A NON PARTISAN COURT

The minions of nose count jurisprudence are awash in speculation about the Supreme Court these days.

Ruth Bader Ginsburg, already 77 years of age, will surely step down while Barack Obama is in the White House, maybe even before Thanksgiving if the GOP should win the Senate in 37 days.

Steven Breyer is 72. Probably plans to quit during Obama’s second term.

The next two names being mentioned are Antonin Scalia and Anthony Kennedy. Both were born in 1936. Neither will want to give the current Chief Executive a chance to choose his successor.

And so it goes. 2012 will be another bru-ha-ha over who gets to appoint the justices.

And why does it matter?

It matters because the Supreme Court of the United States has become just another political branch of government. Just another center of power where people go to get what they can’t get from the Congress, or from their state legislatures.

Used to be folks argued about activist judges versus strict constructionists.

Conservative Justices were just supposed to interpret the laws and the Constitution. Stay out of the voting booth. Stay off the editorial pages. Leave the hot button issues to the representatives elected by the people.

Bush versus Gore put an end to that. If you’ve got a majority of the Court, you’re the seven hundred pound gorilla. You can do whatever you want to do.

Then again, maybe, just maybe, the stars are well aligned to talk about how to get back to basics. Lots of folks are ticked off with both parties. Tea and coffee parties have emerged because the folks don’t even want to be called Republicans and Democrats.

Independents are on the march. Here’s something they ought to be marching for: a non partisan Supreme Court.

Is that possible? Isn’t everyone something? Right, left or whatever. But not just nothing.

Well, of course, nobody’s just nothing. Every judge has principles and preferences, experiences and opinions. It’s human nature.

But almost all of the 50 states have found a way to insulate their judiciary from the nitty gritty of partisan politics. Non partisan elections, Missouri Plan nomination, appointment advisory boards. There are lots of ways to soften the hard edges of party loyalty.

So here’s my thought for the day:

THE NON-PARTISAN COURT AMENDMENT
The Supreme Court shall consist of the current nine justices and their successors who shall be appointed for eighteen year terms by the President, without confirmation, from among a panel of five candidates nominated by the Chief Justices of the highest courts of the several states.

The Court shall interpret the Constitution and its amendments as understood by the people who ratified them and shall render no opinion enlarging or diminishing the powers of the government or the rights of the people.

I submit that this amendment would put an end to talk of court packing, to Presidents appointing justices to promote political agendas, to Senatorial confirmation circuses, and to tottering, dottering old men and women sitting on their Supreme Court seats, waiting for their party to win the White House.

If you’re with me on this, let me hear from you.

MY PUTTER

O’Brien brought me my putter on the green.

“Brennan,” he says, “I’m going to buy you a new putter. This thing is a relic.”

It was a teachable moment.

“A putter is like a woman, O’B,” says I. “You find one you like, then you stick with it. It will give you a lifetime of irritation and a few moments of ecstasy.”

He relayed my homily later at the stag dinner evoking a round of guffaws.

It is one of my better lines.

It had its origin at a charity outing when I won a putter in a raffle and donated it back to the cause. Just one of those things the muse provides when the stars are properly aligned.

I have no doubt it will one day be attributed to Arnold Palmer, if it has not already.

Still the retelling evoked an epiphany. A putter is indeed like a woman.

All the rest of the clubs have visible lines or groves on their faces. The putter’s face is smooth.

The putter is dainty, smaller than everything else in the bag.

You smash your driver, pound your fairway woods, hit your irons, even blast your sand wedge.

But you stroke your putter.

A woman will always do what women always do. So will a putter. It never deviates from the laws of physics and always propels the ball precisely where it is aimed and precisely as fast and as far as you stroke it to go.

So if the ball doesn’t go into the hole, it is always your fault. Never the putter’s.

Am I starting to make sense? Does it sound familiar?

When I see some guy putting left hand low, or left handed, or using one of those ugly long belly putters, I know the guy doesn’t get it. Probably isn’t happy at home either.

And then there are the unfaithful ones. Garage full of old putters. Discarded putters. Rejected putters. Like a scrap book full of pictures of old girl friends.

Not so much a record of past conquests as a montage of failures. A chronicle of seeking happiness in all the wrong places.

My epiphany has paid substantial dividends. A string of five and six footers. A couple twice as long and a heart stopping thirty five footer that sealed a ten dollar win for our foursome.

I’ve taking to calling the putter “Pauline.”

Later today I’m going to have her name engraved on her sole. Or is it her soul?

Either way, she’s a great old gal, and I love her dearly.

LAPEL PINS

Riding north from Lansing today, my dear wife was trying to operate her new cell phone and stumbled onto an email to the effect that ABC has forbidden its reporters to wear patriotic, American flag lapel pins.

Sounded pretty silly to me, so when we got home, I Googled and Snoped and pulled up the whole story.

First thing I learned was that it’s old news. Very old.

Apparently all network news channels have forbidden all kinds of lapel pins for a very long time.

The ABC story came about because after 9/11 some of the reporters asked if there could be an exception to the ‘no pin’ rule because of the attack on the World Trade Center and the Pentagon.

ABC said no.

Apparently, the other networks said yes.

So now all the red blooded patriotic American folks are ticked off at ABC.

And, I suppose, they’ll start boycotting ABC and the companies which advertise on ABC.

That’s their right. And no doubt if the cash register at ABC begins to feel the pinch, the honcho’s up in the executive office might just have some second thoughts.

That’s the way it works in a free country.

At least I’m glad that no hot dog anchorman at ABC has started a law suit to protest, like the hostess at Disneyland who wants to wear her Muslim hijab on the job.

ABC is a private company and they have as much right as Disneyland to have a policy about what their employees will and will not wear.

It’s strictly a business judgment.

Still, I have to wonder about the mentality of those who argued that the reporters should refrain from wearing American flag lapel pins because it would compromise their appearance of neutrality and could endanger reporters working overseas because they might be viewed as working for the American government.

Du??

Compromise their neutrality?

Put them in harm’s way because they might look like Americans?

I always thought the “A” in ABC stood for “American.”

Isn’t it the “American Broadcasting Company?”

Or are the reporters working overseas in less danger if they let people think that ABC stands for Arab Broadcasting Company?

I just wish some of our corporate whoosies would man up.

It could turn out to be good for business.

THE BIG APPLE

Saw Mayor Bloomberg bantering with Jon Stewart on television.

His Honor was making the case for the construction of the Islamic facility near ground zero.

He pointed out, quite accurately, that, if the folks who want to build it own the property and comply with all the building ordinances of the city, they have the same right to use their property as any other citizen.

Then he added that there are saloons and porn shops and all other kinds of land uses that some people don’t like in the neighborhood.

It’s a free country and hey, this is New York City. This is the Big Apple.

And so it is.

Being a lawyer and former judge, I am quick to stand up for the legal right of the owners of property to use it as they wish. Even if it’s unpopular. Even if it is intended to be confrontational.

But defending someone’s right to speak is not the same thing as agreeing with what they say.

And defending someone’s right to be confrontational is not tantamount to backing down or surrendering.

My concern about the proliferation of Islam in America goes to the heart of the philosophical differences between democracy and theocracy.

There was a time when Christian theocracy was prevalent. Indeed, one of the titles still held by Queen Elizabeth is “Defender of the Faith.”

In the middle ages there were ecclesiastical courts which functioned along side the English courts of common law.

The Roman Catholic Church still exercises law making powers, and convenes courts to enforce canon law.

The difference lies in the Islamic tradition of enforcement. Islamic or Shariah Law is not just enforced by education, moral persuasion and excommunication. It is enforced also by the sword. It asserts the right to decree the death penalty.

That, my friends, is the essence of sovereignty.

Sovereignty is the police power. The power of force. Ultimately the power of life and death.

In America, sovereignty is in the people. That’s why the second amendment gives us the right to bear arms.

That’s why our Constitutions, both state and national, divide the power to make, execute and interpret the laws among three separate branches of government.

So that no one man, nor any one group of men has the power of life and death.

The essence of the Islamic faith is doing the will of Allah. That’s a familiar idea to anyone who, as I did, learned in school that God made me to know Him to love Him and to serve Him.

But Christians gave up burning heretics at the stake centuries ago.

Islamic law still commands the death penalty for apostasy.

Judeo Christian civilization has long since learned to render to Ceasar the things that are Ceasar’s.

The concept of a sovereign civil government which respects religion, but is separate and neutral as to religious faith and discipline is the hallmark of western political thought.

That is worth fighting for.

GROUND ZERO

The proposed Islamic center a few blocks from ground zero got me to thinking.

That, and the Muslim hostess who insists on wearing her hijab instead of her Disneyland costume.

What the heck is going on in America?

I Googled up an article from the Office of International Criminal Justice at the University of Illinois. Entitled “Islamic Law, Myths and Realities,” the essay tells us that Islamic Law provides two ways to protect the five ‘indispensables’ of religion, life, intellect, offspring and property; moral education and deterrent punishment.

Deterrent punishment includes the full range of options available in our criminal justice system. And then some.

In the Islamic tradition, there is no separation of church and state. Islam is a theocracy, that is, a government controlled and operated by a self perpetuating oligarchy of religious leaders.

About a quarter of the Earth’s population is Muslim. They tend to gather in communities and impose their Shariah law, ignoring the civil and criminal laws governing the rest of the people.

Sort of like the Amish, only with knives and swords.

We have freedom of religion in America. It’s a fundamental right protected by our Constitution. But it’s not absolute.

If your religion says you should behead your wife if she chats it up with the milkman, the First Amendment isn’t going to keep you out of jail.

President Obama took a lot of flack for saying that America is not a Christian nation. Deservedly so, from a cultural standpoint.

But the fact is that the United States is not a theocracy. Our customs and our laws have come down to us through Christian civilization, but our nation was not founded by religious leaders.

The United States of American was founded by the people.

To be sure, the hand of the Almighty was there in Philadelphia. But not in the garb of the clergy. He was there in his role as the Creator of the universe and everything – and everybody – in it.

Our Constitution was Divinely inspired only in the sense that the Founders were using their God given intellects and free will to design a government which would in the words of Thomas Jefferson, “most likely effect their safety and happiness.”

The idea that God somehow ordains certain people, because of their lineage, or their education, or their wealth, or their holiness, or their sheer chutspah or charisma to be the rulers of the people simply does not sit well with Americans.

We believe that the people are sovereign. All the people. The young, the old, the black the white, the rich the poor, the smart and the dull. Male and female. Straight and gay. Hispanic and Anglo and Asian and everything in between. All the people.

I suppose there are some well meaning, loyal Americans who would change the First Amendment if they could. But if permitting Congress to establish a religion would mean overriding the sovereignty of the American people, and changing our form of government to an Islamic theocracy, it would be more than just an amendment. It would be the abolition of our constitutional system.

The University of Illinois paper urges us to open our minds and expand our knowledge base, and insists that Islamic Law can solve contemporary crime problems.

So could the mafia. So did Hitler.

I think we should fight like hell to save our country.

THE 28TH AMENDMENT

For the umpteenth time, somebody sent me an email trumpeting something called “the 28th amendment.”

One of the emails even suggested that I am supporting or promoting it.

Not so.

Well, not exactly.

I’m all in favor of amending the United States Constitution. In fact, I have been working very hard to organize an amendatory convention on the Internet.

And I certainly agree that something has to be done to rein in a Congress which seems to think it has the right to spend the public treasury on whatever it wants, including benefits for the Representatives and Senators themselves.

But the email that is going around is full of misconceptions and misinformation.

First, the number of Governors who are suing the Federal Government over the Health Care Bill has nothing to do with a convention or any constitutional amendment.

Article V of the U.S. Constitution requires Congress to call a convention for proposing amendments when requested by the legislatures of two-thirds of the States. That’s 34 States, not 38 as claimed in the email.

The convention would not be a constitutional convention. A constitutional convention writes a constitution. That’s not what an Article V convention does.

An Article V convention is an amendatory convention. Article V speaks about amendments to THIS constitution. It does not authorize or contemplate a new or different constitution.

Which brings me to the actual language of the so-called 28th amendment, being circulated by so many well meaning Americans. It says:

“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.”

The first part sounds pretty good. But does it refer only to laws that apply to all citizens or to any law that applies to any citizens?

I suppose it was intended to mean that Members of Congress couldn’t exempt themselves from Social Security taxes or from military conscription. But doesn’t it also say that members of Congress must receive food stamps, and every other entitlement that any citizen gets?

The second part makes no sense either.

If members of Congress must do for all citizens whatever they do for themselves, it follows that they must pay every citizen a Congressional salary, currently $174,000 a year, and provide every citizen with whatever else members provide for themselves, such as an office in Washington, D.C.

The writing of a constitutional amendment is not something that can be done by somebody sitting at his kitchen table. It requires thought, study, and careful examination by lots of different pairs of eyes.

After all, the Constitution and its amendments are the supreme law of the land. They must say what they mean and mean what they say.

Which is why I insist that an Article V convention is needed. Not just a single purpose, one-time gathering to push a particular amendment, but rather an ongoing, permanent institution which will run every idea for constitutional change through a meat grinder of critical thought and debate, so that whatever ultimately goes to the states to be ratified is worthy of the support and approval of all Americans.

In the words of George Washington, it must be the “Explicit and authentic act of the whole people.”

AN OLD SPEECH

When I’m not playing golf, I spend a lot of time rummaging. It’s what old people do.

A week or so ago, rummaging through some old speeches, I happened upon one I gave in Battle Creek, Michigan on September 28, 1968. It started out like this:

“Tonight, I have the honor of escorting my little princess – my daughter, Peggy.

I enjoy these periodic chances to be alone with my children – one at a time.

The long, pleasant drive along the freeway is a time to get better acquainted, to catch up on what’s happening, to answer questions and to listen.

Listen to what they think. Listen to their hopes and their dreams. Learn a little about what puzzles them, what frightens them, what worries them.

We hear a lot these days about the generation gap.

I suppose there is no way to prevent the gap between parents and children. The rushing of the years between us has carved out a natural gulf. We are on this side, and they are on that side.

But it is possible, I think, to build bridges across that chasm.

Not mighty, four lane highways, perhaps. Not like the Big Mac or the Ambassador Bridge.

But we can build simple homemade foot bridges. They will be tenuous and shaky. They will rock perilously in the wind. But if they are fastened securely at both ends with clamps of love, they will be strong enough for people to cross – one at a time.

It seems to me that the job of parents is to test that bridge, show that it can be crossed, and then, through our encouragement and by our example, see that our children cross over, bravely and safely to the other side of the ravine – the side reserved for adults, only.”

The rest of the speech was about the 1968 Democratic convention in Chicago and the generation gap between the adults who were there to nominate candidates for President and Vice President, and the riotous young people in the streets who wanted, among other things, an end to the Viet Nam War.

I wondered aloud whether the young people were disillusioned with the establishment because their parents had told them, “you can’t fight City Hall.”

Or if they had lost faith in the democratic process because their parents had told them that “politics is a dirty business.”

Those young protesters talked about a sinister conspiracy they called the “power structure,” and I wondered if it was because their parents left government to the experts, thought that government could create wealth out of thin air and that the ineptitude and corruption of public officials could somehow be corrected by the newspapers or the TV, and they didn’t have to get involved.

That was 42 years ago.

The pot smoking students of 1968 are now in their sixties, fretting about their social security, bouncing between Keith Olbermann and Glen Beck, and hoping that somehow they can get out of Iraq and Afganistan, avoid a nuclear confrontation with Iran or North Korea, prevent economic domination by the Chinese, and convince their children to get married and spawn some grandchildren.

That twelve year old girl who went to Battle Creek with me so long ago came visiting with her husband last week end.

We had seventy two hours of titillating conversation, debating, laughing, catching up and just listening to the voices of people we love very much.

Peggy is now a lovely, grown up lady married to a great guy. They have four beautiful, college educated daughters, who seem to be crossing the bridge to maturity just as surely as their mother did.

Maybe, just maybe, we old timers shouldn’t worry so much about the future.