Sunday, January 29, 2012


I often wonder if anyone reads the musings of the Old Judge. Hardly any comments get posted on the web, and emails approving or disapproving are rare.

But I did get a boost a week or so ago. As my golfing buddies gathered on the practice tee, one after another gave me a shout out. “Saw your blog, Judge.” “Read your blog.” And words to that effect.

They were talking about a blog entitled Sex For Dummies.

Now I don’t think my pals would consider themselves dummies, so I came to the conclusion that what attracted their interest was the word “sex.”

Ah, yes. Sex appeal. It sells cars, clothes, insurance and real estate. It’s the subject that gets everyone’s attention. So much so that the phrase ‘sex appeal’ has come to be a description of anything which has instant, visceral attraction to people in general.

And of course, ‘sex appeal’ in that sense is endemic to the political word.

Most people think that political speeches are boring, political campaigns are ugly, politicians are self-centered and self-aggrandizing.

Trying to get and keep the attention of the public is the principal interest and effort of campaign managers and political strategists.

And of course, of the media which reports their doings. What questions can you ask, what subjects can you debate which will titillate the audience?

The Jacksonville Republican debates were a good example. Wolf Blitzer is an old pro, and he certainly did what the suits in the corporate offices expected of him.

He asked Newt Gingrich about his attack ads against Mitt Romney. Which guaranteed that the next five minutes of the Presidential debate would be devoted to back and forth accusations about who said what about whom and who lied or exaggerated about whose wealth, taxes, income and bank accounts.

I suppose that’s the kind of television the corporate moguls at CNN think is red meat for the couch potatoes in the hinterlands. Had they thought of it, I’m sure they would have brought on Vanna White to flip placards introducing each topic of debate.

For my part, I wonder when candidates for President of the United States will begin to talk about the financial condition of the nation and what must be done about it.

If the stockholders of a corporation that was fifteen trillion dollars in debt were meeting to elect a president of the company, I doubt that they would want to hear about what a candidate’s second wife claimed he wanted to do in bed, or what bank accounts another candidate has in Switzerland or the Cayman Islands.

I think the stockholders would be more interested in hearing exactly what the candidates would propose to do to keep the company from going bankrupt.

Unless I have been grossly mislead, I understand that the credit of the United States of America has been downgraded, that other nations are organizing for the purpose of creating a new international reserve currency to replace the American dollar, that the Federal Reserve is currently issuing paper money at a rate that threatens hyperinflation.

I doubt that Americans have much stomach for hearing about or even thinking about the hard choices that confront us.

But the debate that needs to be conducted is exactly this:


Do we really need 479 boards, bureaus, agencies and offices in Washington?

Can we afford a Nanny State?

And who has the experience and the chutzpah to do what needs to be done?

Sunday, January 22, 2012


The secret that unlocked the computer revolution is a thing called binary code.

Binary basically means “two numbers.” Zero and one. All numbers and words can be expressed in binary code. That’s how computer chips work. They toggle from on to off, from positive to negative from zero to one at instantaneous speeds.

Here’s what my name, Thomas Brennan, looks like in binary:

So what has this to do with politics?

Logic. Binary is the basic expression of logic. Everything either is or it isn’t. All human decision making boils down to the ayes and the nays.

Either you do or you don’t.

That’s why we have two political parties in the United States. There’s nothing official about it. Nothing in the Constitution or laws limiting political activity to two parties. It’s just that every decision eventually comes down to doing or not doing.

In a democracy where the majority rules, you have to have a majority to do anything. “No” votes don’t have to agree with each other. If the majority votes “no,” it doesn’t happen.

The same is true in Presidential politics. The Constitution requires that the office of President goes to the candidate receiving a majority of the electoral votes.

If no candidate garners a majority of the Electoral College, the decision must be made by the House of Representatives. In the House, each state’s delegation has one vote.

As a result of its strong showing in the off year election of 2010, the Republican party controls a majority of 33 state delegations, while the Democrats control only 17, including the delegation from the District of Columbia. One state, Minnesota, has a divided delegation.

Enter Peter Ackerman.

Interesting fellow. Graduate of Colgate University and the Fletcher School of Law and Diplomacy at Tufts University.

He apparently made a lot of money as an investment banker with Drexel Burnham Lambert because he has had a lot of time to devote to idealistic causes.

Founding Chair of the International Center on Nonviolent Conflict. Chairman of the Board of Freedom House, a non governmental research and advocacy organization founded by Wendell Willke and Eleanor Roosevelt. Board Member of the Council on Foreign Relations, a non-partisan, non-profit, foreign policy think tank.

In 1990, he went to England as a visiting scholar at the International Institute for Strategic Studies, after which he co-authored a couple of books and helped produce some television documentaries about non-violent political activity .

About a year ago, Ackerman plunked down five million dollars to launch Americans Elect, an effort to create a third political party in the United States which would draft its platform and nominate its candidate for President on the Internet.

It has a very sophisticated web site at

Americans Elect has announced the goal of qualifying to place its candidates on the ballot in all fifty states, and they are well on the way.

Perhaps, just perhaps, Peter Ackerman will succeed where Ross Perot, Ralph Nader, George Wallace and Strom Thurman failed.

If Americans Elect can win enough electoral votes to deny a majority to either the Republican or Democratic candidate, the next President of the United States will be chosen by the Republicans in the House of Representatives.

Or, perhaps by a coalition of non-Tea party Republicans and Democrats.

Or, maybe, a coalition of Tea Party Republicans and Blue Dog Democrats.

Whatever the realignment of American politics, the irrefutable fact is that it takes a majority to govern. There are only two choices. Either you win or you lose.

Just like the Super Bowl.

Saturday, January 21, 2012


An economics Professor at Valencia College in Orlando starts his sophomore class by asking the students to write a ten minute essay describing the American Dream and what the federal government should do about it.

A wide majority of the students concluded that the American Dream consists of having a job, a house, a car, and a secure retirement.

It’s the duty of the federal government, according to these nineteen and twenty year old experts, to provide all of these things. And, of course, free college tuition.

These are kids whose parents, maybe grandparents, were enthralled by John Lennon’s 1971 release “Imagine.” Do you remember the lyrics?

Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people living for today

Imagine there's no countries
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people living life in peace

You, you may say
I'm a dreamer, but I'm not the only one
I hope some day you'll join us
And the world will be as one

Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people sharing all the world

You, you may say
I'm a dreamer, but I'm not the only one
I hope some day you'll join us
And the world will live as one

Not exactly passé` that ditty. Over 275,000 people have visited its web site since November, 2011.

Ah, the contradictions of utopia. There are no possessions, but everyone has a house, a car, and a retirement fund.

And world peace, just like the beauty queens pray for. No hunger, no greed. No killing and dying. No reward for virtue, no punishment for sin.

Indeed, no need for thinking. In Lennon’s perfect world, there’s no worry, no sorrow, nor pain nor grief. Of course, he also offered no victory, no joy, no happiness to be pursued.

And so the words of a drug addled musical genius have left their mark on our culture.

Eleven months before the Japanese attacked Pearl Harbor, Franklin D. Roosevelt proclaimed an international goal of assuring Four World Wide Freedoms. The first two were familiar to Americans; freedom of speech and freedom to worship God in our own way.

The third and fourth were new. Freedom from want would be achieved by international economic agreements, such that each nation could provide a healthy life for its own people.

Freedom from fear was to be accomplished by international disarmament, such that no nation would have the capacity to attack another.

Unhappily, FDR’s four freedoms have been truncated over the last seventy years. The ideas that government has the duty to provide freedom from want and freedom from fear have become hallmarks of domestic policy in the minds of many Americans.

Roosevelt’s dreams were short lived. Before the year was out, he was summoning the nation to mobilize and to sacrifice.

History has shown that peace is more likely achieved by a balance of terror among nations capable of pulverizing one another than by mutual disarmament.

This planet is a hard place to live on. Nature has its Tsunamis, and people have their faults.

The sophmores will learn that there’s a lot of heavy lifting to be done.

Wednesday, January 18, 2012


When whoever or whatever invented the human race, people were designed in two models. Pink and blue. Boys and girls. Guys and gals. Men and women. Male and female.

They’re both human beings. Homo Sapiens. Both are distinguished from lower forms of animal life by their attributes of intellect and free will.

But they are different from each other. Right from the get go, you can see that the plumbing is different.

Most of the other differences are related to those organs. The Inventor has infused us with a powerful mating urge. It affects our thoughts, triggers our emotions, challenges our intellects, tugs at our free will.

The reason is pretty obvious. Sexual activity undergirds the continuation of the human race. It’s a matter of life and death.

You don’t have to teach kids how to copulate. If you put a male infant and a female infant on a desert island and raised them with robots, they would figure out what to do with their sex organs at about age 14 if not before.

But the mating instinct is more than the urge to press pelvis to pelvis.

Human beings are hard wired to experience a whole panoply of emotions that expand the act of sexual intercourse into a relationship which has the same purpose and effect: the continuation of the human race.

And so men and women who engage in sex with each other are said, even in our hedonistic culture, to be ‘in a relationship.’ The simple, popular name to put on it is ‘love.’

But there is nothing simple about it. When people engage in the activity which makes babies, they experience a whole range of feelings and emotions.

They feel protective and protected. They feel possessive and possessed. They have been connected and they feel connected. It’s nature’s way of assuring that new born infants are not left to die nor toddlers left to fend for themselves.

These are rather simple observations which persons of normal intelligence can pretty much figure out for themselves.

Unhappily our free will sometimes gets ahead of our intellect. People who understand quite well that the purpose of eating is to nourish the body can nevertheless consume three hamburgers in four or five minutes to win a contest.

Just knowing the purpose of the mating instinct doesn’t stop people from prowling singles bars in search of a one night stand.

A society that treats sexual intercourse as no more significant than a game of table tennis and condones myriad forms of sexual gratification that have nothing to do with procreation may ignore, but cannot repeal, the laws of nature.

The consequences for society are apparent. Single moms. Single Dads. Broken families. Houses that aren’t homes. Kids that aren’t children. Grown ups that aren’t grown up.

A ‘Me’ generation followed by a ‘Me Too’ generation will not support a vibrant, productive economy. Hedonism is not a viable political philosophy. Even Ron Paul would agree with that.

There’s more. The idea that anything goes when doors are closed has a pathetic human dimension. It’s called Viagra. It’s called Cialis. It’s called erectile disfunction in healthy males. Daily use? Who are you kidding? Get a life!

A wise woman once told me that orgasm is in the brain. And so it is.The Great Inventor didn’t intend people to be constantly acting like love bugs until they hit the windshield.

Sex is the most powerful urge of our nature. It drives men and women to great heights of effort and achievement. The cycle of anticipation and fulfillment provides the greatest measure of happiness that is allotted to mortals in this veil of tears.

Indeed, abstinence is the most powerful aphrodisiac.

Monday, January 16, 2012


When I was sworn in as a Justice of the Michigan Supreme Court in 1967, my salary was $35,000 a year. Adjusted for inflation, that would be equal to $237,067 today.

The compensation of the justices has not kept pace with inflation. Today, they are paid $164,610.

Supreme Court Justices in Michigan are elected on a state wide ballot. My campaign in 1966 cost about $60,000. By contrast, supporters of current incumbents have spent as much as ten million dollars to secure a seat on the court.

No doubt the story in Washington is similar. Probably worse.

Month or so ago, I got a letter from Marco Rubio. Very bright, attractive young Senator from Florida, who was elected in 2010. He’s getting a lot of attention as an up and coming new Republican.

What caught my eye was the fact that his letter pitched for a campaign contribution.

Campaign contribution?

This fellow was just elected in 2010. He doesn’t have to run for reelection until 2016. That’s still four years away.

In his book, Republic, Lost: How Money Corrupts Congress, Lawrence Lessig describes the unholy alliance between members of Congress and the battery of lobbyists who dwell on K Street in the nation’s Capital.

Lessig insists it’s not bribery. At least not in the crass quid pro quo Blagojevich mode. But the fact that solicitations and contributions are made with finesse does not alter the nature of the beast. Congressmen and Senators ask for money all the time. And they ask the people they think are most likely to give.

The antidote offered by our politicians has been to create the Federal Election Commission. The Commission is what is known as an independent regulatory agency. Its six Commissioners, three Republican and three Democrat, are appointed by the President, confirmed by the Senate.

I took a look at the Rules and Regulations published by the FEC. The Index alone ran to 19 pages.

The Federal Election Commission has adopted a multitude of complicated rules and regulations. Truly marvelous examples of bureaucratic obfuscation.

And while lobbyists wine and dine the members of Congress and pour money into the coffers of their campaign funds, what does the Federal Election Commission spend their time, energy and budget doing?

Suing the Wisconsin Right To Life Organization. I’ll bet you didn’t know the Wisconsin Right To Life Organization is the principal source of corruption in Washington D.C.

I sure didn’t.

WRTL was running ads critical of Senate filibusters blocking the appointment of pro life judges. It took the Supreme Court of the United States to remind the FEC that the First Amendment is still in effect.

The very idea that the culture of corruption in the nation’s capital can be reversed by a regulatory agency is absurd. Even if they could bug every booth in every restaurant from Chevy Chase to Falls Church, and point surveillance cameras at every park bench, they could not begin to police the incessant give and take between the legislators and the legislated.

The problem with money in politics has to be addressed structurally. I gave the powers that be some ideas on how to get the money out of Michigan Supreme Court elections. The ball’s in their court.

In Washington, the reformers are divided. Some want to stop the flow of money by more regulation, more bureaucrats, more lawsuits and injunctions.

Others are a little more fundamental. I’m with them.

They say that we have to get the federal government out of the economy. Turn off the spigot of federal dollars, the bailouts, the stimuli, the give aways, the government sponsored enterprises, the loans and gifts and grants and special privileges, exemptions and loopholes that attract money to Washington.

Tuesday, January 10, 2012


The recent bru-ha-ha in the Wisconsin legislature reminded all of us of a very fundamental rule that governs all parliamentary bodies.

You just can’t do any business without a quorum.

The stalemate in the Wisconsin Senate was temporary, of course. The Democrats were elected to serve in Madison, Wisconsin, and they couldn’t hole up in Illinois indefinitely.

Still, it was a procedural lesson well learned and visibly demonstrated, and it bears examining in an entirely different context.

OK. So flip the power point to a new slide. Let’s talk about an Article V Convention to propose amendments to the federal constitution. It’s the subject of a big debate.

There are basically two sides to the argument.

On the Pro side, there are many people and quite a few organizations who favor the calling of a convention. Almost all of them have an agenda. They want a convention to propose one or more specific amendments.

On the Con side, there are strident naysayers who insist that there is no such thing as a limited convention. They point out that Article V of the constitution authorizes the convention to propose amendments – in the plural – and therefore neither the states nor the Congress can limit its agenda.

They waive the scary flag of a ‘runaway convention,’ and conjure up all kinds of frightening notions like repealing the Bill of Rights, as though a convention could both propose and ratify a whole new constitution.

Unfortunately, the people on the Pro side of the argument are almost as afraid of the convention as their opponents.

As a result, you have all kinds of competing issue-specific advocates knocking on state legislative doors with their verbatim resolutions in hand calling for a convention for a single purpose and threatening to withdraw the application if anything else gets considered.

Article V requires Congress to call the convention if 2/3 of the states ask for it. Congress, of course, doesn’t want a convention because they fear it might trim their entitlements or limit their terms.

If all the Pro people could get together, there might well be 2/3 of the states demanding a convention. In fact there have been over 700 such petitions sent to Congress over the years. Congress has simply ignored them.

Many legal scholars side with Congress. They say the petitions have to be concurrent and compatible. That is, they must arrive in Washington at about the same time and deal with the same subject.

Of course, there’s nothing in Article V that says they have to be concurrent and compatible, but you know how clever and convincing legal scholars can be. Especially when they are saying what you want to hear.

Frankly, I think the whole debate is much ado about nothing. The constitution requires that 2/3 of the states ask for a convention. Very simply, you can’t have a convention without the participation of at least 34 states. Period.

So very literally, the constitution requires a minimum of 34 states to be represented at the convention. If there are only 33states, there is no quorum. And without a quorum, the convention cannot propose an amendment to the constitution. The only thing a convention can do without a quorum is try to get a quorum.

So here is the resolution that the pro-convention advocates should agree upon:

In the Legislature of the State of ___________, the Senate and the House concurring, BE IT RESOLVED that the Congress of the United States is requested to call a Convention for Proposing Amendments to the Constitution as provided in Article V thereof, the same to be convened in the City of Philadelphia on the second Monday in May, 2013 upon the attendance of a quorum of representatives of at least 34 of the several States.

There can be no “run away” convention. Any time less than 34 states are represented, there is no quorum, and nothing will happen. States that don’t agree with the agenda can simply call their delegates home.

And they don’t even have to hole up in a motel in Illinois.