Not the Party of Lincoln

130205_abraham_lincoln_ap_605_605Abraham Lincoln is the one American president everyone claims, well almost everyone. Lincoln is the model of principled leader, the shrewd strategist navigating through the most severe crisis the nation has ever faced. His writing skills astound. His humor, much of it self deprecating, was a marvel. I can make the case that Lincoln invented the role of commander-in-chief and despite his lack of education in military matters he became a better strategist than any of his generals, including Grant.

Lincoln’s Social and Economic Policy

In one year of his presidency, 1862, Lincoln signed four nation changing acts. One was the Homestead Act, a massive transfer of wealth to thousands of Americans who, without the chance to own and live off the their own land, had little hope of improving their economic status. One of the beneficiaries of was my grandfather, a poor Missouri boy who staked out his homestead in the sand hill country of western Nebraska just after the turn of the 20th Century. He proved up his place and got married to a woman whose husband had abandoned her leaving my grandmother with two young sons to raise on her own. Their marriage produced my dad who would admire to the end of his days the grit and determination of his own father in carving a life out of the land. My grandfather later owned a successful business, became the mayor of his adopted home town and gave his own sons, including my dad, a big leg up on life. It all started with Mr. Lincoln signing that Homestead Act in 1862.

That same year, 1862, the president also put his A. Lincoln on the Morrill Act creating the great system of public higher education – Land_grant_college_stampthe land grant colleges – that helped further transform the country and cemented the idea that everyone had a chance to attain an education and acquire a profession. I graduated from a land grant college, so too members of my family.

In 1862 Lincoln also authorized the transcontinental railroad, a massive windfall for a handful of already very wealthy railroad barons, but also a massive public works project that created wealth from the bottom up as well as from the top down. Many of those who benefited from the homesteads and the education and the railroads were immigrants, Irish and German, Swede and Finn. All came to America looking for opportunity and many finding it thanks to enlightened Republican-inspired public policy created, hard to believe, in the middle of a great civil war. All told the social and economic policy made during that one year of Lincoln’s presidency transformed America.

The fourth great accomplishment of 1862 was, of course, the Emancipation Proclamation, an audacious expansion of presidential power that Lincoln’s many critics condemned as executive overreach. One wonders if that executive order will stand the test of time?

In an engaging and provocative new book – To Make Men Free – Boston College historian Heather Cox Richardson tells the story of the creation of the Republican Party – Lincoln’s party – as an activist, results oriented movement that was determined to support “a la-la-ca-0919-heather-cox-richardson-087-jpg-20140924strong and growing middle class, whose members had fought to defend the government during the war and now used government money and owned government bonds, paid government taxes and attended government-funded colleges, and gave their wholehearted allegiance to the nation.” Oh, yes, Lincoln’s Republican Party also championed immigration.

It is a curious twist of history that the Republican Party of Lincoln, a party that began as a champion of the middle class and freed the slaves, now so closely identifies with the most privileged among us, while catering to older, white voters, many in the south. Democrats have undergone their own evolution, as well, transforming a white, southern-dominated party that once stood mostly for state’s rights and private privilege into a party that embraced civil rights and now commands the allegiance of America’s growing minority population.

As the Los Angeles Times noted in it’s review of To Make Men Free, “Richardson traces the [Republican] transformation from an egalitarian and broad-minded coalition into a narrow and disappearing one, increasingly trapped in a demographic isolation booth of its own making.” Richardson argues the Republican transformation from Lincoln’s party to the Tea Party has hardly been a straight line progression. Theodore Roosevelt with his efforts to cut monopoly down to size and Dwight Eisenhower with tax policy and the interstate highway system were other Republican presidents who tried to return the party to its founding principles. Those efforts did not last and now the GOP has fully embraced a philosophy that is almost entirely based on opposition to the current man in the White House and tax cuts mostly designed to benefit the Koch Brothers class. One doubts whether Republican icons like T.R. and Ike could get out of an Iowa caucus these days. They simply stood for too much that is foreign to today’s Republican Party.

And…Then There Was Immigration

Now that Barack Obama has finally pulled the pin on the immigration grenade and rolled it across the table to Mitch McConnell and John Boehner, the country’s poisonous partisanship instantly became even more toxic. As is usually the case with this president he did a masterfully inept job of setting up the showdown.

Six months ago Obama might have given his GOP adversaries a public deadline for legislative action and framed the debate in simple, stark terms. Congressional Republicans have a chance to prove, Obama might have said, that they are not completely captured by the xenophobia of their most radical elements. He could have added the hope that Republicans would chose carefully their approach and then stumped the country for a specific proposal. Of course I know the Senate long ago passed a bipartisan immigration bill, but that recent history is lost on all but the most inside players. Obama’s approach to both teeing up and framing the issue and the predictable Republican reaction just doubles down on do nothing. The political environment grows more heavily seasoned with rancor that breeds hatred.

While Obama remains a maddeningly aloof personality who displays a persistent unwillingness to engage in the grubby details of politics, it is also true that the modern Republican Party has been captured, as Heather Cox Richardson says, by its no-to-everything base and can “no longer engage with the reality of actual governance.”

Obama, one suspects, will ultimately win the immigration fight. Facts, logic and demographics are on his side, not to mention an American tradition of fairness and justice. But in the meantime the senseless and petty partisanship rolls on. Congressman Raul Labrador suggests a government shutdown “lite” that would stop confirmation of any Obama appointees and slash some budgets. Others whisper impeachment and House Republicans have sued the president.

The incoming Senate Majority Leader says the new Republican Congress will consider a range of alternatives to deal with the president’s unprecedented power grab, which is not, of course, unprecedented at all. Here’s an idea for Senator McConnell who promises “forceful action” – how about you all pass a bill to fix the immigration mess. What a novel idea. Lawmakers legislating. Almost Lincolnesque.

The Winner Is…

How far we have come, or perhaps fallen.

The Republican romp across the electoral map yesterday may or may not prove to be a defining moment in the “re-branding” of the national GOP in advance of the 2016 presidential election to which all eyes now turn, but it most assuredly marks the first national election where the candidates – Republican and Democratic – lost control of their campaigns to the growing forces of dark money, secretly spent.

Barack ObamaThe 2014 mid-terms will be dissected by pundits to assess the real message of the dispiriting campaigns. Surely the president’s vast unpopularity is a big part of the story, so too the fact that Republican Senate candidates generally won in states where Mitt Romney ran well two years ago. Barack Obama long ago lost control of his presidency thanks to inattention, missteps, lack of political skill, or just a remarkable inability to turn clumsy GOP roadblocks into hurdles that he could clear. It’s also obvious that America was not quite ready yet for “post-racial” politics after Obama’s stunning election in 2008. In fact, part of Obama’s legacy may turn out to be that he finally helped complete Richard Nixon’s “southern strategy” of making all the states of the old Confederacy the most dependable part of the Republican base.

Still the real and lasting import of 2014 is hidden right in plan sight on our televisions – the attack ads, the depressing repetition of half-truth and distortion that is the uncontested central feature of our politics. Of course, all the distressing multi-billion dollar sleaze is financed by more money than ever before from fewer and fewer sources about whose motives we can only make educated and cynical guesses.

Back to the Future…

I’m betting not one American in million has heard of William Scott Vare of Pennsylvania, but the pudgy machine politician of the WilliamVareearly 20th Century makes as good an object lesson as any over which to scratch our heads and wonder again what’s happening as a result of the pernicious influence of money – really vast amounts of money – in our politics.

Before Franklin Roosevelt’s revolution reordered the nation’s political map in the 1930’s, Pennsylvania was a dependably Republican state dominated by old style machine politics. The GOP machine chose the candidates, lined up the money, managed the voting and sent its favorites to Harrisburg and Washington. In 1926 it was William Vare’s turn to reach the big time. Vare had spent most of his life moving through the chairs of Pennsylvania politics – Philadelphia city jobs, recorder of deeds, state legislature, then Congress. He was the Republican candidate for the Senate in 1926 when the odor of corruption hanging around him finally wafted into the U.S. Senate.

1101330227_400In a wonderful little essay on the Vare case, the Senate historian says that Mississippi Democratic Senator Pat Harrison took to the Senate floor in 1926 to denounce the influence of vast money involved in the primary election won by Vare in Pennsylvania. “Harrison pointed to reports that a staggering $2 to $5 million had been poured into the campaign and reminded his colleagues that in an earlier election a far smaller amount expended by Michigan’s Truman Newberry had been labeled excessive.” Imagine that. In 1926 the U.S. Senate actually debated whether too much money in a Senate race was a bad thing.

Not only that but after a series of Senate investigations stretching over more than three years, William Scott Vare was denied his seat in the Senate when a strong bi-partisan majority – 66 to 15 – determined that Vare’s vast expenditures from dubious sources were “harmful to the dignity and honor of the Senate.” These were the days before there was much of any type of campaign finance disclosure, but the Senate did determine, big surprise, that most of the money spent in Pennsylvania came from a handful of extremely wealthy individuals, including the Bill Gates of his day Treasury Secretary Andrew Mellon. Imagine that. The Senate actually once policed its own membership when presented with proof that one member had simply spent too much money to secure his election.

A Cancer on Democracy…

One gets the sense that American’s instinctively know that vast, unregulated amounts of money, secretly contributed and used almost exclusively to pummel one candidate or the other is the main ingredient in our politics of cynicism, dysfunction and hyper-partisanship. The numbers back up what instinct suggests:

The recent election involved the expenditure of more than $4 billion, much of it untraceable as to source. The North Carolina Senate race became the nation’s most expensive with $65 million spent. In Arizona, which had an open gubernatorial seat, the outside, “dark” money swamped what the two principle candidates were able to raise and spend. One Arizona reporter said trying to unravel the Andrew-Melonstrands of money resembled “a Russian nesting doll” where every disclosure leads to another mystery.

As if we didn’t already know that a handful of modern day oligarchs – the Andrew Mellon’s of the 21st Century – have come to dominate American politics, the Brookings Institution has produced a helpful guide to the guilty – the U.S. Billionaires Political Power Index. The Index is led by the Koch Brothers, Michael Bloomberg, Tom Steyer, Sheldon Adelson and on and on. The Koch boys spent $240 million this go round, Bloomberg about $50 million, Steyer about $55 million. Look at the list, see who these folks are supporting and draw your own conclusions about who is shaping American politics and policy.

Republicans had a big day Tuesday and Democrats took a real whipping, but the real winner was money. It may take a few more election cycles for public disgust at all this excess to finally begin to register, but it will happen. Just as William Vare perverted American democracy with vast amounts of money in the 1920’s and Richard Nixon used his secret stashes of campaign cash to try to keep the Watergate burglars from talking in the 1970’s, too much money in politics eventually leads to scandal. It will happen again, perhaps already has happened and we just don’t know yet.

In the post-Watergate period of American politics there were two schools of thought about political money. One view held that the amounts and sources of money should be heavily regulated to prevent politicians from being too beholden to any one source of campaign cash. The other view held that the amounts of money weren’t a problem as long as there was real transparency about where the money came from and how it was spent. Now post-Citizens United the U.S. Supreme Court has left us with neither approach – no limits and no disclosure – and Mitch McConnell can celebrate both his rise to majority leader and the triumph of the kind of unregulated political money that he has long championed.

Rather than limits and sunlight controlling political money the American democracy increasingly resembles Putin’s Russia or a Central American banana republic where a few really, really rich people lavish their money on candidates and causes.

Some will argue that American democracy is so resilient that it can withstand the corrupting nature of too much money from too few people, and one hopes against all evidence of how human nature works that such might be the case. What the system cannot survive, however, is a growing belief among the voters that their individual role in the process is being systematically replaced by the ability of a few billionaires to write massive checks to advance their own narrow, special and personal interests. That is not democracy, but we are about to see what it does to democracy.

 

The Value of Team

Loyal readers know that I am a long-time fan of the San Francisco Giants. I’m hard pressed to identify why precisely I have been190px-San_Francisco_Giants_Logo.svg following the Giants since the days of Mays and McCovey, Marichal and Cepeda, but I have. They are my team and with the events of last night – if you missed it a 3-2 Game 7 win in the World Series – I may just make it through the winter.

There was much to like about the just completed World Series: two wild card teams playing for the big rings, a team in the Kansas City Royals who electrified their town and region and came darn close to a championship, two old school managers, some great pitching and some marvelous defense. While I’m glad my squad won, I love baseball and it was a good series to remind us again why we love the great game.

I’ve been following this Giants bunch even more closely than normal this year. The MLB app for your iPhone lets you listen to the radio broadcast of any game and I have been through all the ups and many downs of this Giants’ season, as broadcaster Jon Miller would say, “on the radio…”

My comments about the Giants are based on watching – or listening – to the evolution of a team that, let’s be honest, had little right to expect to win it all – again. Like all teams the Giants had injuries, tough breaks and a monumental losing stretch in mid-season that might have doomed many other teams. Some how this team kept scratching and winning.

World Series - Kansas City Royals v San Francisco Giants - Game FiveI have absolutely nothing original to say about Madison Bumgarner’s historic pitching performance in Game 7 and I’ll leave it to others to proclaim the franchise located South of Market as “a dynasty.” My thoughts on this first day until pitchers and catchers report turn to that one word: team.

In a game that seems fixated most of the time on individual performance: earned run averages, batting averages, on base percentages and some of the new metrics I can’t explain to my wife, I love that the new World Champions really seem like a team in a game that often celebrates the individual.

Taking nothing from the World Series MVP, who will be mentioned all his days for his 2014 Series performance, I revel in the small things that teams do that make for success. A young second baseman who few had heard of in August turns a spectacular double play at a pivotal moment. A defensive left fielder not hitting much above his weight makes a key catch. A wacky journeyman DH with enough hair and tattoos to star in a Harley commercial understands that his role as a teammate is to hit a fly ball to the outfield that scores a run and later take an outside pitch to right field to score another. An even wackier right fielder – what is with those Hunter Pencepants Hunter Pence – brings a head-long infectious enthusiasm, not to mention intensity, to everything he does and you can’t escape the fact that it rubs off on his locker room pals.

During one sweet moment in the game the camera caught Bumgarner in, what for him, was an unusual spot – siting in the bullpen between a couple of his relief pitching teammates. Starting pitchers don’t sit in the bullpen very often – maybe only in the World Series – and Bumgarner was there, of course, to do precisely what he ended up doing in the World Series. But before any of that, the star ace put his arm around the guy to his left, I think it was relief specialist Jean Machi, and just kind of casually patted him on the back. It didn’t appear that words were exchanged, just a knowing pat on the back of a teammate. It was non-verbal communication that said more than words, including that we’re in this together – the biggest big game pitcher and the guy they send in to get one out and then send to the shower.

I’m as cynical as the next guy about the big salaries and the even bigger egos in professional sports and I hesitate to make too much of isolated gestures and small, even routine events, but I think I detect in the San Francisco Giants what every corporate manager or Marine Corps platoon leader strives to create and sustain: teamwork. Teams need leaders, of course, and the Giants have their share – Manager Bruce Bochy, catcher Buster Posey and the wacky and wonderful Hunter Pence. But all leaders know you can’t lead well if your team doesn’t first want to be a team and doesn’t understand the power involved in being good teammates. Being part of a good team covers a multitude of individual shortcomings and that, I think, is why the Giants went all the way.

From the office conference room to the neighborhood Little League there is absolutely no substitute for team. A few good teammates can make the best player look and be even better. Unless your game is chess, we all need teammates. It makes the game more fun and enhances dramatically the chances that you will win all the marbles. Just ask the World Champion San Francisco Giants.

An Election About…

One of the tightest gubernatorial races in the country is unfolding in Wisconsin where I’ve spent the last several days. The yard signs are as thick as the autumn leaves and, while the outcome of the National League Championship Series was most appealing – my favorites won – the inane television commercials from incumbent Gov. Scott Walker and his challenger Mary Burke made me long to26446948.sf get back to Joe Buck’s inane play-by-play.

The race here has come down to whether Walker’s policies favor the “wealthy” or whether Burke is just another liberal Democrat. I’d say “yes” and “probably,” although neither label says much about what the candidates would do about Wisconsin’s crumbling highway infrastructure or rapidly rising college tuition. The race has also featured ethics complaints, an old email about Burke, and charges of plagiarism, which has become the new communism in American politics. But, hey, it’s a dead heat!

Meanwhile, in wacky Florida, a little fan – not that kind of fan – starred in the most recent gubernatorial debate. I’m old enough to remember Ronald Reagan grabbing a microphone in New Hampshire and saying something about how he bought the darn thing. I wanted XXX cbs4fanphotoCharlie Crist to tell Gov. Rick Scott the same. “Gov. Scott, I bought this fan…” At least we know how Crist stays so crisp in hot, muggy Florida. I’m left to wonder if carrying a little portable fan with you everywhere you go is a sign of intelligence or, well, something else. Right now put me down as leaning toward the fan.

Back in the great Northwest, Oregon Gov. John Kitzhaber has a gender gap problem. In the reverse of most candidates, Kitzhaber needs a gap. He needs to put some space between himself and his fiance who has been serving as Oregon’s First Lady, while also being the Wife-in-Waiting and a private consultant on the side with, ahem, particular access to the top levels of state government. Here come the conflict of interest allegations that, even if Kitzhaber wins a fourth term, will play out for many months. It’s complicated, but so is Oregon. Kitzhaber’s opponent is a hard right state legislator who normally wouldn’t be caught dead in Portland’s chic and lefty Pearl District – and won’t get many votes there – and is therefore unlikely to beat the beat up governor, but stranger things have happened. For the most part other issues important to Oregon are now floating down the Columbia. Roll on…

In Idaho, a hard right governor is in trouble with his own party for a variety of reasons, including new revelations that his staff negotiated the fine points of a controversial settlement with the state’s former private prison operator who has been a major contributor to the governor’s campaigns. On at least two recent occasions the governor has said he knew nothing, nothing about the deal his top staffers helped create.

Governors, of course, arechrischristie_ap_img expected to know everything until they don’t know anything. Paging John Kitzhaber! Is Chris Christie in the house? Andrew Cuomo…paging Andrew Cuomo! Governor, any insight into neutering your own state ethics commission?

Let’s call it the silence of the lames.

A remarkable feature of the Idaho election this year is that several dominate party Republicans candidates – I’m not even counting Gov. Butch Otter – are remarkable for the simple fact that they are so clearly inappropriate for the jobs they seek. The GOP candidate for state school superintendent hasn’t voted in 15 of the last 17 elections and before she (surprisingly) won her party’s nomination no one outside of her school district had ever heard of her. She now says she wants to give back for missing all those chances to participate in the democratic process. You can’t make this stuff up.

The Republican candidate for Secretary of State was so disliked by many in his own party that he was voted out of office as Speaker of the state House of Representatives, in part for his inept handling of various ethics issues involving his friends. He’ll be a credible referee of fair elections, right? The incumbent GOP candidate for state treasurer is so unknown to voters that jokes have been made about putting his photo on milk cartons. The real question in his race, however, centers on handling of various state investment accounts. The answer apparently is that he hasn’t exactly been Warren Buffett when it comes to managing state money. You’d likely fire your broker for less, but hey its only a few million in public money. He’s only the state treasurer, after all. Whomever he is.

And where are the “responsible” voices in the state’s ruling political class about such obviously flawed candidates? Is that the wind I hear?

In early November, if history is a guide, somewhere south of 40 percent of American voters will troop to the polls and elect a new, probably more Republican House of Representatives and turn the U.S. Senate over to the Republicans, as well. The lame duck in the White House will be even lamer and the divided government that does nothing – and that American voters say they hate – will have a a two-year mandate to do more of the same.

As Tim Egan noted recently, we hate the Congress – or you might substitute the state legislature or your county commissioner – so let’s have a heaping helping of more of the same. “How else to explain,” Egan writes, “the confit of conventional wisdom showing that voters are poised to give Republicans control of the Senate, and increase their hold on the House, even though a majority of Americans oppose nearly everything the G.O.P. stands for?

“The message is: We hate you for your inaction, your partisanship, your nut-job conspiracy theories; now do more of the same. Democracy — nobody ever said it made sense. Of course, November’s election will be a protest vote against the man who isn’t on the ballot, a way to make a lame duck president even lamer in his final two years.”

Mid-term elections, even more than those elections when we select a president, have become about nothing. If anything, in the age of Super PAC’s, when a handful of the nation’s oligarchs essentially create their own version of political parties, the campaigns have become more vacuous, more irrelevant to the nation’s real problems, and more likely to turn off a sizable majority of American voters.

As the New York Times reports: “In 2010, the Citizens United decision by the Supreme Court effectively blew apart the McCain-Feingold restrictions on outside groups and their use of corporate and labor money in elections. That same year, a related ruling from a lower court made it easier for wealthy individuals to finance those groups to the bottom of their bank accounts if they so chose. What followed has been the most unbridled spending in elections since before Watergate. In 2000, outside groups spent $52 million on campaigns, according to the Center for Responsive Politics. By 2012, that number had increased to $1 billion.”

Elections are more and more about less and less, unless you talk money and then it’s the sky is the limit. A few enormously wealthy – not just rich, but oh-my-gosh really, really loaded – people are defining the nation’s political agenda, mostly for their own purpose and benefit, and issues like a better educated work force, a shrinking middle class, and the age old bugaboo of race and class are left to, well, they are just left.

I’m not one who finds a way to blame Barack Obama for everything from Ebola to the missing whack job in North Korea, but on one important count the President is responsible for at least some of the political malaise that Americans in the 21st Century have Theodore_Roosevelt_laughing3-e1316002011942-390x300started to accept as our fate. The recent Ken Burns’ documentary on PBS on the remarkable Roosevelts reminds us that the presidency, in good times and bad, is a bully pulpit where a leader – paging Teddy Roosevelt! – can help establish a national tone, a sense of urgency and, yes, a collective sense of responsibility for our shared fate.

Our national tone is now largely defined by Koch brother’s money or the latest flavor of the day from the political left. The nation turns it’s lonely eyes to Fox News or Jon Stewart. Charlie Crist’s fan aimed at his, er, pant legs becomes a defining moment. We want a leader to speak honestly and candidly about real things. We get the will-she or won’t-she from Hillary.

What might politics in 2014 be like if Butch Otter in Idaho or John Kitzhaber in Oregon or a Boehner or a Barack just said: “You know, I screwed up here. I didn’t handle it well. We really need to get on with the people’s pressing concerns.” I suspect we’ll never know.

If politics just becomes about winning an election by pandering to the lowest common fear and loathing in the electorate we get elections like the mid-terms of 2014. It’s the Seinfeld Show reduced to politics – a show about nothing.

 

When to Quit

One of the most difficult things to do in politics – perhaps the most difficult – is to quit. When do you cut-and-walk-away from a Marriageposition that is no longer correct, or defensible? How do you back down when time moves on and you are stuck on the wrong side of history? The wrong side of morality? The wrong side of the Constitution?

There are political calculations involved in quitting. There always are. What will constituents think who passionately continue to believe in a position that can no longer be sustained? When do you call off the lawyers, save the money and the time, and try to reconcile the age old problem of holding two conflicting ideas in your mind at the same time? How to admit that by continuing to advocate what you believe to be right, you will really be wrong?

The Ninth Circuit Court of Appeals has now presented Idaho with this most difficult moment. The most fierce advocates for denying Ninth Circuitsame sex marriage have now been told – repeatedly – that they are behaving in a manner not permitted under our Constitution. Those fierce advocates would be, in many cases, also the greatest defenders of the Constitution, at least the one they think they know. But now a bunch of faceless, nameless judges have said the Constitution’s guarantees of equal treatment under the law really do apply to all our people, even those who want to marry someone of the same sex. And what do you do?

Governor George Wallace stood in the school house door in Alabama to defy the Constitution. Governor Orval Faubus forced an American president to send paratroopers to Little Rock when he couldn’t bring himself to quit. Governor Ross Barnett permitted a riot to break out and people to die on a college campus in Mississippi rather than cut-and-walk away. Upholding the Constitution is difficult and dangerous business, just like quitting a position is difficult and, at least, politically dangerous.

Perhaps the most wonderful thing about America – and also the most difficult – is the idea that all the provisions of the sacred Constitution apply even to those we most fervently disagree with. I don’t like your speech, or your flag burning, or your race or religion, I disagree with your life style, but it doesn’t mean – it can’t mean – that my Constitution isn’t also your Constitution.

One can appreciate how far Idaho officials charged with defending the unconstitutional have gone by reading the Ninth Circuit’s decision (or, for that matter, Idaho federal Magistrate Candy Dale’s earlier decision). The arguments used by Governor Butch Otter’s lawyers to defend Idaho’s official position are, there is no nice way to say it, utter nonsense and if the matters at hand were not so serious the arguments would be just this side of laughable.

One of those nameless, faceless judge is Judge Stephen Reinhardt. He certainly looks like a judge, doesn’t he? Writing for the Ninth Circuit, Reinhardt says at one point in his decision: “Same-sex marriage, Governor Otter asserts, is reinhardtpart of a shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.”

The Judge, it would appear, was attempting to get to the essence of why Idaho has so strongly resisted same-sex marriage, but as he traveled the state’s road and attempted to reconcile Idaho’s claims with what the Constitution says, he found there was no there there. In a footnote, the Judge said this, really:

“[Otter, or more correctly his lawyer] also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.”

The Constitution doesn’t say anything about being a good parent, or a good spouse. It says a lot about equality under the law and now the Ninth Circuit with its decision, and the Supreme Court with silence, has told Idaho you need to stop treating people differently, because the Constitution of the United States says so.

Moving on from a long-held position is not only difficult, it can also be constructive and help foster understanding and greater acceptance. It is a teaching moment if someone wants to teach. A leadership moment if someone wants to lead. The U.S. Constitution is the textbook.

When Governor Faubus in Arkansas couldn’t reconcile himself – and his constituents – to the fact that the fundamental law of his nation allowed black girls to go to school with white girls in Little Rock in 1957 he wrote the first sentence of how history has remembered him to this day. The Encyclopedia of Arkansas says this about Orval Faubus, the longest serving Governor in the state’s history: “His record was in many ways progressive, but he is most widely remembered for his attempt to block the desegregation of Little Rock’s Central High School in 1957. His stand against what he called “forced integration” resulted in President Dwight D. Eisenhower’s sending federal troops to Little Rock (Pulaski County) to enforce the 1954 desegregation ruling of the Supreme Court.

Faubus“The Governor is “most widely remembered” for defying the Constitution and clinging to his old, illegal and morally indefensible position. Not the epitaph any politician imagines for himself.

Will the arguments about same-sex marriage continue in Idaho? Of course, just as they continued regarding race and equality in Little Rock in the 1950’s and beyond. Can political leaders, particularly those who have so adamantly defended what they have now been told is indefensible, help begin a more constructive conversation about fairness and equality? Of course they can. But, will they? Courage and leadership are required. Can they do it?

In the wake of the Ninth Circuit decision, Idaho has filed another appeal, but they will have to quit eventually. The Constitutional logic is too obvious. How they do it, the walking away and quitting, will be almost as telling as what they fought so strongly to prevent – equality and fairness.

 

A New Judge for Idaho – Part 2

The New York Times reported recently on a little noted aspect of Barack Obama’s legacy that will have lasting impact for the country.LadyJusticeImage As the paper’s Jeremy Peters wrote earlier this month, “For the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. The Democrats’ advantage has only grown since late last year when they stripped Republicans of their ability to filibuster the president’s nominees.” Peters was writing about Obama’s appointments at the the federal Court of Appeals level, but the same impact applies more broadly to federal District Courts.

In fact, the U.S. Senate has virtually eliminated the old back log of judicial nominations, so much so that earlier this summer there were few pending judicial nominations in the confirmation pipeline. Part of the reason for that is apparently the fact that some Senate Republicans – particularly from states with two GOP Senators – have simply refused to engage in the time-tested process of working with the White House to get potential judicial appointees into the cue.

“Texas Sens. John Cornyn (R) and Ted Cruz (R) have 10 empty court seats without nominees,” Jennifer Bendery reported in June, and one of those Texas positions has been “vacant for more than 2,000 days; another is approaching 1,100 days. Making matters worse, six of the 10 open judgeships in Texas are ‘judicial emergencies,’ meaning the workload for other judges is now more than 600 cases. For seats vacant more than 18 months, judges are handling 430 to 600 cases.”

Since that was written, Cornyn and Cruz have helped advance at least three candidates to the Senate for consideration, but the long wait continues in a number of states.

As I noted in yesterday’s Post, one key question about the pending vacancy on Idaho’s federal bench – my friend Randy Stapilus has made the same point – is whether the state’s two GOP Senators will work with the Obama Administration to identify a candidate to replace long-time Judge Edward Lodge, or whether the Senators will run-out-the-clock on the Obama presidency, while hoping a Republican ends up in the White House to nominate federal judges in 2017. If Senators Mike Crapo and Jim Risch adopt a run-out-the-clock strategy, Judge Lodge’s decision to assume “senior status” next summer will, even in the best case scenario, leave the Idaho courts shorthanded for 12 to 18 months, or longer. More on that later.

Time for a Woman…

Also yesterday, I suggested three highly-qualified, and largely non-political women who might make the Idaho selection process easier for both the Republican Senators and the White House. U.S. Magistrate Candy Dale, Idaho U.S. Attorney Wendy Olson and former Idaho Supreme Court Chief Justice Linda Copple Trout would be superb members of the federal bench and worthy successors to Ed Lodge. No doubt there are other Idaho women who have the qualifications, talent and temperament to be good federal judges. It is also clear that it is past time to have a woman on the federal bench in Idaho – Idaho has never had a woman as a federal judge – and for that matter it is past time to have women back on the Idaho Supreme Court. Idaho’s highest court once had two women among the five justices. Now there are none.

The National Women’s Law Center calculates that only 32 percent of the nation’s federal District Court Judges are women, and that number remains low despite the fact that, at least since 1992, women have made up at least 50 percent of the nation’s law school graduates. Idaho is one of only nine federal courts in the country that has never had a women district judge. As I said, it is long past time and no one can truthfully argue there are not qualified and, in fact, exemplary candidates.

The appointment and confirmation of federal judges has been one of the most contentious activities in our political system. Both parties have been guilty of the most blatant type of partisanship when it comes to staffing the supposedly non-partisan federal courts. It would be nice to think that Idaho, with a history of outstanding federal judges including Lodge, Lynn Winmill, Ray McNichols and Steve Trott to name just a few, could find a way to set the partisanship aside and identify and confirm a truly able federal judge. Stay tuned.

OK…and Some Men…

While appointing a highly qualified woman makes abundant sense to me, let’s play the “what if” game and consider four male possibilities that seem to me highly qualified, capable and possessed of the right temperament to do a fine job as a federal judge.

SGutierrez.sflbIf women are badly under represented on the federal bench, so too are Americans of color. Idaho Court of Appeals Chief Judge Sergio Gutierrez would be another historic appointment. The Judge has a compelling up-from-poverty story that took him from the Job Corps to a high school GED certificate to the University of California Hastings School of Law. Then-Gov. Cecil Andrus put Gutierrez on the District Court bench in Canyon County in 1993 and Dirk Kempthorne appointed him to the Court of Appeals in 2002. Gutierrez is a judge-as-role-model, a quiet, smart and decent fellow. He would be an historic and inspired choice for the federal bench and would shatter some old and persistent barriers.

I also think the current Chief Justice of the Idaho Supreme Court, Roger Burdick, is a truly fine judge, a stand-up guy, and Burdick could burdick-small-8-9-11 probably be voted the funniest federal judge in the country. The guy has a seriously good sense of humor, often displayed in a delightful, self deprecating manner. Burdick has been a prosecutor, a public defender, worked in private practice, served as a state district court judge and once oversaw the massive Snake River Basin adjudication. Burdick could not only do the federal job, he would do it very well.

lawrence-wasdenSince I’m a truly bi-partisan guy, I would suggest that current Idaho Republican Attorney General Lawrence Wasden is another qualified and talented guy who has show a real and important independent streak during his time in public office. Wasden has been a champion of open government, is a work horse, rather than a show horse, and has had the political courage to go against the prevailing sentiments of his own party more than once. If the federal judge process in Idaho eventually requires a nominee who could serve as a “compromise” candidate to bridge ideological gaps, Wasden could fill the bill. Along with retiring Secretary of State Ben Ysursa, Wasden is among the most non-partisan of the state’s elected officials.

Last, but hardly least, the politicians make these decisions could benefit from taking a long, hard look at the former Dean of the don-burnettUniversity of Idaho Law School Don Burnett. No knock against the new president of the University, but Burnett, who served as “interim” president of the U of I, would have been an inspired choice to run the state’s land grant university. Burnett has been a law school dean at the University of Louisville, as well as Idaho, was an original member of the Idaho Court of Appeals, appointed by Gov. John Evans, and is both a scholar and a gentleman having graduated from the Universities of Chicago and Virginia. Burnett is a deeply thoughtful legal scholar, who writes and speaks with a wonderful command of the law, history and common sense. What more could you want in a judge? Some might argue that Burnett is nearing the end of his very accomplished professional life, but I would argue that a few more years as a federal judge would be the perfect capstone to his already distinguished career in public service.

What’s Right, Rather than Political...

It has been nearly 20 years since Idaho has had a vacancy on the U.S. District Court. The decision about who replaces the respected Judge Lodge is about as important a public policy decision as the state has seen in some time. Perhaps as much as ever before it is falling to the nation’s courts to sort out society’s most complicated issues, often because partisanship and narrow interest has paralyzed the Congress. If partisan politics trumps what is best of Idaho, the decision on a replacement for Judge Lodge could drag on for months and months. It shouldn’t.

In February of this year, Idaho’s Republican Senators introduced legislation that would create a third District Judge position in Idaho. At the time, Mike Crapo said: “The need for an additional judge in Idaho has been widely recognized for years. The District of Idaho has been working to meet the needs of the district while facing growing personnel and financial challenges. Advancing this productivity by adding an additional judgeship to the court would help ensure effective access to justice for Idaho’s increasing population.” The Senators point out that its been 60 years since a second federal judge was authorized for Idaho, which argues both for expeditiously filling the new vacancy and passing legislation to create another position.

I have suggested seven potential candidates – three outstanding women, four highly qualified men. There are certainly more out there. Here’s hoping for an open, bi-partisan, efficient process that produces another Idaho judge as good as Ed Lodge has been.