Sorting Through All The Crazy

I was going to post some links to different posts I thought worth reading.  But the first one is probably more than enough.  

The real Joe Gerace   - Lex Treinen worked on the article that exposed Bronson's Anchorage Health Department head for adding non-existing  masters degrees to his resume and led to Gerace's resignation.  This link takes you to background on that piece - the work and revelations that led up to it.  It's good, open book, here's-how-I-got-this-information type journalism.  

"A few days later, I was in Fairbanks sitting on a beach. I called a former business associate of Gerace.

'I’m surprised Joe’s in charge of the homeless in Anchorage,” the man said, “I remember we used to drive down 3rd Avenue where the homeless shelters used to be. Joe would talk about taking out his rifle and shooting the people camped there.'”

After lengthy background investigation and some personal interactions earlier, Treinen finally calls Gerace to confront him with the evidence he's found of padded resumes.  While Treinen thought he might be hung up on, the interview lasts over an hour.  It seems like Gerace knows he's cornered and while he starts out putting up some resistance, it's just bravado. before he gives up.   He's almost begging Treinen to not be too harsh on him. 

I asked him about his guard service. He dodged. I pressed again, trying to nail down a detail, or at least an acknowledgement of dishonesty on his resume. He squirmed like a slippery salmon. Sometimes his words were too confusing to understand his answers. Sometimes he made excuses. But sometimes he acknowledged he’d lied, like when I asked him about the 5 combat deployments he listed on one of his resumes.

Me: Were you deployed in combat? 

Gerace: No. 

Me: You wrote on that Visit resume that you have five combat deployments.

Gerace: Did I write that? 

Me: You wrote that. Do you know why you would have written that?

Gerace: Can you show that to me? Does it say that? 

Me: Yes. On the Visit resume that was shared with me. 

Gerace: I don’t think I wrote that Lex. 

Then Treinen moves on to the masters degrees.  Here he just folds completely.  He knows his lies have caught up with him.  Perhaps a load has been taken off him as he confesses.

" I asked him about his MBA, which he said was from Henry Cogswell College. 

Me: We checked with them, and they said they don’t they didn’t offer a Masters of Business in the year that you got. How was it you could have got it?

Gerace: I don’t know. I don’t know. I can’t answer that question.

Me: You don’t know how you got a master’s degree? 

Gerace: Wait, wait, stop. I do. I went to the classes in Everett, Washington.

Me: Do you know why they would say that they don’t have any record of that in the state of Washington doesn’t have any record of that degree? 

Gerace: I don’t know, because I’d have to ask them because there was some when the school closed, there was some heavy confusion about how to even get our stuff.

He refused to say where he would have got his Masters in Physician Assistant Studies as well. I wound down the conversation an hour and a half into it and he promised to send me copies of his degrees before the end of the day. Still, it was surprisingly cordial. Several times he tried to elicit sympathy, talking about protecting his former partners from harm that might be caused by publishing this story, or talking about the decades of service for people he’d claimed. He told me a stroke he had last week had left him partially paralyzed on his left side, and he was having trouble concentrating. Finally, he half-heartedly begged for some sort of mercy. 

'You’re gonna destroy my credibility all over I mean, I get you have to do it. Can you just not say that Joe’s not — fine, Lex, just do whatever you need to do,' he said."

Definitely worth reading for Anchorage folks. 

 My sense is that Bronson got elected because of two issues - the COVID mask requirements and the Golden Lion planned conversion to a drug rehabilitation facility.  The Kriner crowd supported him on the masks and a group of Geneva Woods NIMBY's supported him so he'd shut down the Golden Lion plans.  And that seems to be his basic agenda.  I'm sure there's also some national GOP help since they are so into local government control.  And censoring libraries is a big deal for them, which would explain our library director fiasco. 

Oh, yeah, he wants to buy a giant tent to put the homeless in.  The Assembly blocked that and it looks like Bronson might have pushed the homeless to the Centennial campground so he could argue there's no option left but going back to the tent idea.  So now we have to find the link between Bronson and the tent manufacturer.  I'm sure it's there, but it's just one more thing I haven't had the time to pursue.  

Election Thoughts After Four Hours As a Poll Worker In A Unique Election [Updated]

 It's election day in Alaska and I had a four hour shift - from 10:30am- 2:30pm - today at a local polling place.  Below are things that struck me about today.  But first an explanation of this unusual election

As a preface to non-Alaskan readers, this was a particularly unusual election. 

1. There were two different elections happening at the same time
1. There's a special general election to replace US Rep Don Young who died in office.  There was already a primary election earlier.  Today's winner will finish Don Young's seat which ends in January 3, 2023 and when new Representatives are sworn in.
2. There's a regular primary election for the November general election. 
2. Alaska is changing from regular party primaries to open primaries and then ranked choice voting in the general.  So the top four candidates go to the general election.  At the general election, voters can rank the candidates from one to four.  When your choice candidate is eliminated, your second choice vote is counted. This goes on until one candidate has more than 50%. 
3. So, the special general election today to replace Don Young is ranked choice.  The primary election today, voters only pick one candidate for each office.  Confused yet?  It's not that hard, but it's hard to describe it clearly.  

Turnout Seems High  [UPDATE August 17, 2022: The unofficial primary results for Senate seats show a wide variation in turnout from district to district.  Some in the teens others in the thirties.  But absentee ballots and mail-in ballots would seem to still be out. Where I worked today had 30% as of the latest results]

There were 100 votes when I got there (2.5 hours after the polls opened) and 260 votes when I left at 2:30.  

The person who organized this group of poll workers sent out emails about how primaries and special elections tended to be slow and that we should bring something to read or otherwise occupy our time.  

So, in my four hour shift, 160 people voted.  If I'm calculating right, that comes to one vote every 90 seconds.  

So, is that a lot?  There are 1800 on the register for that polling place.  So by 2:30pm 14% of the voters in that precinct had voted.  We've had municipal elections with 20% of voters voting.  And there were 5.5 hours left for people to vote, and the after work hours tend to be the busiest.    

Also, there were some disabled voters, whose votes do not go in the voting machine so they aren't in my tally.  Also there were some questioned ballots that aren't in my tally. (People who weren't on the voting list for this precinct, didn't have ID, etc.)  

And, of course, a lot of people voted early or by mail.  So based on the precinct I worked at, voter  turnout is pretty strong.  

A friend working another polling place says they had 600 votes by 3:30pm.  

The Voting Machine

My job was helping people get their ballots into the voting machine.  It's a Dominion machine.  The company that sued Rudy Guiliani and Sidney Powell for defamation and is also suing Fox News.  That suit was allowed to proceed recently.   The instructions are to pull the ballot out of the privacy sleeve a little bit and then push the ballot into the slot.  But most people were having trouble with that.  The ballot wasn't catching enough, or maybe they were squeezing the privacy sleeve which kept the ballot for pulling out.  So I started telling people to pull it out about four inches.  That really wasn't much better. 

Finally I told people I would stand way back so I couldn't see their ballot and they could then pull the ballot out of the privacy sleeve altogether and put it in the slot.  That worked easily at least 90% of the time.  

Once the ballot goes in, you have to check the little screen on the machine.  If all is good, a message flashes saying it was successful and there's a check mark.  But that's up for maybe 3 seconds and then it's ready for the next ballot.  If you aren't looking for it, it's easy to miss. 

But if there is a problem, the screen tells you, very specifically.  Things like voting for two candidates instead of just one.  Or on the ranked choice part, that people marked more than one candidate the same ranking.  Or that they put in two write-in candidates.  Then you have a choice of pushing a button to cast the ballot anyway, or to return the ballot.  Then they can tear up that ballot - and turn it in to be saved in a special envelop, and they can have another ballot.  But they can only do that twice.  Most of the time the ballot was successful.  

Other than the ballots being tricky to insert into the machine while in the privacy sleeve, the machine worked well.  

Civility 

All but one voter were polite, friendly even.  Most thanked me for volunteering*.  No one objected to my suggestion that I would stand way back and then to take the ballot out of the privacy sleeve.  They listened and nodded politely and did it.  

There was one exception.  And this lady wasn't rude to me, but she shared her opinion in an angry tone (but again, clearly not aimed at me) and said, "This election is totally fucked up."  This was not a young voter.  

Who Voted?

I wasn't signing people in so I couldn't see the political affiliation of the voters.  And that really wasn't relevant since everyone now gets the same primary ballot.  I'm not even sure that information was on the register.  

It seemed to me that the people voting were far more likely to be over 50 than under 30.  Perhaps this just reflected that I was there mid-day when younger folks are working. (Though that's probably less a factor in 2022 than 2019.)  The vast majority was white.  

Most were not wearing masks.  But there were people wearing masks as well.  All the poll workers wore masks.  

A few people had kids with them.  

Write-In Votes

You can only choose one write-in candidate for the ranked choice part of the election.  I found that out when the machine alerted me that someone had put in two write-in candidates.  Afterward we talked about that.  The consensus seemed to be that there could only be four finalists in the ranked choice part of the vote.  It was speculated that had Al Gross not dropped out after being the fourth candidate, there would have been no write-ins allowed.  But I don't know for sure.  

There was some dispute about whether non-certified candidates could be written in.  I mentioned that I'd asked about the difference between certified and uncertified write-in candidates at the election office last week and they said there was no difference.  But another worker said someone who wasn't certified couldn't take office.  That might be, because my question was about what happens to someone's SECOND vote (in the ranked choice voting), if they voted for a non-certified write-in candidate first or second.  The answer was, there is no difference.  In both cases your next vote would count if no one got 50%+1 in that round.  

One Odd Incident

At one point I noticed there was a woman who had been at a voting booth (one of the two without privacy covers) for a while.  I guessed about 30 minutes already.  And then our precinct captain asked me if she had voted.  She was gone, but I didn't notice her if she voted.  (I was the person staffing the voting machine.)  One of the people signing people in said she saw the women walk by when I was helping someone else vote.  Yes, she'd signed in and been given a ballot.  She was holding a privacy sleeve (and presumably a ballot inside) when she walked out.  Someone checked the trash cans outside the gym we were in, but there was no ballot. 

All the ballots are given out in numerical order and in the end all the ballots have to be accounted for.  Torn up ballots are counted.  Challenged ballots are counted.  All the ballots that go into the voting machine are counted.  Fortunately someone so the woman walk out with a ballot - though she didn't realize the significance until we put it all together.  So that ballot got an special report to account for it.  

I Voted Stickers

The last part of my job was to make sure there were enough stickers for people who voted to choose from.  Really.  We first make people choose who to vote for and then when they think they are done, they have to choose which I Voted Sticker they want.  

There's the traditional Alaska flag sticker.  One that shows three different sets of shoes below the voting curtain, and then three different Alaska Native themed stickers.  At times it was busy enough that I was down to two or three stickers left on the chair.  

Voting Location Changes

[UPDATED August 16, 2022  6:40pm]  I forgot this point when I first posted.  A lot of people voting today were used to voting at a church nearby.  They went there first. One of the early morning poll workers put up a sign on the church door to come to our location.  But some of the people coming from the church were not listed on our register.  The poll workers were able to look up the voters (on their phones) to find out their new polling place.  It was a couple of miles away.  Another sign was then added to the church door.  But this is an issue that Redistricting Boards should consider more carefully when the draw their lines.  I know my old polling place is now in another district and my new polling place is further away.  Seems to be an issue.  Of course, this is also the first time many people are voting after Redistricting is in place for the next ten years. 

I'm not sure how the ranked choice votes are tallied. [UPDATED August 18, 2022 1:15am:  From the Division of Elections website

"Ranked Choice Voting Tabulations

Ranked Choice Voting results will not be available until August 31, 2022 once all eligible ballots are reviewed and counted."

Here's the link for the primary election unofficial results.]

 First all the votes have to be counted.  Then one candidate is dropped and all that candidate's second choice votes have to be distributed to the remaining candidates until someone has over 50%.  That obviously has to be done centrally when all the votes are in.  So it may be a while before we find out the winner of the special election.  And I don't know how the public verifies that the second and third choice votes are properly allocated.  I guess will find that out in the next week or more.  

*I mentioned that a lot of people thanked me for volunteering.  I was, in fact, volunteering.  The Division of Elections has a program where a non-profit can volunteer to run a polling place.  Instead of paying the staff, the non-profit gets paid.  But my understanding is that most people working at polling places are paid.  And there's nothing wrong with that.  Just a clarification.  

Too Much To Think About, So Relax A Bit With Nature

 

The liatris is blooming as it usually does this time of the summer.

I haven't dabbled in dahlias for a long time.  This one plant zoomed up about five feet with a stem at least an inch of diameter.  All the others are between one and two feet high with no blossoms.  I have no clue why.  I would assume it has to do with the soil, but this one is in a pot with two others that have done nothing much.  

And, with the rain that we've been having this August, the mushrooms are popping up everywhere.

Even on gray, rainy days the bike trails (this one through UAA) are beautiful and refreshing.  Though on this stretch it would be nice if the huge bulges were smoothed out.  Someone has marked them with blue paint, but four to six inch humps at the bottom of a hill are more excitement than I need.  

Am I stretching the nature theme here?  The eggs we buy at the market are hardly natural.  The peaches may be a bit more so. Probably not.  The bananas? Don't really know.  But the raspberries are from the back yard and get nothing but compost and water.  

Jacob asked in the comments in the last post about whether the US was headed for another civil war.  I'm thinking about that.  We probably need to consider the concept of civil war beyond the US Civil War.  At this point I doubt we'll have a civil war in the last US Civil War style.  The split among people is not nearly as regional, and from what I can tell, the craziness has been stoked a lot by Russian compromised politicians and social media bots that whip up extremist fervor.  More like, if democracy is defeated, it will come from the long term Conservative campaigns (Kochs, Federalist Society, wealthy) to capture the courts and local and state governments in order to gerrymander elections to keep Republicans in control in states, and to have enough influence on redistricting to skew Congressional elections to the right.  The Senate, because every state has two Senators, is already skewed to the right.

"In the incoming Senate, Democratic senators will represent at least 20,314,962 more people than their Republican counterparts — and that’s if we assume that Republicans win both runoff elections in Georgia. If the two Georgia seats go to the Democrats, the Senate will be split 50-50, but the Democratic half will represent 41,549,808 more people than the Republican half."

That's from a November 2020 Vox article. 

Alaska Special Election - Does It Matter If A Write-In Candidate Is Certified Or Not?

The quick answer, I got from the Division Elections yesterday, is No.  

I'd read online that only write-in votes for write-in candidats who had registered and were certified  would count.  

Normally, a write in candidate wouldn't really matter.  But on a ranked choice vote, if you pick one as your first or second choice, it could matter if no one gets 50% of the vote on the first round.  Then the candidate you vote for second would get the vote if your write-in candidate is dropped. 

But when I asked my question in the voting room (at the Division of Elections on Gamble near Fireweed) they had trouble actually answering.  There were no instructions about who the certified write-in candidates were in the voting booth.  It just said how you could write in a name. So then I asked someone else.  

Instructions in the voting booth

Is there any difference in how a certified write-in candidate is treated and just writing in Donald Duck?

If I put Donald Duck as my first choice would my next choice get my vote in the second round, the same as a certified write-in candidate?  The person couldn't really answer my question.

She walked me down the hall and got someone from the Division of Elections to respond.  In the end, the Division of Elections person said it didn't matter if the write-in candidate was certified or not.  If you vote them number one and it goes to a second round, then your second choice would count.  

Even if it's Donald Duck?  Yes.

When I asked what the point of getting certified was, I was told that maybe more people would know you were a candidate.  

I guess it's good that we learn in a special election before we're faced with new questions in every race.

It wasn't easy deciding how to vote.  My first choice was easy.  But do I really want to vote, even third or fourth for Sarah Palin?  Or for Nick Begich?  Both are Trumpers, apparently happy with the Supreme Court's abortion ruling.  And that Trump keeps saying the election was stolen.  The one is mostly fireworks and an attention addict, but the other seems more problematic because he's smarter and hardwired with Fundamentalist upbringing and pro-business ideology.  Palin will get tired after a while, but Begich could do real damage.  Wouldn't have to even think about this without Ranked Choice Voting.  And without Ranked Choice Voting, Palin and Begich would take votes away from each other giving Peltola a path to win.  Why didn't Santa Claus come in fourth?  

Meanwhile we have great "I've Voted" sticker options. 

The Woman In Gold Has Special Meaning For Me

Bear with me as I wander a bit.  In the end I will recommend you watch Woman in Gold on Netflix.  

My mother used to send me clippings about a woman, Maria Altman,  in LA who was suing the Austrian government to win back paintings by Gustav Klimt, stolen by the Nazis from her family, with the main attention on the portrait of Adele Bloch-Bauer, who was the beloved aunt of Maria Altman.

It turned out that Maria Altman was someone my mother knew.  My mom would shop at her small dress shop.  They became acquaintances, if not friends, because they had both fled the Nazis as young women and they both worked most of their lives. Sometimes my mom just related things Maria Altman told her about the progress (or lack of progress) in the proceedings to get back the paintings the Nazis stole from her wealthy family's Vienna house.  The problem was, the main painting was valued at an estimated $100 million and was considered the prize painting by an Austrian artist in the eyes of the Austrian government.

One of the ironies of the story is that this great Austrian painting so valued by the Austrians, is of a Jewish woman.  But her name was removed and the painting was called  Woman in Gold.

Because I'd been hearing about the lawsuit, when the movie was released in 2015, we immediately went to see it in Anchorage.  At that time, we were flying monthly to visit my mom who was then 93 and pretty much bedridden.  I really wanted her to see the film, but taking her to a theater would have been a real production.  

I'd been hearing about how good Netflix was and googled "Netflix, Woman in Gold" and got a page which suggested we could watch it there.  So that was when I signed up for Netflix.  But then when I searched for Woman in Gold, they didn't actually have it.  My initial experience with Netflix wasn't a good one.

However, there are other modern German language films which my mother and I did enjoy watching together on Netflix.  She died that July never having gotten to see this major film about someone who knew and whose story she had followed for years.  

I'd note another connection in the film.  The attorney Maria Altman engaged for this battle was  the grandson of Arnold Schoenberg the giant of 20th Century classical music..  Arnold Schoenberg had been a guest in Altman's family home in Vienna before he too fled to the United States and California.  My mother also knew this family, though she ever met Arnold.  My understanding is that they were either relatives or close friends of Melanie Swinburg who had been a stage actress in Vienna.  I knew her well because she became the baby nurse of my younger brother and remained a close family friend until her death.  Her crypt is with my family's in LA, next to my brother's, who died in an accident at the age of 23.  

So this film has lots of family connections as well as parallel family experiences, though Altman's family was fabulously wealthy in Vienna and my mother's father owned a modest men's clothing store in Dortmund, Germany.  

So when I saw that Woman in Gold was finally playing on Netflix this week, we watched it.  It was a very emotional experience for me for all the reasons mentioned above.  Plus Helen Mirren who plays Maria Altman looks and sounds like lots of women I knew growing up. And I'm a sucker for stories of great injustice being righted.  And, of course, I was sad again that my mother couldn't watch this film with us.  

One final example of how the film spoke to me - a more tangible one.  As a child, my parents would read to me, and translate from,  Struwwelpeter, a book with tales of very 'bōse' (something between naughty, wicked, and evil) little boys.  

The cover story is one I remember well - the boy who never cut his hair or fingernails.  The consequences for these behaviors was grim and perhaps tells us something about the German psyche.  For instance, the boy who sucks his thumb and is forbidden to suck it again, of course sucks it as soon as he is alone.  And it gets cut off with giant shears and blood dripping.  

I had a strange affection for this book.  If the intent was to scare little children into obeying their parents, it didn't work on me.  

At one point in the movie, when Mrs. Altman, at her  small home,  is trying to persuade Randy Schoenberg to take her case, he sees a copy of Struwwelpeter and picks it and tells her that he too was read the stories as a child.  

I'd brought the family copy of the book back from my mom's house last time we were there.

So, I'd recommend folks watch Woman In Gold if they have Netflix.  (Or if they find it elsewhere.)  

The scenes of the Nazis publicly  humiliating and beating Jews, breaking into their houses and stealing all their valuables, is a reminder  of what could happen here if Republicans don't let go of their obeisance to Trump and his calls for attacking those they disagree with. And if voters don't come out in droves to overcome the GOP gerrymandering and voter suppression.  The mob that broke into the Capitol and tried to overthrow the election doesn't look that different from the Austrian citizens we see.  Well, actually the Austrians look rather reserved in comparison.  

Vicariously Biking Through Turkey

The last two summers I've set a goal - a mental trip - that would keep me biking all summer.  Two years ago it was from Santiago, Chile to Conception, Chile.  Last year it was Chiengmai, Thailand to Bangkok.  This post from last summer tells you how I came up with this scheme and little bit about the previous two years.

The Chilean ride was 650 kilometers (403 miles).  The Thai trip was 750 (466 miles).  

This summer I chose Istanbul, Turkey to the Cappadocia region of Turkey.  Playing with google maps and some city-to-city maps, I calculated that as 750 k again.  Why Turkey?  It's the last travel destination that I'd like to get to.  When I was a student in Germany in the 1960s, as I hitch-hiked through Greece, I decided I'd pass on Istanbul and come back another time.  I made that same kind of promise about the Taj Mahal, but I've since gotten to see that exquisite structure.  

Yesterday I got over 500 kilometers and went to see whereabouts I am on a map of Turkey.  My original estimates were that I had gotten past Ankara.  But the map I pulled up was one I hadn't seen before and it was a terrific map!  It was somebodies bike ride from Istanbul to Cappadocia with the route in red.  And best of all, if you put the mouse anywhere on the route, it gave the distance.  It was set to miles, but I could change it to kilometers.

I've written in Ankara in red (in the middle) and the arrow shows about where I am now.  Of course, I'm doing most of this biking on Anchorage bike trails (though I did a little bit when I was on Bainbridge Island, but that's all hilly and mostly on routes shared with cars.)

You can go to the site - ride with GPS - and see how it shows the distance and other options like elevation and grade interactively along the route.

The difference in distance appears to be based on the route.  I originally did the main road from Istanbul to Ankara and the most direct route the rest of the way.  This cyclist  probably choose roads with less traffic that circles around Ankara and then dips further south before getting into Cappadocia.  I'm not worrying about that.  I'm still aiming for my 750 kilometers before the snow flies.  If I get there with time to spare, I'll keep going.  

The nearest town appears to be Polatli.  Here's a bit of what Wikipedia says:

"Polatlı is one of the most productive agricultural districts in Turkey and is best known for its cereal production, especially barley and wheat. Polatlı is one of Turkey's largest grain stores. Sugar beet, melon and onion are also grown."

Here's the nicest picture I found of the area online from alchetron.com.

And what I'm actually seeing is more like this:

Not bad either.  

Thank You Vin Scully For Making The World A Better Place

Before the Dodgers moved to Los Angeles in 1958, my dad and I would root for the Hollywood Stars, a Pittsburgh farm team, at Gilmore Field in Los Angeles, near the Pan Pacific and Farmers Market.  My dad was a very amateur artist and this picture of Gilmore Field was a birthday present the year the Dodgers moved to LA.

From then on it was the Coliseum to watch the Dodgers, and later Dodger Stadium*.  But most times it was Vin Scully over the radio.  I knew I enjoyed listening to him call the game.  He knew all the players' stats, stories of their personal lives, their training, and lots of other baseball trivia,  that he would weave together to make listening to a baseball game on the radio exciting.  And there was that voice.  He was like a family friend.   Many nights I had my radio under the cover to hear the end of the game when it was supposed to be off. And if you went to the game you would hear his voice echoing from transistor radios all around you.  

What I didn't know at the time was how special he was.  That came over the years as I grew up and moved off.  I'd come back and Vin Scully was still doing Dodger play-by-play.  And he was at it, it seemed, forever.  A part of my history kept alive by that voice calling plays.  Even my grandson has heard Vin Scully calling Dodger games live.

So thanks Vin Scully.  You enriched my life and millions of others for so many, many years.  

My main Scully years were all radio and I tried to find some audio to post here, but here's a complication of Scully calling different games on television.  Best I can do for now.  

*The story of Dodger Stadium is not one to be proud of.  It involved the displacement of an important community of Mexican-Americans near downtown LA.  

Repost: I Think Scalia's Originalism Is Like Intelligent Design Of Constitutional Theories

Given how the Supreme Court has moved front and center in the debate on the future of democracy in the United States, I've been posting some old blog posts about the Constitution.  I've tried to put key points into a bigger context than we see on Twitter or in mainstream journalism.  

Here, I take a critical look at the idea of Originalism.  The previous two posts were put up in 2009.  This one in 2016.  Maybe now people will read these with more interest.  

February 25, 2016

When Scalia died, I realized that I hadn’t seriously examined his ‘originalist’ theory for interpreting the constitution. I knew that he was outspoken, that I disagreed with the most publicized decisions, but also that he was a good off-the-court friend of Ruth Bader Ginsburg, so there had to be more depth than I was seeing.

I was inspired in part by the way Scalia and Ginsburg, so very different in their understanding of the cases which impacted their interpretation of the constitution, liked each other and spent time together outside of the Court.  From an NPR piece:

"They liked to fight things out in good spirit — in fair spirit — not the way we see debates these days on television," NPR's Nina Totenberg recalled on the NPR Politics Podcast. And Ginsburg admitted once that Scalia made her better. One night last year when the two justices appeared onstage for an interview together in Washington, D.C., Ginsburg talked about a time when Scalia showed her his dissenting opinion in a case before she had finished the majority opinion. "I took this dissent, this very spicy dissent and it absolutely ruined my weekend," Ginsburg said. She made some tweaks to her own argument.   [emphasis added]

So I started a blog post looking up ‘originalist’ theory. I thought that while I was inclined to be skeptical, I ought to at least look at it more seriously. I did. I’d like to present here what I’ve found.

Overview of Conclusion

For those who scan posts in 60 seconds or less - my conclusion is that ‘originalism’ has, as one writer put it, good PR, but basically it’s just old wine in a new bottle.  Like creationism, the old strict constructionist theories of law had been abandoned.  This allowed judges to deal with the many kinds of ambiguities in the law, such as conflicting laws, unclear language, situations unanticipated by the law, etc.  A number of canons developed over the years to help judges deal with statutory interpretation. 

In my, albeit brief, review of originalism, I think, at this point, that originalism is something like Intelligent Design which came into being as a religious alternative to evolution, one that smells suspiciously like creationism, but packaged in what its authors hoped would be a more palatable package.   Furthermore originalism has the public relations value of sounding like its fidelity to the constitution is greater than living constitutional theories. 


Ginsburg’s approach, living constitutionalism, follows the traditions of case law to find ways to deal with inconsistencies in law, generalities in the constitution, and modern situations unanticipated by the constitution.  It isn't simply the bias of the judge substituted for the constitution.  Rather, when  the text of the constitution isn't adequate to resolve a case, a judge then uses other long standing practices to resolve the conflicts and determine a decision that is consistent with the constitution.   Living constitutionalists at least acknowledges that it breathes new life into the constitution in order to deal with situations that weren’t and couldn’t have been anticipated 200 years ago when the constitution was written.


 Scalia’s faction, on the other hand, makes a pretense that it is adhering to the real original meaning of the constitution.   I’m left with the conclusion that this originalist claim to some sort of constitutional authenticity is hollow. 

The rest of this post explains why I believe that. I’m not claiming to be a constitutional scholar or to have read all the articles on this, but I’ve read enough that I’m seeing the same arguments repeated, or I’m seeing very esoteric stuff, that may have some relevance to finer points, but doesn't seem to shed light on the basic conflicts. 

Looking At Originalism

There's no way I can go into all the intricacies in a relatively short blog post.  You can read a bit more here  for a fairly light overview (with an unfortunate don't-worry-about-it, all's-well-that-ends-well conclusion).  Originalism is a variation of what used to be called 'strict interpretation' theory which argued that one must read the law strictly and follow what it says.  My administrative law book in the 1970s dismissed this view of the law as hopelessly unusable because

• there were often conflicting laws and you had to have a rationale for picking one over the other; 
• the law may be unclear or insufficiently detailed for a particular situation
• situations arise which the law didn't not anticipate.  Not only would this include absurd outcomes, but also situations resulting from new technologies not anticipated when the law was written.

Even Scalia removed himself from this extreme position (from Wikipedia):

"Antonin Scalia, the justice most identified with the term, once wrote: "I am not a strict constructionist, and no one ought to be", calling the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute". Scalia summarized his textualist approach as follows: 'A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.'"

And who judges reasonable here?

To get more details on originalism and reasonableness, you can see the Wikipedia overview.  It's not the final word (nothing really is) but it gives us a sense of the concept.  And as you read it, you'll see that originalists aren't all of one mind.  For instance

The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.

Understanding the mindset of a reasonable person of the late 1780s in the newly independent, but not yet united, colonies is a tricky feat.  Imagining what people thought and understood over 200 years ago is no easier than understanding the people who live in a foreign country today.  That doesn't stop people with little or no knowledge of, say, Afghanistan expounding on what the US should do there anymore than it stops jurists with perhaps a better reading of the 1780's, but no real deep understanding of the mindset of the time.

Furthermore, then, like now, reasonable persons had different beliefs.  (Imagine someone two hundred years hence choosing the reasonable person who would represent today's United States.)  Those who mattered back then were basically white, male, Protestant, landowners. (One delegate from Maryland was Catholic.)  From their view, women rightly needed their husbands'  approval to make most important decisions.  Indians were savages.  Blacks were a lesser form of human, whom their new constitution allowed to be owned by white slaveowners.   Is that really the view that Supreme Court justices today should use to interpret the constitution?

When I wrote that, I was aware that I was extrapolating from some brief overviews and knew that I hadn't read any of the scholarly articles on the subject.  Others might well have addressed my concerns.  So I googled  "definition of reasonable person for originalists."

I found this 2014 BYU Journal of Public Law article by Stephen M. Feldman which shows my thoughts are pretty close to the mark (at least his mark), though the author finds lots more that suggests that those reasonable persons back then would have used far more than the constitution and a 'the reasonable man' to make a decision.

Early judicial opinions and legal treatises reveal an eclectic or pluralist approach to constitutional interpretation; no single interpretive method dominated. Early judges and scholars invoked not only reason, but also the text, constitutional structure, framers’ intentions, original public meaning, and so on. Yet, no judge or scholar maintained that constitutional meaning should be ascertained pursuant to a reasonable-man standard."

And Feldman's comments about the difficulty of understanding the context of the time are similar to what I wrote above:

"The contexts and the contingencies engender, for a historian, the sub-texts, the layers of underlying meaning. But originalists disregard context, contingency, and subtext. Originalists, that is, use history without a “historicist sensibility” or historical understanding. (p. 299)
They want to find a fixed objective meaning when a historical text, such as the Constitution—especially, the Constitution, which forged a nation in a political crucible—is roiling with subtexts." 

And his comments about which reasonable person one would choose are also similar to what I wrote above:

"How did people relate to and interact with others? With family members? With strangers? How did people work? Were they subsistence farmers or involved in commercial transactions? How were they educated? Were they literate? How important were religious beliefs? How about gender and race? Should the researcher limit the investigation to white Protestant propertied males because they were the primary voters? With so many variables—and there are many others—the assiduous researcher would probably conclude that founding-era people were too diverse to be reduced into a hypothetical reasonable person."   (p. 302)]

But if we are going to choose a reasonable man of the period, who better to use than Thomas Jefferson?  Reading critiques of 'originalism' I came across comments he made that are directly relevant here and are called "the Jefferson problem" with originalism.  This is from Society for US Intellectual History (S-USIH):

"In September 1789 Thomas Jefferson wrote to James Madison from Paris that “the question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water.” In making his own answer, Jefferson famously declared that “the earth belongs in usufruct to the living,” that “by the law of nature, one generation is to another as one independant nation to another,” and furthermore that “no society can make a perpetual constitution, or even a perpetual law… Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.'”

Feldman's whole article tends to show much of the originalist 'theory' to be superficial and non-factual.  And he quotes others who see the whole idea of originalist theory as a fiction that allowed for a wide leeway of interpretation.

"In the words of the legal historian Saul Cornell, reasonable-person originalism turns “constitutional interpretation into an act of historical ventriloquism.”   The reasonable person is a dummy who speaks words uttered by the originalist scholar or judge."

[Feb. 25, 1:30pm AKTime:  I did some edits here to remove some accidental repetition.]

Conclusions 

The variations of living constitutionalists don't nail any specific one best way to interpret the constitution.  But they do assume that the framers intended the constitution to be a living document to be interpreted in the context of the times. Surely the fact that the framers created a process to amend the constitution suggests they saw the need for changes as times changed.  Any concept, of course, can be misused by the person applying it.

But it seems that originalism has more built in contradictions than living constitutionalism, which acknowledges that it must fill in where the constitution leaves off.  It's very difficult, for example,  to figure out how, theoretically, an originalist deals with, say, both the document ratified in 1788 which considered slaves as 2/3 of a man for purposes of determining population and gave them no rights, and with the 14th Amendment adopted in 1868.   When they consider the reasonable man of 1788, do they simply cut out that part of his mind that allowed for slaves in 1788 and leave the rest intact?

Is my title metaphor too strong?  Perhaps.  Intelligent design is a religious take on life on earth as opposed to the science of evolution.  Originalism isn't that removed from living constitutionalism.  But the metaphor works, when we think about originalism as a warmed over version of strict constructionism with better public relations as a way to push a philosophy that conservatives believe will work better for them.  The fiction parts include that it  a) is more true to the constitution and b) doesn't allow for bias to color decisions. 



I've been writing, reading, cutting, and pasting, more reading, talking to folks, and I realize this post could go on forever.   As much as I'd like this to be a complete overview with a neatly proven conclusion, this is not a law review, and most of my readers will never get as far as this sentence.   And there is much I haven't read where some of what I say is already said, or corrected.  Think of this more as working notes.  I hope readers who see problems point them out and their sources.

There's lots more to cover in this topic.  I'm going to cut and paste the left overs and if time allows and the spirit is willing, I'll go further in future posts.  I'd like to look at living constitutionalism in more detail and criticisms of it.  I'd also like to look at some cases where Scalia reveals that despite originalism, he himself seems to be susceptible to substituting his bias for the constitution, such as Bush v. Gore.  And I'd also like to pursue a bigger question:  how does an individual decide which constitutional philosophy is best?  Is there some objective 'best?'  Or are there simply different approaches and there is no foolproof way to pick one? That all contain their own strengths and weaknesses?  And, is originalism a sincere effort to better interpret the constitution or was it designed as a cover to move American legal decisions to the right?  And I realize that it needn't be an either/or question.  It could be both. 

Spinning the Supreme Court 2 - Political Strategy Narratives

Saturday I put up Part 1 on Supreme Court Narratives.  Here's Part 2.  I posted these back in 2009 when people were debating the nomination of (now) Justice Sotomayor.  This post looks at ways Senators think about Supreme Court nominees.  It certainly does discuss (I was outlining options, not predicting which would be taken) where the Republican Party has taking things.  

I think it is relevant today, to put these issues into context.  I'd note this one references a Part 3 about narratives on race.  While I have posts to talk about narratives of race, I can't seem to find one that fits as Part 3 in this series.  But I have a couple more that look at Originalism that are worth looking at again and will repost a couple of those.  

Tuesday, June 09, 2009

Spinning the Supreme Court 2 - Political Strategy Narratives

Part 1 of this post first gave some background on what I mean by narrative and then looked at a few narratives about the Supreme Court nominees and judges. Part 3 will be about race narratives. So here is part 2. 

 Political Strategy Narratives 

 The Senate is divided between members of the majority party and members of the minority party. At present, the majority party is also the party of the President. We know the majority party will support the new nominee. So what is the proper role of the minority party here? Some possible narratives: 

 1.  Affirm any candidate who meets basic standards. This would call for the Republicans today to weigh Sotomayor's qualifications and confirm her nomination as long as she proves to be legally competent at some more than minimal level and if she appears to be reasonably close to the mainstream in her ideology. 

Of course, as we mentioned in Part 1, people have different narratives about what fits in the mainstream. For some, a Democratic Hispanic will never fit in. Some might add, "Just as a Republican African-American was suspect to Democrats." 

But, to switch narratives once again, if an African-American or Hispanic adds life experiences and differently nuanced narratives which enlarge the court's ability to comprehend a situation in a court case (In Part 3 I'll give an example of when Justice Thomas apparently affected a decision when he talked about the meaning of cross burning*), then it makes sense to add, all other things being equal, an African-American or Hispanic whose expressed world view is consistent with the group he or she 'represents.'  [*UPDATE 2022: Not sure I ever did Part 3.]

 I also agree that such a position gets me pretty close to stereotyping and prejudging people, not as individuals, but as interchangeable members of a group. "Give me one African-American, please, to add a little balance to the court. Now, how about another woman." But, I would also argue that to ignore race and the impact of past discrimination is to ignore the facts of American culture. (Recall, please, how white and black Americans differed in their reaction to the OJ Simpson case.) Bumper stickers - even blackboards - appealing as they might be, aren't big enough to express the complexities of the world in which we live. 

So let's move on to narrative number 2, recognizing how the simplicity of each of these narratives can be deceiving. 

 2.  Fight against everything the other side proposes. This could be the result of people who see themselves as part of a team (party, ideology, cause) that is smaller than the people of the United States as a whole and who see the world as a zero-sum game. They are inclined to competition, no matter the odds. 

In this situation the opposition fights everything the administration proposes simply because it is the administration’s proposal. There are variations on this narrative. 

a.  Battle for the sake of battle. I had a boss once who told me that his son said he was too competitive and then he proceeded to tell me that he does like to make everything a contest. He simply likes to compete and to win. And I finally understood why everything with him had to be a battle. Not my style, but there are plenty of people like that out there. 

b.  Ideology. There are also politicians who are on an ideological crusade. Anything that appears from their charged up perspective as not going in their ideological direction must be attacked. They see themselves as fighting the good fight. Even if they lose, they stood up for their beliefs. 

c.  Zero-Sum game. There are politicians who see everything as us v. them (rather than, say, we are all for bettering the US). So any victory for the other party is seen as a loss for oneself. This is known as a zero-sum game by game theorists. What the other person wins, I lose. So everything must be fought tooth and nail. 

Clearly, these three can overlap - and they overlap with next one - but I'm just trying to identify different narratives that play a role here. They are generally only so distinct in the abstract. In real situations they are all intertwined, and harder to see. 

One narrative that explains why things have gotten this contentious blames the creation of safe Republican and Democratic seats, where the real election takes place in the primaries. This causes candidates to pander to the more extreme members of their parties, thus producing a far more extreme and less willing to negotiate Congress than we had, say, during the Watergate hearings. During those hearings, which I listened to live on television and radio, while Republicans made sure Democrats didn't abuse their power, they didn't defend the indefensible either. As Nixon's complicity became clear, rather than obstruct the whole proceedings as tends to happen today, they carried out their roles of calling their leader to account. Today, they would be more likely to fight to defend their own, right or wrong. 

2.  Ideological goals for the Supreme Court. This is slightly different from #1 in that these people see the position of a Supreme Court Justice as so important that, while they may be willing to cooperate on lesser issues, on this issue they will fight tooth and nail. Franklin Roosevelt even tried to enlarge the Supreme Court so he could appoint new, friendlier justices. 

But Republicans have taken this to a new level. In a dominant liberal narrative, they have decided that the way to get things they feel important (overturning Roe v. Wade, prevent any attempt at gun-control, etc.) they've decided on their own version of court packing. 

In a March/April 2009 Washington Monthly piece, Rachel Morris outlines this narrative about how the Federalist Society helped the Republicans develop a supply of attorneys and an ideology to fight what they saw as liberal dominance in the law.

However, it was only when Edwin Meese became attorney general in 1985 that things really began to change. . . He brought in a cadre of loyal and experienced senior staffers, and directed them to recruit smart, young, conservative lawyers in order to set them on the path to the judiciary or higher office. Thanks to the Federalist Society, his officials now had a one-stop shop for promising candidates, and they hired many of its members. When they found lawyers with senior leadership potential who lacked previous government experience, they brought them on as special assistants or advisers so that in a few years they could be assistant attorneys general. In the short term, this helped Meese gain control of the bureaucracy, but he was also planting seeds for the years ahead. One of the many lawyers he cultivated was Samuel Alito. Meese promoted the thirty-five-year-old to deputy assistant attorney general in 1985, after Alito impressed him with his work on a strategy to eviscerate Roe. 

Meese’s second innovation was ideological. He wanted to keep his young staffers motivated, and create the intellectual conditions in which conservatism could thrive. His DOJ held regular seminars and lunchtime discussions—John Roberts, then at the White House Counsel’s office, also attended these gatherings. Meese asked a group of department lawyers to craft detailed constitutional arguments for the movement’s legal agenda, which remains the same today: outlawing abortion, ending affirmative action, protecting the death penalty, restricting government regulation, and expanding presidential power. 

In particular, Meese was determined to elevate the status of originalism, the notion that the Constitution should be understood as its authors wrote it. Championed by the Yale law professor Robert Bork, originalism enjoyed a small academic following, but Meese believed it could provide the intellectual fuel for Reagan’s goals. On the surface, it sounded nonpartisan, and there was something deceptively intuitive about it: surely judges are supposed to confine themselves to the strict meaning of the constitutional text. However, originalists tended to be selective about the norms they invoked from the Founders, and their selections usually overlapped with conservative goals—prohibiting abortion, or returning to an era of a smaller federal government. (Antonin Scalia, for instance, defends the death penalty on the grounds that it was clearly acceptable when the Constitution was written, yet he admits that it is not okay to flog people, a punishment also tolerated at the time. He also says that he would have signed on to Brown v. Board of Education, although there is no originalist way to reach it.) [Originalism sounds to me a bit like Fundamentalism.]

Meese saw that originalism could do more than just rationalize conservative policy positions. It provided a justification for overturning decisions that conservatives didn’t like, because the Constitution, not accumulated precedent, was meant to be the judge’s only guide. Most important, it represented a direct assault on the "Living Constitution"—the idea that the Constitution should be interpreted according to the evolving values of the times—which underpinned the major liberal victories of the Warren Court. 

She further asserts that,

... the movement won another, more enduring victory during this period, by significantly constraining the types of liberal judges Bill Clinton could appoint. Continuing the public conversation that Meese started, conservative lawyers outside the government painted many of Clinton’s nominees as liberal extremists who were unfit for the courts. Federalist Society lawyers on the Republican staff of the Senate Judiciary threw procedural obstacles in the way. In the end, they blocked votes on more than sixty of Clinton’s nominees to the federal courts (one was Elena Kagan, the new solicitor general), and ensured that his Supreme Court appointments were moderates.

So, a judge without an ideological ax to grind, would have a voting record that wouldn't favor one particular class or group or issue consistently. Such a judge would simply weigh the facts against the law and Constitution. Perhaps in one case that judge would find for a corporation and in another case for a union or a consumer group against a corporation. After all, the corporations or the unions can't be right in every case that comes before the supreme court, can they? 

But a judge with an ideological view would find some way to interpret the law so that the decisions tend to fall for the judge's favored groups. I

In a May 25, 2009 New Yorker article, Jeffrey Toobin writes that:

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

You can see narratives within narratives within narratives. As George Lakoff pointed out, Republicans had become much better at framing issues (creating narratives with which voters could connect) than Democrats. 

Listening to politicians talk, keeping track of the narratives being used is a little like watching the nuts being switched around and trying to keep of track of which one is covering the pea. I

I'll put up Part 3 which will discuss Narratives of Race in the near future. [Update August 1, 2022:  As I repost these, I can't seem to find Part 3.  I have some posts on how race is characterized, but nothing with the planned title.  So don't look for Part 3, but if you do and you find it, let me know.]

Supreme Court Posts Still Very Relevant: Spinning the Supreme Court 1 - Narratives About the Court

 I started a blog post that was a quiz about the Constitution.  At the bottom I was going to link to some older posts about the Supreme Court and the Constitution.  But first I checked the links.  The posts are quite good and give deeper context to the current (and past) debates about the Supreme Court.  Even if you've read these before, they are worth reading again. (I actually wrote these and still find them worth reviewing.)  Since they are longish, I'll do them one at a time.  And no, this isn't just an easy way to put up content on the blog.  I think this post, for example, did a pretty good job of foreseeing things that have come to pass and thus are worth reading again.  

This first one was posted on June 6, 2009!  It looks at what all underlies the debates about Senate approval of Supreme Court nominees. 

June 6, 2009

Spinning the Supreme Court 1 - Narratives About the Court

[This is Part 1 of three posts on the narratives surrounding a Supreme Court nomination.  Part 2 will be on narratives about political strategy and Part 3 will be narratives about race.]

We generally understand Winston Churchill's  “History is written by the victors” to mean that those who prevail, get to select which facts to highlight and how to interpret them as they tell the story of how they (now 'the good') defeated 'the evil ones.'

But who is writing the present? Well, everyone is trying. We are all competing to have our narratives accepted as official reality.

In most situations, there are an enormous number of facts and a smaller number of competing narratives (or theories or stories or interpretations) which try to organize and explain the facts. The difficulty is in figuring out which of the facts are significant and which of the narratives best fit the facts. Our inclination is to make the facts fit our own favored narratives (the stories we want to believe) rather than finding or creating narratives that more accurately explain the facts. When politicians do this - try to create the right narrative for political gain - we call it framing or spin.


So, what are the narratives around the appointment of a Supreme Court Justice these days? In our heads are all the stories we've ever heard or thought of. Outside our skulls is the world where things are happening. We talk about 'facts' as though they are 'true' events. But who filters the facts before we get them? Obviously, events we don't witness first hand, are filtered by others - friends, family, news media, bloggers, etc. And even events we witness are filtered by our brains. Physically we can't take in and record every fact we witness. (Can you describe exactly what the last person you spoke to was wearing, down to the buttons?) And those stories in our heads I mentioned above also filter in and filter out what we think is important. (The buttons probably weren't important and not special enough to have attracted your attention.)

So how do we swim through all the facts and all the spin to find the narratives that most closely mimic what's happening outside of our heads? The best way I know, and it is inadequate, is to try to become conscious of the narratives. Usually they are working without us paying any attention, like doormen deciding which facts and ideas can come in and which can't. So, if you try to be conscious of the narratives you and others are using, then you take a giant step forward in figuring out what is happening.

So what narratives are being used concerning the decision to select and then approve of a Supreme Court Justice?


Constitutional Narrative

The US Constitution, Article II, Section 2 says:

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [emphasis added]

Supreme Court Justice Narratives

Here's the generic narrative of a Supreme Court nominee we tend to learn in school:

The President will nominate someone who has performed exceptionally well in the field of law AND whose political leanings, while aligned with those of the president, are also not too distant from those of the population. 

Bonnie Goodman at HNN offers an example of the second part of this narrative in regard to Ruth Bader Ginsburg's confirmation hearings:

Sen. William Cohen (R-Maine) stated bluntly that the nominee's ideology was rightly a matter of concern. But Cohen suggested during the hearings that judicial ideology should be used only to determine if the nominee's philosophy is "so extreme that it might call into question the usual confirmation prerequisites of competency and judicial temperament." [emphasis added]

This issue of 'so extreme' in modern times came up with the nomination of Robert Bork. One narrative says that Democrats made judicial ideology an issue by rejecting Bork. A counter narrative says Republicans made it an issue by nominating a candidate whose ideology was so extreme. (Of course, saying that he was extreme is also a narrative, an interpretation of the facts.)

As you can see this is already getting tricky. How do we know what's extreme? We do have opinion polls, but the law isn't about voting and popularity. The Constitution is supposed to protect the basic rights of all humans even if the majority doesn't support them. Judges are supposed to decide based on the law, even if the decision isn't popular. They get lifetime appointments so they can resist pressures to vote a certain way.

It would seem pretty simple to interpret "he shall nominate, and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court," but we're already finding problems. "Advice and consent" seems pretty straightforward. The President did talk to lots of Senators before nominating Ms. Sotomayor and soon they will be able to consent or not. But what is an appropriate basis for that consent?

That gets us back to the statement above about legal competence and political leanings. While we could debate all this, I won't spend much time on legal competence. That seems the easiest, though, if someone didn't go to Yale or Harvard, can they fit the prevailing narratives of "legally competent"? What about someone who hasn't been a judge already? Etc.

If judges are supposed to make decisions based on the law, why even mention political leanings? Well, because the President and the Senate are all politicians and because the Supreme Court is the third branch of the government. The judges aren't elected, but they are appointed and approved by elected officials. So we have to consider politics.

And also, 'political leanings' is another way to allude to the kinds of narratives people have in their heads. These political leanings are predispositions to consider some things more important than others - the right to own a gun as more important than the possibility of misusing the gun, or upholding international law about torture as more important than potential security risks.

Above I offered a generic narrative of a supreme court nominee. Let's expand that now from just the nominee's characteristics to how the nominee should behave if approved.


There are two well articulated narratives about how a Supreme Court Justice should behave.  Wikipedia, in a post on Judicial Activism offers: [The Wikipedia entry since 2009 appears to have changed quite a bit.  This is from the 2009 version and you can see the newer stuff at the link if you wish.]

Judicial activism is a philosophy advocating that judges should reach beyond the United States Constitution to achieve results that are consistent with contemporary conditions and values. Most often, it is associated with (modern) liberalism that believes in broad interpretation of the Constitution which can then be applied to specific issues.

Judicial restraint is the counterpart to judicial activism and is advocated by thsoe [sic] who believe that democracy will thrive if judges defer to the democratic process and stay out of policy debates. So, judicial activism is not necessarily an ideological concept. Some trace the history of judicial activism back to the loose constructionist approach of Alexander Hamilton, who believed that broad wording of the Constitution was meant to enable, not inhibit, various government actions.[1]

But this Wikipedia article is marked with warnings such as:

• Its neutrality is disputed. Tagged since December 2008.
• Its neutrality or factuality may be compromised by weasel words. Tagged since November 2007.
• It is in need of attention from an expert on the subject. WikiProject Law or the Law Portal may be able to help recruit one. Tagged since May 2009.
• It may contain inappropriate or misinterpreted citations which do not verify the text. Tagged since December 2008.

So we even have to consider that Wikipedia entries are also influenced by the narratives of their writers.

Adam Cohen, in a recent NY Times editorial, uses Britain's Supreme Court of Justice's decision that a Pringle is indeed a potato chip (and thus Proctor & Gamble owes $160 million in taxes) to give his own interpretation of activist judges:

Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like “free speech” or “due process” — or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like “the right to bear arms.”

(Note that Cohen calls conservatives "strict constructionists" a term that seems more radical than Wikipedia's term "Judicial Restraint.")

(If someone were really a strict constructionist, could one argue that since the Constitution says "he" for President, that women can't be President?)

Let's try again for a narrative about a good nominee:

The nominee would be a person who would assume office with the goal of interpreting cases according to the law. Where the law is not completely clear, there will be some interpretation that is influenced by the new justice's life experiences. Candidates should not be coming to the court with the goal to change the direction of the court and the law. However, some cases raise issues not clearly addressed by the law or the Constitution. New technology raises questions that were often not addressed by the Constitution. Judges then must interpret how the words of the Constitution should be applied to, say, surveillance of email. Essentially new law must be created.

My 'neutral' (some might dispute its neutrality) narrative above tends to say that when possible (if the laws and Constitution are clear about the situation in the case before the court), judges should practice judicial restraint. But when the case isn't clear cut, they will need to be a bit activist. They will be required to use their own narratives, to interpret the law or Constitution. Of course if all the justices have the same narratives, they will come to similar conclusions.

And with eight males and one female, to the extent that males and females experience the world differently, we can see that female (slightly over half the US population is female) narratives are somewhat lacking on the Supreme Court.

I'm not an attorney. I don't claim any special expertise in this process of choosing a Supreme Court Justice. But I did want to step back a bit from the rhetoric and focus on the narratives that are being used in the hope that others might begin more easily to recognize them for what they are: interpretations of reality, but NOT reality.

In Part 2 I'll look at narratives about political strategies for approving or rejecting Supreme Court nominees, which will include how actors use narratives to support and oppose candidates. In Part 3 I'll look at narratives around race and Supreme Court nominees.