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A Troubling Supreme Court Nomination on the Anniversary of the 14th Amendment

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Friends of Padre Steve’s World,

Today was the 150th anniversary of the adoption of the 14th Amendment, that is something to celebrate because the amendment corrected one of the most glaring omissions from the Constitution that put it at odds with the very principles of the Declaration that “all men are created equal.” The amendment struck down the Dred Scott decision which denied that Blacks could ever be citizens and had no constitutional rights. Section One of the amendment stated:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the amendment which extended the promise of the Declaration first to Blacks and that would later be the basis of subsequent amendments and court decisions which extended those rights and that promise to other racial minorities as well as women and Gays. In that sense it is the amendment helped all Americans have a constitutional basis to have a chance to realize the revolutionary idea of the Declaration that “all men are created equal…” 

Tonight President Trump nominated Federal Appeals Judge  Brett Kavanaugh to the Supreme Court vacancy left by the resignation of Justice Anthony Kennedy. Since Kavanaugh was suggested as a favorite in the President’s nomination process I have taken the time to read a number of short biographical articles from a number of sources on Kavanaugh’s life, read a number of his legal opinions, decisions and an article on the Separation of Powers and Executive powers in a 2009 Article in the Minnesota Law Review. All that being said I don’t know exactly what he would decide from the Supreme Court even though if I look at his previous opinions from the bench and the Minnesota Law Review article give me pause to be concerned both about the protections of the 14th Amendment as well as the Constitutional separation of powers. The later is especially concerning in light of his remarks in the Minnesota Law Review review article that:

“Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.” The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”

He said this despite having served on the staff of Special Prosecutor Kenneth Starr during the investigation and impeachment of President Clinton and that he noted that the same article quoted above regarding the decision of the Supreme Court in Clinton v. Jones “that presidents are not constitutionally entitled to deferral of civil suits.”

I think this is the most important issue in regard to Kavanaugh’s nomination. Yes I know the concerns many have for so many other vital issues but I think this one is the most concerning and it overshadows every other potential decision that he could be the deciding vote on, for all of those issues because this is the only one that could allow the President to establish an authoritarian regime.

It is so because that the President who nominated him is himself embroiled in multiple civil proceedings as well as potential criminal charges. The latter are dependent on what Special Prosecutor Robert Muller uncovers in his investigation of the President and his campaign’s connection to Russian agents during and after the 2016 election. However, the number of guilty please, convictions, and indictments racked up by Muller are greater in a shorter time than any other special prosecutor, and they include some of the highest ranking and closest advisors to the President during and after the campaign. If the President can circumvent that and have his actions upheld by the Court it would be the end of the Republic and the other issues no matter how important would become moot because for the duration of his term the President would be above the law and it would take a two thirds majority of the Senate to convict him of crimes in an impeachment trial. Even if the Democrats gain a majority in the House and the Senate I cannot see 15 or 16 Republican Senators to join 51 or 52 Democrats voting to impeach.

Based on Judge Kavanaugh’s writings one has to wonder what he would do if moment of national crisis coincided with a civil trial, an indictment of the President, or his impeachment. That is a real concern, especially when the President talks about removing First Amendment protects from the press and frequently refers to his political opponents enemies of the people and proclaims that he is above the law. Would not the opinion of a Supreme Court Justice who has written that the President should at enjoy temporary exemption from civil suits or criminal prosecution while he is in office not endanger the Constitution and the Separation of Powers itself. That is certainly something that the Founders never intended, nor the authors of the 14th Amendment who actually ended up impeaching President Andrew Johnson for his dismissal of Secretary of War Edwin Stanton for not disregarding the authority of Congress in the matter of Reconstruction. Johnson’s actions were designed for him to use his power as Commander in Chief to ensure that the military did not comply with the laws of Congress.

The fact that the President has nominated a man who believes that a President should be above the law during his term in office is extremely troubling. If confirmed Kavanaugh may be the man who uses his position to end the Republic as we knew it by elevating the Executive to a level never intended by the Founders by judicial fiat. Senator Edward Kennedy rightly noted:

“The Supreme Court must serve as an independent check on abuses by the executive branch and the protector of our liberties, not a cheerleader for an imperial presidency.”

I am afraid that the elevation of Judge Kavanaugh to the Supreme Court along with Neil Gorsuch, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts could well become that cheerleader for an imperial presidency that knows no restraint and disrespects justice. President Trump advocates on a daily basis for an authoritarian presidency that does not respect the law, the Constitution, or the civil rights of most Americans.

So until tomorrow,

Peace

Padre Steve+

 

 

 

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By Then It Was Too Late: Reflections on a Supreme Court Retirement

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Friends of Padre Steve’s World,

In his book They Thought they Were Free Milton Mayer wrote of his conversation with a German university professor colleague after the Second World War:

“How is this to be avoided, among ordinary men, even highly educated ordinary men? Frankly, I do not know. I do not see, even now. Many, many times since it all happened I have pondered that pair of great maxims, Principiis obsta and Finem respice—‘Resist the beginnings’ and ‘Consider the end.’ But one must foresee the end in order to resist, or even see, the beginnings. One must foresee the end clearly and certainly and how is this to be done, by ordinary men or even by extraordinary men? Things might have. And everyone counts on that might.

“Your ‘little men,’ your Nazi friends, were not against National Socialism in principle. Men like me, who were, are the greater offenders, not because we knew better (that would be too much to say) but because we sensed better. Pastor Niemöller spoke for the thousands and thousands of men like me when he spoke (too modestly of himself) and said that, when the Nazis attacked the Communists, he was a little uneasy, but, after all, he was not a Communist, and so he did nothing; and then they attacked the Socialists, and he was a little uneasier, but, still, he was not a Socialist, and he did nothing; and then the schools, the press, the Jews, and so on, and he was always uneasier, but still he did nothing. And then they attacked the Church, and he was a Churchman, and he did something—but then it was too late.”

I feel that if we already haven’t reached to point of things being too late that we are not far from that point and we are closer now with the Justice Anthony Kennedy’s announcement of his retirement from the Supreme Court.

Kennedy announced his retirement yesterday after siding with so-called conservatives on President Trump’s Executive Order targeting Muslims primarily from Iran as supposed security threats. It was an ignominious exit from the Supreme Court for a man who though certainly conservative often acted as the conscience of the court who wrestled with difficult issues and sometimes sided with liberals such in the Obergfell v. Hodges case that at least for now legalized marriage equality.

The decision regarding the Executive Order overturned the decision of Korematsu v. United States which upheld the military orders to send Americans of Japanese descent to detention centers, what in were effect American Concentration Camps. JThat ruling along with Dred Scott and Plessy v. Ferguson is considered one of the most unjust in American history. Justice Robert Jackson who later presided as the organizer and chief prosecutor at the Nuremberg War Crimes Trials wrote in dissent of that ruling:

“A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.” 

That is the danger of the Executive Order that the Court upheld. Justice Roberts used the twisted logic of Korematsu to uphold the ruling even as he overturned Korematsu. Justice Kennedy concurred and then retired from the Court leaving a vacancy that will almost be certainly filled by a young, aggressive, and doctrinaire conservative of the new order, unrestrained by precedent or principle. Unless the Democrats go Full Bork Jacket and at least two Republicans grow a set of balls civil rights, civil liberties, and the Constitution are doomed.

The man that nominates Kennedy’s successor is even now under investigation for actions that could be considered by a reasonable person as treason against the United States. That man is the President and almost every day he uses power of his office to demonize any opposition and to dehumanize racial, ethnic, and religious minorities while attacking the freedoms enshrined in the Constitution to free speech and the freedom of the press by referring to his critics as “enemies of the people.” 

The President has invoked violence against his opponents since he was a candidate and then cries foul when political opponents urge non-violent resistance to include the public shaming of his staff members and Cabinet officials who plan (Stephen Miller), execute (Kirstjen Nielsen), and defend (Sarah Huckabee Sanders) his actions against helpless people who he labels as murderers, rapists, and criminals.

Sadly most are refugees from political and criminal persecution and violence in their countries, countries that since the 1840s Americans or the United States Government have treated as subhumans. What is happening now is the result of our past polcies coming home to roost.

Marine Corps Major General and two time Medal of Honor Recipient Smedley Butler wrote in his book War is a Racket:

“I spent 33 years and four months in active military service and during that period I spent most of my time as a high class muscle man for Big Business, for Wall Street and the bankers. In short, I was a racketeer, a gangster for capitalism. I helped make Mexico and especially Tampico safe for American oil interests in 1914. I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in. I helped in the raping of half a dozen Central American republics for the benefit of Wall Street. I helped purify Nicaragua for the International Banking House of Brown Brothers in 1902-1912. I brought light to the Dominican Republic for the American sugar interests in 1916. I helped make Honduras right for the American fruit companies in 1903. In China in 1927 I helped see to it that Standard Oil went on its way unmolested. Looking back on it, I might have given Al Capone a few hints. The best he could do was to operate his racket in three districts. I operated on three continents.”

Despite the fact that the United States has been interfering and exploiting their countries for almost two centuries they are criminals because they want to be free. Their crime is being refugees after the United States instituted race based immigration policies in the early 1900s. These policies were later used to deny Jews fleeing the Holocaust from coming to the United States.

Justice Kennedy left after a series of rulings which seemed to undermine his past judicious behavior on the bench. Maybe at 82 years old he simply decided to punt and place his vote in the column of men who gut the Voting Rights Act, support gerrymandered Congressional districts, and support Executive Orders that while refuting the notorious Supreme Court Decision of Korematsu v. United States used the same logic as that majority used to uphold the President’s third attempt at a travel ban directed a Muslims, primarily Iranians. Japanese Americans who suffered under the military orders enforced by civilian courts and upheld by Korematsu were appalled with good reason.

I am going to leave it there for the night.

Until tomorrow,

Peace

Padre Steve+

 

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Liberty & Those who Oppose It: the Aftermath of Obergfell v. Hodges

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Friends of Padre Steve’s World,

I rejoiced yesterday when majority of the Supreme Court ruled in favor of marriage equality throughout the country. I believe that this was an important continuation in or understanding of ever expanding liberty found in the Declaration of Independence that Abraham Lincoln said in 1854 was the standard maxim of free society …constantly spreading and deepening its influence,” ultimately applicable “to peoples of all colors everywhere.” 

Thomas Jefferson wrote a letter to Samuel Kercheval in 1816 that we should take to heart when we look at changes in laws that religious traditionalists oppose so vehemently:

“I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” 

When Justice Anthony Kennedy wrote the majority opinion in the case of Obergfell v. Hodges he made a comment that echoed the words of Thomas Jefferson when he wrote:

Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

In the aftermath of Obergfell v. Hodges these people are scrambling to carve out exemptions to the law in order to ensure that the prejudices ingrained in their “sincerely held religious belief” can remain. Of course for churches that is not an issue, churches can grant or deny the sacraments or ordinances of their faith to anyone they chose to and this they routinely do. If you desire to get married in a church you must follow the rules for that church, and the clergy of that church are free to deny sacraments, including marriage to anyone. If you are not a Roman Catholic in good standing you are not permitted to receive the Eucharist, you may not be married in the church, and other churches including many Baptists and other “free” churches have similar prohibitions that no court has dared to overturn. This even includes rules that discriminate against women who cannot be ordained clergy. So when I hear pastors screaming that somehow they will be prosecuted or jailed for refusing to marry gays I have to throw the bullshit flag.

Now this may not apply to the “ministers” who set up their own so called marriage chapels where unconnected to any church they operate as for profit businesses. Sometimes courts do find in favor of litigants in civil proceedings when such businesses use their prejudice to deny services to people, especially gays.

While I am a historian and should know better, I am amazed to see many American Christians doing all they can in the name of protecting their Religious Liberty to deny rights to those that they disapprove. I shouldn’t be surprised, Thomas Jefferson wrote of what happens when preachers and priests lead political movements. Jefferson so rightly noted:

“History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance, of which their civil as well as religious leaders will always avail themselves for their own purposes.”

James Madison, who crafted the Bill of Rights, including the First Amendment wrote:

“Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?”

Currently this is the case with the Republican Party, a party that I remind you that I belonged for over three decades, beginning with my work for the Ford campaign as a high school student. I left the GOP in 2008 after years of disillusionment, and lies when I returned from Iraq.

Barry Goldwater, a conservative if there ever was one, a man that would be driven out of today’s GOP spoke on the Senate floor in the early 1980s at the beginning of the Reagan Revolution and the commandeering of the party by politically minded preachers like Jerry Falwell, James Robertson, Dr. D. James Kennedy, James Dobson and of course our local Tidewater Taliban Mullah, Pat Robertson. Goldwater so wisely noted:

“Mark my word, if and when these preachers get control of the [Republican] party, and they’re sure trying to do so, it’s going to be a terrible damn problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can’t and won’t compromise. I know, I’ve tried to deal with them.”

Well, now the preachers have control of that party. Every declared candidate for the GOP presidential nomination kowtows to these religious leaders and nearly every one of them has come out to announce their opposition to the Supreme Court ruling.

Some are suggesting that thousands of preachers run for office in the GOP in order to foist their agenda on the rest of the population. Right now Conservative Christians for all intents and purposes run many state legislatures. In the ones that they have controlled for the past number of years they have been enacting all sorts of discriminatory laws against those they find offensive, and have attempted to shackle the study of science, history, and roll back voting rights for minorities.

This is particularly true of the conservative Christian, antipathy towards Gays, Lesbians and others in the LGBT community. In the past number of weeks I have seen proposed legislation in several states that would allow people to discriminate against anyone simply based on a sincerely held religious belief.

Other laws passed within the six moths at the state level in Arkansas and West Virginia to nullify any city or county ordinances banning discrimination against gays. In other words, religious zealots in control of state houses are imposing heir beliefs on cities, towns and counties that are more progressive in regard to the treatment of gays.

The irony is that the people who complain about Federal laws which trump state law are doing the same thing that they object to in order to ensure that citizens of their states are treated less than equal.

The target of these laws are gays and the LGBT community, but anyone with half a brain knows that once they are on the books they provide ample room for religious zealots of any kind to discriminate and even persecute those that they despise.

They may start with the gays, but be assured, those who pass these laws will extend them to apply to anyone to whom they believe harms or interferes with their sincerely held religious beliefs. Jefferson also noted “In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own.”

It is something that our founders wisely chose to avoid, not wanting this nation to become like the European nations whose state churches had denied rights, persecuted and killed those that they deemed heretical. While the proponents of these new laws to “protect” religious liberty claim that they are done with no intent to discriminate, there is only one reason to enact them, that to give legal protection to people who want to discriminate. Is this not what is happening throughout the Middle East as Islamic fundamentalists of various sects impose similar laws on Christians as well as others including Moslems of rival sects?

Now just imagine for one moment living in such a society, a society where someone who was not of the right race, or belief did not enjoy the same freedoms of other citizens. Imagine a society where those that started with laws to supposedly defend their religious liberty, or rights then supported other more far reaching laws, laws which deprived those that they demonized and refused to serve of citizenship, freedom of association, freedom of movement, and robbed them of their homes and businesses, banished them to ghettos and eventually exterminated them. While the Nazis primarily went after the Jews, they also went after the gays.

Of course the Nazis did this in the years leading up to World War Two in their actions against loyal German Jews who simply wanted to fit in, and well we Americans, let’s not even go there… but the let’s go there. We have the extermination and the ghettoization of our Native American population, we have the African slave trade and the institution of slavery, we have the human trafficking and exploitation of Chinese workers in the 1800s, the Jim Crow Laws, and yes the incarceration of Japanese Americans in what we called “internment camps” in World War Two.

Now for one minute tell me that those that propose such barbarous laws now to be used against the gays, simply because Christians want to have a law that allows them to discriminate against those they hate and condemn to hell are that much different than those Christians, be they American or German who justified their actions with law based on their deeply and sincerely held religious beliefs? I think not. In fact the whole proposition that we enact such laws flies in the face of the wars that these same people want to send in the ground troops to fight Islamic State over. Heck, the Islamic State is actually acting out the fantasies of the most extreme American Christian anti-gay preachers. They are killing gays, throwing them off the roofs of tall buildings. Sadly, many American Christians so consumed by the hate and paranoia being preached in their churches and by right-wing political groups which pose, as Christian ministries don’t see that their actions are simply a different breed of the same animal. Right now, the difference is just a matter of degree.

I think that is why Thomas Jefferson wrote this very pertinent warning to us who might want to return to the barbarous ways of our ancestors:

“I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” 

I personally do not want to live under the laws of our barbarous ancestors, and I will fight for the rights of those who are being targeted, primarily the LGBT community, but anyone else, by the lawmakers and supporters of such laws.

That my friends is why I rejoice in the Supreme Court ruling in Obergfell v. Hodges. It is a step to moving forward in liberty and progress and away from barbarism.

So have a great and thoughtful Saturday,

Peace

Padre Steve+

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