Posts Tagged ‘Brett Kavanaugh’

DEMOCRACY’S NOT DEAD YET

Several nights ago, I heard a symphony of foghorns. I live two miles from the Pacific and half that distance from San Francisco’s Baker Beach and the Golden Gate. Yet extended periods of time often pass between my visits to the beach to admire the ocean’s size, energy and mystery.

So it is with much in life. Beauty and wonder often are much closer than we realize. Politics, war and disasters—natural and man-made—attract our attention. We close our eyes and minds to the good that also surrounds us.

Another matter relates. Tomorrow (Saturday) night, Jews will celebrate Simchat Torah (Joy of the Torah). Then or on Sunday, synagogues will unroll a Torah scroll and read the last verses of the year’s final portion, V’zot HaB’rachah(And This is the Blessing), which concludes with Moses’ death. Without a pause, reading will continue with the first verses of B’reishit(Genesis) with which the Torah starts, presenting creation and life.

Why read the same text year after year? The scholar Jeffrey Tigay explains that we find new insights on every page (as we might at the beach or in a forest), “not because the Torah has changed, but because we have changed since we read it a year ago.”

Looking past immediate concerns, Americans can gain new perspectives on our present situation and our past—hear the call of the Liberty Bell too often drowned out by shouting. We may discover that the nation’s strengths outweigh its weaknesses.

I’m not wearing rose-colored glasses. As I write, I’m gazing at the cover of October’s The Atlantic. This special edition asks a disturbing question: “Is democracy dying?” Editor-in-chief Jeffrey Goldberg titles his introduction “The Crisis in Democracy.” A toxic brew of populism, tribalism, Donald Trump and technology worries a number of The Atlantic’s writers and contributors. Nothing new here. A recent edition of Foreign Affairsconsidered the same matter. The non-Fox media continue to do so.

Sure, there’s plenty of worry to go around. Witness the hyper-partisanship surrounding yesterday’s Senate testimony by Dr. Christine Blasey Ford and Supreme Court nominee Judge Brett Kavanagh. Yet America weathered previous storms.

White people enslaved black people. The Ku Kux Klan promoted racism and segregation not just in the South but all over the country. Universities and medical schools restricted Jewish matriculation. Women couldn’t vote until 1920. In the 1930s, upwards of thirty million Americans listened to Father Charles Coghlan’s anti-Semitic radio broadcasts. After Pearl Harbor, Franklin Roosevelt ordered the internment of Japanese-Americans. Throughout our history, the nation also suffered a series of economic depressions and, of course, 9/11.

Un-democratic, prejudicial laws and customs have always had strong proponents. Hence the secession of the Southern states leading to the Civil War, considerable opposition to women’s suffrage in Congress and later political maneuvering like Richard Nixon’s southern strategy. All these battered and bruised American democracy. We moved forward.

I’ll give the last word to New York Times columnist Roger Cohen, writing from Greece: “Democracy is stubborn. It raises our gaze. It is the system that best enshrines the unshakable human desire to be free. Athens reminds us of that. America reminds us of that. It fails. It falls short of John Winthrop’s ‘city upon a hill.’ It strives still to fail better.”

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SUPREME COMMON SENSE

Donald Trump nominated Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the Supreme Court. Republicans exulted. Democrats vowed a bitter fight against the nomination. Odds are, Judge Kavanaugh, who appears to embrace strict interpretation of the Constitution, will be seated. I hope he’ll bear in mind a 2010 Supreme Court decision and the common sense of two Torah portions.

Ten years ago, Citizens United, a non-profit corporation founded for the purpose of“restoring our government to citizens’ control” utilizing “a combination of education, advocacy, and grass roots organization,” sought to advertise a documentary film it produced critical of Hillary Clinton. Mrs. Clinton was running for the 2008 Democratic presidential nomination. The 2002 Bipartisan Campaign Reform Act (aka McCain-Feingold) restricted corporate-sponsored advocacy communications from naming a federal candidate 30 days before a primary election and 60 before a general election. Citizens United sued the Federal Election Commission, declaring a violation of its free-speech rights under the First Amendment. Citizens United insisted that it was merely presenting information about a candidate, not endorsing or opposing one.

The issue went to the Supreme Court where liberal justices would have upheld McCain-Feingold. During initial oral arguments, soon-to-retire Justice David Souter read aloud some of the film’s narrative: “She’ll lie about anything. She’s deceitful. She’s ruthless. Cunning. Dishonest.” He concluded, “That sounds to me like campaign advocacy.”

Chief Justice John Roberts asked for additional arguments addressing broader grounds. These were made three months following Souter’s retirement. The court voted 5-4 in favor of Citizens United. Justice Kennedy’s majority opinion referenced a lower court’s decision upholding banning books published or distributed by corporations or labor unions if they promoted or opposed a specific candidate. Banning books was un-American. Under the rubric of free speech, enormous sums of money from super PACs—political action committees—began flowing into election campaigns, though not to political parties.

There’s a strong difference between speechand reach. I point to Justice Souter’s post-retirement comments in 2012: “If I exercise my liberty to the greatest possible extent, I can suppress the rights of a lot of people.” Corporations and the wealthy can spend millions of dollars promoting their views. They enjoy reach—distribution—average Americans cannot match.

The court’s decision seems based on Originalism—interpreting the Constitution exactly as written. That’s difficult. The Constitution’s writers knew of newspapers and soap boxes but not television, the internet and social media. Lack of context and adaptability can make a travesty of justice.

Here I cite Torah (Bamidbar—Numbers). In the portion Pinchas(Phineas), the five daughters of Zelophechad, who died without a son make their case to Moses that they should inherit their father’s portion of land in Canaan. God assures Moses this is just. The laws of inheritance are amended. In Mattot(Tribes), the tribes of Reuben and Gad ask Moses permission to settle in the cattle country east of the Jordan River rather than in Canaan. This alters God’s plan, but Moses says they may do so after participating in Canaan’s conquest.

During this November’s mid-term Congressional elections, voters will be bombarded by messages spread via huge sums of corporate and individual money. Such communications will give their sponsors—usually unidentified—unequaled power to sway elections. Common sense tells me that free speech will not be served.

Many thanks to Ron Laupheimer, a retired lawyer, for clarifying some issues. I am not a lawyer or legal scholar but am exercising my right to free speech—even if my reach is limited—based on, well, common sense.

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