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An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.
Read more at http://spectator.org/articles/62383/issue-supreme-importance-2016

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To Educate in the Permanent Things

In Arts & Letters, Books, Essays, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Politics, Walt Whitman, Western Philosophy, Writing on March 20, 2013 at 8:18 am

Allen Mendenhall

This article originally appeared here in The American Spectator.

In his State of the Union address last month, President Obama proposed changes to preschool, high school, and college education, respectively. His proposals generated praise and condemnation from the predictable cheerleaders and naysayers. Some celebrated his efforts to expand early childhood education; others suggested that he should have focused more on the student loan crisis; still others, not to be outdone, pointed to school funding, teacher salaries, grading, standardized testing, technology, and foreign study as the pressing issues that he neglected to address with sufficient detail.

Everyone, it seems, has an opinion about how to improve American education from the top down. But positive change rarely happens through centralized design; it arises spontaneously through the interaction of human agents operating within and among social groups. The State cannot plan and then promulgate a proper education, and legislative enactments cannot reflect the mores and traditions of local groups with differing standards and expectations. The most prudent and humble proposals for improving education are not couched in statist, Platonic terms about civic education and human perfection; instead, they approach learning modestly, on the individual level. They entail the everyday interactions between teachers and students. They are not stamped with the approval of politicians, unions, think tanks, or interest groups.  They take place in the classroom, not the public square. A teacher anywhere, whatever his station, school, or background, can implement them in his course without disrupting the pace or provoking the ire of the educational establishment. The best of these, because it is so easily executed, is simply to teach what T.S. Eliot, and Russell Kirk after him, called “permanent things.”

The permanent things are the inherited principles, mores, customs, and traditions that sustain humane thinking and preserve civilized existence for future generations; their canonization in literary, philosophical, religious, and historical texts happened and is happening in slow degrees. We can trace the permanent things through curricula that emphasize the ultimate values of prosperous societies. An informed, laborious study of the perennial themes and archetypal patterns in what are variously denominated as the Great Works, the Western Canon, or the Classics can help us to organize and make sense of the permanent things. There are those who would object that this approach seems too hopeful and ideal. But no one has suggested it as a panacea, of which there are none, and anyway, is there a proposal that could be simpler, more straightforward, and more workable than assigning and discussing the Great Works?

As early as 1948, Eliot remarked that “there is no doubt that in our headlong rush to educate everybody, we are lowering our standards, and more and more abandoning the study of those subjects by which the essentials of our culture—of that part of it which is transmittable by education—are transmitted; destroying our ancient edifices to make ready the ground upon which the barbarian nomads of the future will encamp in their mechanized caravans.” It might be asked just who these barbarian nomads are and why we ought not to welcome their cultural practices and assumptions. The barbarian nomads could be, I think, any group lacking in historical perspective and mostly ignorant of the illuminating continuities that have guided our weightiest and most imaginative thinkers. The practices and assumptions of these nomads are not grounded in lived experience but aimed at utopian projects such as ensuring equality, creating fundamental rights, or eliminating poverty, and, to the extent that these practices and assumptions deviate from enduring norms, they cannot be said to have flourished ever.

To study the permanent things, on the other hand, is to consider the prevailing and profound ideas from certain times and schools in relation to other such ideas from various times and schools throughout successive eras. It is to map the course of perennial ideas to examine how they apply to different settings and generations. It is both sequential and diachronic in its approach. Its chief benefit is to put ideas into context, which is to say that it is to make us aware of our own presuppositions and perspectives that necessarily arise from our social, cultural, and historical situation.  Each thinker lives in his own specific era and place and cannot gain knowledge in a vacuum outside of time; our era and place shape the manner in which we think and restrict our ability to imagine conditions beyond our immediate and tangible experience.

This is not to submit that our ideas are determined for us, only that we enter into experience with certain perceptions that we have no control over. They are there because of the conditions present at the time and space in which we exist.  A sustained study of the permanent things will show us that our perceptions are not totally alien from those of our predecessors, although the respective perceptions are different. It also teaches us to compensate for our prejudices and to avoid thinking that our necessarily limited perspectives are unconditionally true and universally acceptable, even if they have verifiable antecedents. It reveals, as well, that schools of thought cannot simply be deemed later versions of earlier schools just because the two are in agreement about certain points. Finally, although we cannot escape those presuppositions that are embedded in our thought and culture, being alert to their probable existence can counteract their possible effect.

A rigorous study of the permanent things provides a lodestar for evaluating particular ideas against that which has been tested and tried before. Ideas that seem new always have traceable antecedents, and individuals equipped with a fundamental knowledge of the permanent things are able to situate purportedly novel ideas alongside their forerunners. These individuals recognize that change is not always progress; sometimes it is decline, deterioration, or decay. Only a sense of the continuities of history and thought can demonstrate the difference. Our political pedants in general and President Obama in particular insist on recognizing and implementing new institutions as if a radical departure from historic standards and established customs is itself the mark of good and lasting policy. Yet the permanent things show that even the most exceptional thinkers, those who represent the spirit of their age, whatever that might have been or might be, are part of a greater tradition.

It may be true that to study a particular thinker’s cultural milieu and biography is requisite to placing his ideas into their proper context and to highlighting the unacceptable premises of his philosophy; nevertheless, cautious interpreters ought to consider whether his thoughts necessarily lead to certain consequences, or whether the events that seem related to his thoughts arose accidentally, apart from his philosophy. Put another way, the cautious interpreter must carefully consider causation: whether theories actually generate particular circumstances, or whether those circumstances would have come to pass regardless of what the thinker spoke or wrote. Mussolini, for instance, praised William James, but it does not follow that anything James said or wrote endorses or enables fascism. He who would suggest otherwise betrays an ignorance of James’s work. The permanent things can help us to distinguish the true forms and implications of an individual’s thought from their appropriations by hostile forces.

By studying the permanent things, moreover, we learn that we cannot achieve the proper education through mere funding; nor does the solution to schooling gridlock and setbacks come from student aid, dress codes, student evaluations, tuition, or whatever. These issues begin to seem fleeting and trivial to one with an historical sense. They are at most temporary struggles, and although they are important, as all struggles are important, we are not to subordinate liberal learning to them. The best way to achieve the liberal learning necessary to make important and meaningful distinctions about our complex world is, as I have suggested and as it bears repeating, through a holistic, painstaking exploration of the permanent things. This means not only reading the Great Works for their content, but analyzing them in light of their place in history.

The beauty of this approach is that anyone can carry it out; the wisdom of it lies in its civilizing effects. Whether one is a homeschooling parent, a public school teacher, the leader of a local book club, or simply a curious-minded autodidact, the permanent things are available to him in texts, waiting to be sifted through and analyzed. It is true that there is disagreement as to what constitutes a Great Work and by what criteria, but it does not take more than research and commonsense empiricism to discern which pre-twentieth century texts have withstood the test of time. Teaching the permanent things does not require a large-scale, bureaucratic, administrative overhaul. It does not demand central planning or the implementation of mass, curricular programs; it can be accomplished through decentralized networks of concerned individuals. If parents would teach their children, friends their friends, colleagues their colleagues, and so on, we would in the aggregate become a more literate, astute, and informed society. And as our politicians lecture us about our duties even as they demand our money, we can take comfort in the proverb that these things too shall pass.

Saying Yes to No

In Communication, Politics, Rhetoric, Rhetoric & Communication on October 9, 2010 at 12:24 pm

Not long ago I was in the passenger seat of my friend’s car.  This friend, backing out of a parking space, collided with another car that he didn’t see coming.  I had seen the other car but remained silent, assuming, wrongly it turned out, that my friend would notice the car, which, after all, was an oversized SUV.  Would that I had cried “no!” or “watch out!”  Instead I allowed the wreck to happen.

This year Republicans are crying “no!”  (Would that they had done so earlier.)  Massive bailouts, nationalized healthcare, increased spending—these things simply will not do.  Taking a page from Ron Paul’s playbook, Republicans have realized the power of “no” as a strategic signifier.  They have—implicitly at least—portrayed Obama as someone backing out of a parking space without looking over his shoulder or even checking his rearview mirror. Read the rest of this entry »

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