

In Fisher v. University of Texas, the court was confronted with the issue of whether a university can use race as a factor in admitting students. The court ruled that strict scrutiny needed to be applied, and sent it back to the lower court to apply the strict scrutiny standard. Scalia and Thomas concurred in the result, but wrote separate opinions making it clear that for them race could absolutely not be considered,  and a prior Supreme Court ruling to the contrary should be overruled. The only dissenter was Ginsburg, but it should be noted that Kagan did not take part in the case.

In Hollingsworth v. Perry, the court considered the legitimacy of California's ballot initiative amending the state's constitution to ban same-sex marriage. Since the state had chosen not to defend that law, a majority of the court felt that the ballot initiative proponents who had taken up the cause did not have standing. The four dissenters were an odd mix: Kennedy, Thomas, Alito and Sotomayor. This odd mixture makes some sense, though, since each might have had a different reason for wanting the case decided on the merits, instead of on the standing issue.

It seems odd that standing was an important issue in no less than three of the above cases. One would think that such a basic concept would have been well-settled by now. It seems to reflect the reluctance of the court to deal with certain hard issues. But why take up the case at all if you are just going to cop out and say there is no standing to decide it?

"The Tempting of America", by Robert H. Bork

This book was published in 1990, a scant three years after Bork's ignominious defeat in the Senate for his Supreme Court nomination. It is obvious that Bork is using this book as an attempt to present his view of constitutional jurisprudence, and to hopefully rehabilitate his discredited views which led to such an embarrassing defeat.

The problem is that the book is virtually unreadable. I bought the book because I genuinely wanted to try to understand Bork's views. Instead, I found nothing informative or enlightening in it. In thinking back on Bork's hearings before the Senate Judiciary Committee, I realize that this was exactly Bork's problem at that time; he simply has no communication skills, no people skills, and could not communicate his views in an understandable way to anybody. When asked a question, instead of answering forthrightly, Bork would grimace, fidget around, look up at the ceiling, and then offer a lame, (usually) unintelligible defense of his views.

In Part III of the book Bork describes the confirmation process, from his point of view.  In response to the public opinion which was mounted against his nomination, Bork repeatedly says things like "every charge recounted was false" (p. 282), "there is not a word of truth in this litany" (p. 286), that "was as flat a falsehood as could be imagined" (p. 289), and many more similar statements, often referring to the accusations against him as "lies".

The salient point to remember here is that Bork had every chance to explain his views, and refute the alleged "lies", if in fact they were really falsehoods. For example, he explains that "I spent almost seven hours all told with Senator Spector, at the hearings and in his offices, discussing constitutional law..." The fact that Bork was unable to satisfactorily explain his views does  not speak well of his abilities as an advocate, hence as a prospective Supreme Court justice.

The fact is that Bork had every opportunity to defend himself, and had vigorous advocates on the Republican side who were defending him, and yet could still not make his case. At one point it was felt that he was going to withdraw his nomination, but after consultation with his wife and children he decided to stay in. He went to the White House and read a statement saying this, and then left without taking any questions from the media. Why he didn't take the opportunity to make his case to the interested public, he does not say.

How bad Bork's performance was during the confirmation process is measured by his pathetic results. He got 42 votes in the Senate. Four years later, by contrast, a much poorer candidate, arguably more extreme than Bork, certainly much less of a legal scholar, and carrying heavy personal baggage, was confirmed with 52 votes, ten more than Bork got, even though there were three fewer Republicans in the Senate than in 1987. That candidate was Clarence Thomas, who still serves on the court to this day.

This book constitutes Bork's (belated) effort to make his case, but it is every bit as pathetic as his efforts during the nomination process. It is little more than an exercise in self-pity.

Wednesday, May 28, 2014

A Perspective on the VA "Scandal"

I never thought I would use the words "Bob Dole" and "statesman" in the same sentence, but Bob Dole recently gave an interview in which he asserted multiple times that "The United States takes better care of its veterans than any other country in the world." This illustrates the wisdom that elder statesman have; this wisdom is based on two things: first, they have a vast amount of experience and so have a better perspective on things than the rest of us; and second, they are out of politics and so can feel free to speak their mind, unemcumbered by the needs and demands of partisan politics.

This whole "issue" of the Va waiting  lists is bogus on so many levels that one hardly knows where to start. First of all, no veteran is being denied care. Any veteran is free to go to any private health care provider, just as the rest of us do.

A recent caller to C-SPAN's "Washington Journal" made the point that a veteran is able to go a private hospital and still have the VA pay for it. He said that every veteran is given a pamphlet when he goes into the VA, explaining the procedure for this. The caller himself has had many surgeries, and never any problem with getting the VA to pay for them. Indeed, every caller to C-SPAN that I have heard has said that he's had excellent care at the VA, and has no complaints.

Certainly no reasonable person would deny that a veteran who has seen combat, and has health issues resulting from that combat, should be entitled to free, top-notch medical care. But the veterans whose "service" consists of sitting behind a desk for two years in this county is in a much different category. There need to be more sensible standards about who is entitled to free care.

A caller to "Washington Journal" provided some useful perspective. He is a plumbing contractor who does a lot of work in hospitals, both private and VA. he said that when a private hospital does something wrong, nobody hears anything about it. However, when a VA hospital does something wrong, it is splashed all over the front page the next day.

This is in line with what I discovered when working years ago for a government-funded anti-poverty agency. When I took exception to a critical article in the local newspaper and wrote to the reporter about it, I received a response saying that anything an agency does with taxpayer dollars is fair game.

Another problem is the need for any government agency to give "due process" to its employees. What this means is that, unlike in the private sector, it is very hard to get rid of an unsatisfactory employee. This is because of the Constitutional requirement that the government cannot deny anybody "life, liberty or property without due process of law". Since a job is considered to be a form of property right, we have the due process problem. Again, I ran into this working for a government agency, when an incompetent personnel director was fired, then went to court and got his job back, with back pay.

The best system is to get rid of all the layer upon layer of bureaucracy and red tape in the health care delivery system, and go to a single-payer system in which we all have the right to health care. When Dwight Eisenhower was contemplating running for president in 1951, a journalist asked him if he "believed in socialized medicine". Ike's response: "Well, I don't like that term, but I believe everyone in this country should be entitled to free health care." Ike's wisdom holds true today, even more so than in 1951.

Friday, May 16, 2014

"Presidential Leadership", edited by James Taranto and Leonard Leo

This book undertakes to rate the U.S. presidents, using a survey methodology thought to be superior to the usual technique, as used by C-SPAN in its surveys. C-SPAN surveys historians, giving each a list of ten qualities, and asks the responders to rate each president on each of these ten categories on a scale of one to ten. The figures are then added up to arrive at the final result for each president.

The C-SPAN methodology suffers from the fact that each of the ten categories are presumed to be equal in importance. This is a huge flaw. The editors of this book improve on this methodology by asking the responders simply to rate each president on a scale of one to five. Additionally, these editors, who represent two conservative organizations, the Wall Street Journal and the Federalist Society, seek to broaden the base of responders by choosing not only historians, but also political scientists and law professors. Also, an attempt is made to survey an equal number of respondents from the left and the right, correcting what the editors perceive as a liberal bias among historians generally.

The survey results are still hopelessly wrongheaded. But in addition to this basic problem, the essays on the presidents are each written by a different writer, some of whom agree with the survey results and some of whom do not. Consequently, there is no coherence to the book, no consistent standards used to evaluate the presidents.

There are so many internal inconsistencies that one hardly knows where to start. The essay on Andrew Johnson by University of Texas professor Jeffrey K. Tulis points out the folly of judging presidential success by how effective the president was in achieving his stated goals. Tulis states that if this standard is used, then Johnson was a "remarkably successful president". But Tulis believes that Johnson was in fact "an awful president", and evaluating Johnson's presidency "reminds us how cramped and inadequate is a notion of success confined to power and shorn from the ends for which power is deployed". In other words, the ends have to be legitimate and worthy.

How in the world, then, can John Adams be ranked 13th, and Lyndon Johnson be ranked 17th? Adams saddled the country with the odious Alien and Sedition Laws, which made criticizing the president a jailable offense. Indeed, when Adams left office, there were dozens of journalists languishing in prison for criticizing the government. What could be more unAmerican than that?

Similarly, the rank of LBJ in the top half is ludicrous. Every independent factfinder Jonson ever sent to Vietnam always came back with the same pessimistic report: it was an unwinnable war, and we had no business being involved in it. Yet, he continued on with his war, do only to his out-sized ego and his basic insecurity. LBJ should be ranked near the bottom, yet the ratings and the essay on his presidency support the top-half rating.

A basic principle of evaluating the presidents is that the evaluation should be based on their presidencies, and not their accomplishments outside their presidencies. Only the failure of the editors to observe this basic principle can explain how James Madison, William Howard Taft, and John Adams can all be ranked in the top half. All were mediocre presidents, though all had accomplishments during other parts of their lives which mus have entered into the thinking of those who offered opinions for this book.

Then we have the problem of blaming presidents for economic collapses that were caused by their predecessors. Thus, we have Martin van Buren (23rd) and Herbert Hoover (29th), both of whom were inexplicably rated lower than their predecessors: Andrew Jackson at 6th, and Calvin Coolidge at 25th.

The laissez-faire philosophy of the conservative/libertarian editors is shown in the essay on Bill Clinton, which contains this line: "the nation thrived mightily, as always when the White House does nothing". Yet, this principle is violated repeatedly when strong, activist presidents are routinely placed higher than they deserve. Andrew Jackson is the worst example of this. To place him 6th is a bad  joke. Jackson destroyed the monetary system with his repeated vetoes of the bills presented to him by Congress, leading ultimately to a horrible depression which his successor had to deal with. When Andrew Johnson thwarted the will of Congress, the book claims that this justifies his presidency being rated a "failure"; but when Andrew Jackson does it, for some reason his administration is nevertheless labeled as "near great".

The essay on Jackson mentions only in passing Jackson's forced removal of Native Americans west to present-day Oklahoma. His "Trail of Tears" saw a considerably higher percentage of deaths than the infamous Bataan Death March during World War Two. The essay does not even mention at all Jackson's infamous response to the Supreme Court decision in Worcester v. Georgia, when he supposedly said "John Marshall has made his decision; now let him enforce it!" Whether Jackson actually said these exact words or not is irrelevant, as it clearly expressed his views that the law meant nothing to him when it came to the forced removal of Native Americans to land unwanted by White settlers. For editors supposedly dedicated to limited, constitutional government, it is odd indeed that Jackson's efforts to deliberately violate a decision of the Supreme Court pass without a mention in this book.

And finally, we have the problem that presidents who returned the country to normalcy following the turbulent and error-prone tenure of their predecessors are routinely under-rated. In this category we have James Monroe, Rutherford B. Hayes, Warren Harding, and Gerald Ford.

To understand how important the Monroe years of tranquility were, one must understand how horribly disruptive were the years of his predecessor, Madison. Madison took the country into a completely useless war, the War of 1812, a war which accomplished nothing, ended in a stalemate, and triggered a serious secession movement in the New England states. The people surveyed for this book seem to think that the "Era of Good Feelings" under Monroe happened by accident. To the contrary, Monroe made every effort to personally travel to every part of the country, and to appoint cabinet members from every part of the county. His foreign policy pronouncement, the Monroe Doctrine, represented a giant step forward in the U.S. taking a proactive approach to foreign affairs, in contrast to the reactive approach of Adams and Madison, and the doctrine still resonates to this day. To rank Monroe only 16th is to say that no president  can be ranked higher than that unless he has had to face a huge crisis. I reject this narrow-minded thinking.

Similarly, Hayes represents a period of healing with the ending of reconstruction. Hayes also represents one of the most principled men to ever hold the highest office; he stated early on that he would only serve one term, because he didn't think a president should govern with an eye towards his re-election, and he kept his word on this.

Similarly, Harding represents a needed healing time after Wilson's ineffective presidency, and Ford represents a  healing time after Nixon's nightmare of a presidency.  These two, along with Monroe and Hayes, are all grossly underrated.

The book I would like to see is one that presents the criteria to be used right upfront, and then consistently follows through on rating presidents based on those state criteria. This book, by contrast, is all over the place.