JACK BERNARD'S TRAVELS

Posted by jdbernard743

· March 30, 2022

Once Upon a Time…

Many years ago, Joe Biden and Clarence Thomas were above-the-fold front page news. Thomas was accused of behavior unbefitting a Supreme Court nominee. It was a political sideshow. Thomas called it a “high tech lynching.” Democrats called him unfit. The woman accuser was sacrificed on the alter of expediency, and Thomas was confirmed by a Senate vote of 52-48.

Today Biden and Thomas are back in the headlines, Biden as POTUS and Thomas as the Supreme Court’s senior Justice. And once again, Thomas is at the center of a political firestorm regarding his fitness to serve.

This time a different woman is sharing the headlines. Now, it’s his wife Virginia, aka Ginni, who has brought the matter forward. Documents reveal that following the November 2020 election, Mrs. Thomas, an ultra-conservative operative, was actively strategizing with White House Chief of Staff Mark Meadows to overturn the election and reinstate Donald Trump as president.

In July 2021, a House Select Committee was appointed to investigate the causes and events surrounding the January 6, 2021 attack on the U.S. Capitol. As part of the investigation, Meadows was instructed to appear and produce documents associated with his tenure. He refused and the case went to the Supreme Court. The court ruled in favor of the committee with Thomas as the lone dissenter.

This week it was revealed that the documents requested include 29 text messages exchanged between Thomas’ wife and Meadows. Sitting in judgment on that matter was a clear conflict of interest.

Most legal scholars agree Justice Thomas should have recused himself from consideration of that case and all subsequent cases involving events related to the insurrection. Unfortunately, while lower courts have rules governing conflict of interest recusals, the Supreme Court’s rules are vague and rely on the justices to police their own involvement. So far, Justice Thomas has remained silent on the matter of recusal.

We didn’t know when the case went up to the Supremes that her texts to the White House were included in the requested documents—but he did. Now that we know, should Chief Justice Roberts allow him to give a single-digit finger to the way justice is delivered on his court?

With changes in the composition of the court, Associate Justice Thomas has recently come into his own. When Justice Scalia was asked to compare his jurisprudence with Thomas’ he said, “I’m an originalist but I’m not a nut.” He has gone from being mocked and marginalized to mainstream. The justice who once went more than 10 years without asking a question during oral argument is suddenly positively garrulous. Scalia, the dominant conservative voice is gone. RBG the dominant liberal voice is gone. Anthony Kennedy the often-decisive vote is gone, and three very conservative justices appointed by Donald Trump have successfully tipped the scales in Thomas’ favor.

Time and the court, now unbalanced with a 6-3 tilt to the right, has given him power he never imagined he would have. For years his dissenting opinions were peppered with grievance and his jurisprudence widely seen as a way to strike back at those who opposed his nomination. In the last two years he has turned the tables and embraced his new role. As the senior conservative justice side, he is the one who assigns opinions when his side is in the majority.

In an era when norms have been obliterated in government and governance, Thomas is breaking new ground. For more than 230 years we believed in the blind woman holding the balanced scales of justice as the symbol of judicial impartiality. We no longer do. According to February 2022 Gallup Poll, only 40% of adult Americans have a favorable view and believe in the impartiality of the Supreme Court.

Court watchers lament the passing of the once widely held belief that politics should play no part in jurisprudence. In September of 2021, before he announced his upcoming retirement, Justice Stephen Breyer published a small book entitled The Authority of the Court and the Peril of Politics in which he defended the Supreme Court’s apolitical character, a defense that has been soundly criticized as condescending, naïve, and blind to reality. Lawrence Tribe, the Harvard Professor Emeritus and dean of American constitutional scholars who admires Breyer’s jurisprudence has called the book a “self-serving series of what can only be called platitudes.”

I agree. We can’t ignore reality and pretend the current court is apolitical. Supreme Court appointments are cyclical and, if history is any guide, it is likely the pendulum will swing back. In the meantime we can at least demand ethical behavior and well reasoned decisions from the sitting justices.

Recent decisions on voting rights, gerrymandering, restrictions on abortion, Trump administration policies, and Covid mandates – all delivered in unsigned “shadow docket” rulings without full hearings, briefs, or oral argument further undermine respect for the court and its authority.

Polls show that most Americans want assurance that we are governed by the rule of law. We may not like the way the court disposes of cases, but we believe the system is inherently good. We want honesty, fairness, and equity in all areas of our lives.

Some believe that expanding the number of justices or imposing term limits on their tenure, will rebalance the court, but neither is likely to “fix” what’s wrong. Court appointments have always had a political component, but since the days of the liberal Warren court, presidential appointments have become more partisan and the composition determined by deaths, retirements, and opportunities given the sitting president to fill the seat. No one could have predicted that Donald Trump would be able to nominate three justices and totally tip the scales to the conservatives.

Will it take another World War to unite us? Today our support for the people of Ukraine is uniting us in support of a sovereign democratic nation under attack. The confirmation of Ketanji Brown Jackson to fill the Supreme Court’s open seat is another opportunity for Senators to cross political lines and help restore the court’s reputation.

We can’t let Clarence and Ginni Thomas or the alt-right further denigrate our institutions. There are not two sides to this argument. The Supreme Court deserves our respect, but it needs to be earned. Justice Thomas and the Machiavellian machinations of Senator McConnell have undermined America’s confidence in the even-handed administration of justice. Restoring confidence in the Court will not come quickly. There is no quick fix.

In a recent Los Angeles Times Op-Ed, Erwin Chemerinsky, the dean of my law school alma mater, encouraged law students and their teachers to have faith that the Supreme Court can regain the respect for precedent and approach to the law it once had. “There really are just two choices: Give up or fight harder, even if there will be losses along the way. If we can instill in students a desire to defend justice, even if victory is distant, it will be a good semester, no matter what the Supreme Court decides.”

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Categories : Books, Ethics, News and Media, Politics, Writing

Posted by jdbernard743

· February 6, 2022

· 4 Comments

Teaching the Truth…

Several high profile lightweights are throwing their weight around these days. A podcaster, a primetime “influencer”, the son of a dead president’s dead brother, and a scraggly bearded QB who misled teammates and the NFL about his vaccine status. All have contributed to the spread of misinformation and the disgraceful manipulation of audiences hungry for the truth in these perilous times.

Yes, Joe Rogan, Tucker Carlson, RFK Jr. and Aaron Rogers are pedaling misinformation about the efficacy of the coronavirus vaccine. Never-mind them. Forget Spotify, Fox News, and other fringe podcasts. Something even more dangerous is happening at school board meetings across the country. It’s about books. It’s about teachers. It’s about parental and social responsibility.

Puritanical reactionaries determined to keep controversial information from their children have always worked the edges of our educational system. In the 1920s they focused on sex, reproduction, and language. The U.S. Post Office banned books like Lady Chatterley’s Lover, Ulysses, and Henry Miller’s novels because they were determined to be “obscene.”

In 1960, Tulsa, Oklahoma school administrators fired an English teacher for assigning Catcher in the Rye to his 11^th-grade class because it contained “vulgar language”. In Columbus, Ohio a teacher deemed the Salinger novel “anti-white” and school administrators banned it.

Last month, in King County where I live, a principal removed three YA (young adult) LGBTQ+ books purchased by her Middle School librarian because of “sex, profanity, and obscenity not appropriate.” Now, parents in the district are inventorying all the library shelves looking for other objectionable material. But…it gets worse.

While puritanical elements may still want to shield their children from the facts of life, the focus has recently turned from sex to history – particularly teaching them about America’s racial history. Gone are the days when textbooks got away with burnishing the reputation of the Founding Fathers by lauding the “all men are created equal” language of the Declaration of Independence and the Constitution’s “government of the people, by the people, and for the people.” Today we know that most of the founders were slaveowners, that only white property owners were allowed to vote, and “the people” did not include women or people of color.

These are the facts, not alternative facts, but irrefutable facts. This is our history. Those who want to hide the truth are crusading against what they disdainfully call CRT, Critical Race Theory, as if it were a theory and not historical fact. Much of the attention is the result of a New York Times initiative called The 1619 Project, a series of 19 essays that explore the legacy of slavery in present-day America.

Slavery has always been near the center of our national narrative. It arrived on our shores 400 years ago. Can we ignore it? Should we not talk about it? Should we not teach our children about it? Apparently, many Americans think so. There is a growing movement at the local school and school board level to keep that part of American history out of the classroom.

When I lived in Berlin in the 70s and 80s, German schools conveniently ran out of time to teach the Nazi period near the end of every school year. That’s changed in Germany, but today CRT is front and center in American curriculum debates.

In the 1930s the Nazis burned books they thought objectionable. Four days ago, a Tennessee pastor live streamed the burning of the Harry Potter and Twilight series of books on Facebook, and last month another Tennessee school district banned the Holocaust-based graphic novel, Maus. This didn’t happen in Nazi Germany. It happened right here in the United States of America. Reverend Gary Locke promised “We have stuff coming in from all over that we will be burning. We’re not playing games. Witchcraft and accursed things must go.”

Is Tennessee an outlier in the book banning schemata? It isn’t. It’s part of a larger effort to control the narrative and teaching of American history. In recent years school districts from California to Mississippi have banned Harper Lee’s 1961 Pulitzer Prize winning novel, To Kill a Mockingbird, because “of racist slurs and their negative effect on students” and for “featuring a ‘white’ savior character.” This would have been unimaginable 20 years ago.

Book banning and book burning have, like the phoenix, risen from the ashes as have white supremacy, anti-Semitism, and anti-Asian sentiment. I want to be clear; I don’t like the junk science that Tucker Carlson and Laura Ingraham are pedaling, but their misinformation is a petty threat compared to purging our libraries of quality fiction and well-researched historical scholarship. Education is the key to our survival. We need to hold the line and push back. We should never block access to established and evidentiary truth. We need to educate our children and grandchildren – not hide the truth from them. We need to stand up for the truth. It will set us free.

Categories : Books, Ethics, News and Media, Politics, Uncategorized, Writing, Writing

Posted by jdbernard743

· January 27, 2022

· 2 Comments

C’mon, Stop Pimping Your Elders…

I have an abiding dislike for people who make fun of others. I never liked Don Rickles whose act was an avalanche of insults, or Donald Trump who chooses to demean or slander those he disagrees with rather than engage them in debate. Remember Crooked Hillary, Little Marco, Sleepy Joe, Crazy Megyn, Pocahontas, or the disabled New York Times journalist he mocked.

Lately it’s Stephen Colbert, one of my favorite comedians, who is getting under my skin. He does an impersonation of Joe Biden that’s not about his politics. He’s mocking Joe’s affect as an out of touch old person.

Yes, sometimes he tries too hard to be au courant and relies on out of date reference. And there are too many instances of “hey, man.” Too many “malarky’s.” Too many “Barack and me” references. But Colbert’s riffs feel mean-spirited. There’s an exaggerated head tilt, aviator glasses, and a jocular crooked smile.

My friend, the writer Delia Cabe, nailed it yesterday when she said, “Ad agencies seem to think being over 55 automatically means you are incontinent, hard of hearing, incapable of dealing with a laptop/smart phone and more. Pisses me off!”

We are in the midst of a global Covid pandemic, but America is also in an endemic of ageism. It isn’t just Colbert or Trump, who play the ageism card. The attitude crosses all categories. Comics, pollsters, advertisers, SNL, employers, developers, film makers – all of whom trade on the stereotype of older people as being “resistant to change, not creative, cautious, slow to make judgments, lower in physical capacity, uninterested in technological change, and difficult to train.” (Wikipedia). It suggests that at a certain age, if we are seen at all, we are regarded as impotent, genderless, isolated, and out of touch. And, contrary more obvious forms of stereotyping, like racism and sexism, ageism seems more embedded and resistant to change.

Earlier in our history and still in other cultures, families were nuclear and crossed generational lines. Today, America’s focus on retirement generally signifies the end of productivity. “Seniors” are “put out to pasture” and given rise to a giant industry that is contemporary society’s way to warehouse the old. How a society treats its own says more about it than it does about them. It’s part of a culture’s social contract.

In the ancient east, the concept of filial piety is one of the pillars of Confucianism. It goes back to 400 BC and in general terms refers to the duty to take care of and respect one’s parents, but in the larger sense to show love, respect, and support for the wisdom of one’s elders. It’s not so long ago that such respect was part of our own ethos. I was raised that way. My parents taught me it was good manners. How we treat others says more about us than it does about them.

Looking at the prevalence of ageism in our culture should take us back to all the recent talk about civility in discourse. It’s related. Filial piety, the Golden Rule, good manners, respect for differences. Maybe the late-night comics should think twice before they poke fun at us. Many of us are still working. Maybe they could cut us a little slack for living productive lives. Poke fun at Donald Trump for his ignorance, lack of empathy, weight, dalliances, and greed but not for his age.

On a more serious note, do you think the Covid response would have been different if 76% of the 876,000 Covid-19 deaths had been 18-35 year olds rather than those over 65? This is the ultimate example and tragedy of ageism. Are those of us over 65 not as important, not as valuable? Would the response have been ramped up if children were dying at the same rate? I doubt it.

Back to the beginning… I’d advise Colbert to think ahead. If 65 is where the zone begins, at 57 his aged targets are only 8 years older than he is. Be careful Stephen. James Corden is 43. Jimmy Fallon, 47. Seth Meyers, 48. You might just be in their sights 10 years from now. C’mon Stephen…man up.

Categories : Art, Books, Ethics, Politics, Uncategorized, Work and Adventure

Posted by jdbernard743

· January 20, 2022

· 1 Comment

Democrats’ Double Bind…

In a perfect world winners win, losers lose. It’s clean, simple and beyond dispute. There is no confusion. But that’s not the world we live in. In a rational orderly world, disputes arise and are settled in a rational orderly way. Since the turn of the 21^st century that’s been the exception rather than the rule. On the streets of America, disputes are being settled with guns. Extreme right-wing factions hold seats in Congress. Philosophical differences are met with rigid hostility. Positions have hardened, and compromise is regarded as weakness. Good faith and the common good are antiquated ideas. Gridlock is the norm. Frustration and anger are common currency in the halls of Congress.

It’s difficult in any discussion of American democracy not to cite Churchill’s dictum that –

‘Many forms of Government have been tried and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…’

American democracy, we are told repeatedly, is an experiment. There have always been political differences, but there have been periods where established rules and behavioral norms provided a template for dispute resolution. As a former lawyer/mediator/arbitrator I was schooled to listen first and talk later.

Now, with a 50-50 party split in the Senate and the likelihood Democrats will lose seats in the upcoming midterms, frustration is fueling a rising tide to eliminate that pesky procedural obstacle called the filibuster. There are so many bills – voting rights, infrastructure, childcare, paid leave, child tax credit, climate change, gun control – awaiting Senate action but they are being blocked by Republican opposition. Their tool is the filibuster, and its use prevents a simple majority from passing legislation. The only way around it is a 2/3 vote for “cloture” i.e. a vote to end debate and proceed to a vote.

Both houses of Congress are dysfunctional. Republicans are committed to stonewalling all of President Biden’s initiatives, while House Democrats fiddle over “progressive” versus “moderate” agendas while Rome burns. Unable to modify their own positions to support their own president’s sweeping Build Back Better Bill (stupid name) while at the same time two Democrats in the Senate have stolen the headlines by denying the president his bill. They all look like elementary school kids squabbling on the playground as the tornado approaches.

It’s not simple, but here are Jack’s Notes on the filibuster: The US Constitution recognized that there were certain situations that required more than a simple majority to achieve a convincing consensus in support of an action. Impeachment. Expelling a member of Congress. Overriding a presidential veto. Ratifying treaties, and proposing constitutional amendments were explicitly listed as requiring a super-majority (2/3) vote. Some required it of the Senate only, and some required it of both Houses. Alexander Hamilton argued against it in The Federalist. Aaron Burr, his nemesis, thought it necessary in certain situations to develop a super-consensus.

The name comes from a Dutch word meaning “pirate” and suggests its use takes something unfairly. Implementation of the procedure is governed by the Senate’s rules and is subject to change by a simple majority. The tool itself was rarely used until after the Civil War but came into prominence during the move to enact civil rights legislation in the 1950s and ‘60s, when Southern Democrats used it to stonewall enactment of those laws.

Senate rules have been modified several times in order to modify the filibuster’s use, most notably in 2013 when Harry Reid, the Democratic Majority Leader exercised the “nuclear option” i.e., changed the Senate rule regarding presidential nominees to the Supreme Court. The nuclear option was to carve out an exception granting the majority confirmation authority for Supreme Court nominees. Reid was stalled trying to gain confirmation for Sonya Sotomayor and Elena Kagan, and this allowed him to move their appointment to the court through.

At this point, it’s good to remember that “elections have consequences,” because as soon as the Republicans took control of the Senate in 2017, Mitch McConnell took Harry’s nuclear option one step further and extended the carve out to all federal judges, giving Trump the opportunity to appoint 3 Supreme Court justices, 54 appellate judges, and 245 district court judges in four years.

The Democrats’ frustration with the current gridlock is understandable, but there are pluses and minuses to eliminating the filibuster or carving out an exception for voting rights? The rule is starting to look like Swiss cheese to me. Too many holes. On the one hand, it’s certain that all of President Biden’s legislation is doomed if they don’t make an exception. On the other, they need to remember that elections have consequences, because it is almost certain that Republicans will take the House and Senate in the upcoming midterms.

My intuition tells me they should “be careful what they wish for.” After yesterday’s vote, the filibuster is still with us. West Virginia’s Joe Manchin, and Arizona’s purple-haired wild card, Krysten Sinema, opposed the rule change in yesterday’s vote. There will be no “nuclear option,” i.e. exception, for voting rights legislation though both senators have declared their support for the John Lewis Voting Rights Act awaiting Senate action.

There are a couple of options involving rule changes that could make it slow the opposition, but they are unlikely to succeed. Earlier in its history, the filibuster required a senator or group of senators opposed to the bill to hold the Senate floor by being present and speaking their objections. Called a “talking filibuster” it was made famous in the film Mr. Smith Goes to Washington. The opposition had to be present and command the floor, but the rule was changed, and now a senator need only state his or her intention to block “filibuster” a bill to stop its progress. Then a “cloture” vote is taken to close off debate or bring it to a vote on the merits.

Psychologically, the Democrats are caught in a classic “double bind.” That theory, simply stated, posits “a situation in which a person (or group) is confronted with two irreconcilable choices or a choice between two undesirable courses of action.” In this case, the two courses of action are (1) to suck it up and accept their failure to enact the legislation, and (2) wait out the midterm elections and watch the Republicans amend the Senate rule to pass their own legislative agenda.

The original Voting Rights Act passed the Senate with a 79-18 vote in favor. That bill stood as enacted until the Supreme Court struck down the provision requiring states with a history of racial discrimination to “preclear” any changes with the Attorney General or the US District Court for D.C. Shelby County v. Holder (2013). That decision effectively gutted the law and all attempts to re-enact the legislation have encountered total Republican opposition. It seems tragic that invalidating a law designed to cope with racial discrimination is now enabling individual states to make it harder to vote. As of October 2021, 19 states had passed new laws to that effect with others in the hopper.

It’s not a perfect world, but we can do better if we want “to form a more perfect union” where everyone is encouraged to vote and every vote is counted. We are at an inflection point. History is cyclical. In less than 30 years America will be a white-minority country. The voter suppression laws now being enacted by the states are a last-ditch effort to forestall the effect of that change. I’m concerned that America is not listening to its better angels, that we are near a tipping point that favors anti-democratic forces. My fingers are crossed.

Categories : Ethics, Politics, Uncategorized

Posted by jdbernard743

· January 14, 2022

· No Comments

Reunion Follies…

I hope it doesn’t sound arrogant, but I’m not a fan of reunions. I’ve always thought they were too focused on the past – and often more sad than joyful. Lately that feeling’s been reinforced as a consequence of Stephen Sondheim’s death. Sondheim’s musical theater work is not traditional in the Rodgers and Hammerstein sense. No tunes to whistle. No catchy one liners. No surrey with the fringe on top. I had a philosophy professor who told me Kierkegaard was hard work but worth the effort. I feel the same about Sondheim.

The more I dig into his repertoire, the more complex and difficult it becomes. First came West Side Story and Gypsy, shows he wrote the lyrics for but others wrote the music. They were big Tony Award winners, but Sondheim wanted to write both words and music. His first successful effort was A Funny Thing Happened on the Way to the Forum, but it wasn’t until Company (1970) and Follies (1971) that he found the formless form that became his signature style and marked a sea change in musical theater.

Both productions won multiple Tony’s. I’m especially taken with Follies, a period piece built around the reunion of a group of showgirls from Weissman’s Follies (think Ziegfeld), a musical revue that took place between the two World Wars. The play is set 30 years after their last performance. The “girls” are getting together in the crumbling theater where it all took place to reminisce.

Follies makes my case for reunions. There’s anticipation and nostalgia for shared experiences and past relationships, but for the most part they disappoint and trigger memories of old resentments and unmet hopes.

At my age, the future has a short horizon but backward is a dead letter file. One of the jokes about reunions is that participants often say “Who were all those old people?” We want to see ourselves as we were in the old days, but we’re not the same people we were 30, 40, 50 years ago – inside or out. We are those old people.

I’m a member of a several groups that get together regularly, grade school (annually), fighter squadron (every two years), high school, college, and law school (every five years or ten years) and Pan Am where I was a pilot for 20 years. I’ve been to a few of these gatherings over the years, but the only ones I’ve enjoyed are the informal ones with old friends. There are relatively few unfulfilled expectations.

The hardest ones, for me, are the annual Pan Am gatherings. Notwithstanding the fact that I dislike reunions in general, this one is a petri dish swarming with anger and maudlin memories of the company’s collapse along with the subsequent loss of income, pensions, friendships, and in many cases identities.

In Follies, the old showgirls, shadowed by ghost-like younger versions of themselves, snipe at each other and clumsily replay their greatest hits. One sings I’m a Broadway Baby. Another one belts out I’m Still Here. They circle each other. They smile and stab, but the curtain came down 30 years ago.

Pan Am collapsed 30 years ago in December. Once the world’s greatest airline, it failed to adapt to a changing environment, was mismanaged, and fell on hard times. An unregulated industry allowed vulture airlines to swoop in and cannibalize its assets. In a few short years it was out of business.

I loved my time at Pan Am and the many friends I made there, but I’m not interested in replaying our greatest hits. I’m not judging those who do attend. I understand wanting to see old friends, but it doesn’t work for me. The crowd is too large. No time to really visit. It feels like we’re the remnant caught up in a time warp and circling the drain. We’re old now, fearful, and dying off. Is that all that’s left? I definitely feel a kinship, but most of my friends have changed and moved on.

Ironically, I received an email this morning from the pilot friend who has held this group together for 30 years. It was to tell us that the reunion scheduled for San Diego last October and rescheduled for April this year has been cancelled. Covid is the culprit, and he, the prime mover, is finished. “Due to my age (90) and physical capability I will not be involved in any future Pan Am social events.”

More than 300 former employees were signed up to attend the gathering in San Diego. His departure probably signifies the end of the Pan Am reunions. He has my deepest sympathies but it feels like the right time for the last curtain call.

Follies is worth watching (as is Company). Both plays hold a mirror up to the past and ask us to examine it and our relationships realistically.

“Folly plural follies:

a lack of good sense or normal prudence and foresight, as in “his folly in thinking he could not be caught.”
a foolish act or idea, as in “the prank was a youthful folly.”

Merriam-Webster Dictionary