SYRIA? SERIOUSLY?

I don’t read newspapers.

There are only so many bytes of memory left in my hard drive, and I don’t want to waste them on the trash that passes for news these days.

Once in a while I slip. Got ahold of a Wall Street Journal when visiting a friend. It was full of stories about Syria. The lead article was sheer, unabashed propaganda.

“Unnamed sources at the Pentagon,” “a high government official,” “sources close to the White House. ” Two full pages of speculation about how and when and why the President of the United States will be committing an act of war against Syria.

Article I, Section 8 of the constitution of the United States says that the Congress shall have the power to declare war.

Article II, Section 2 says that the President is the Commander in Chief of the Army and Navy of the United States. Nowhere in the Constitution is the President given the power to declare war.

O.K. He can’t declare war. But that is not the question, is it? The question is: Can the President start a war? The President is the Commander in Chief. That means he can give orders to the Generals and the Admirals. Did the framers of the Constitution intend to give the President the power to invade Canada or Mexico or any place else?

James Madison reported that in the Federal Convention of 1787, the phrase "make war" was changed to "declare war" in order to leave to the Executive the power to repel sudden attacks but not to commence war without the explicit approval of Congress.

We’re not talking here about repelling an attack. Or even about responding aggressively to an attack. Although remembering the Alamo, the Maine and Pearl Harbor all involved actual declarations of war by the Congress.

No, the question here is, “Does the constitution authorize the President to start wars?

I don’t think so. I don’t think that the Founders of our nation intended to empower the President to embark on military adventures or prosecute geo-political warfare. And I am morally certain that neither the American people nor their Representatives in Congress would approve of committing American lives and fortunes to the Syrian civil war.

The preamble to the Constitution which the President is sworn to protect and defend announces that its purpose of to “provide for the common defense.”

There’s nothing about spreading democracy or Christianity or capitalism or freedom all over the planet.

Three days before he left office, President Dwight D. Eisenhower addressed the American people. His final farewell is often remembered as the speech about the military-industrial complex.

What Ike said that day bears repeating and remembering. He noted that, in his time, the United States had developed a huge armaments industry. His words:

This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence -- economic, political, even spiritual -- is felt in every city, every State house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society. In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the militaryindustrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

When a prestigious newspaper carries unattributed puffing in favor of military action, when nightly news programs host a parade of retired generals to ruminate about strategy, when the Secretary of State and the Vice President publicly herald the launching of missiles, I have to ask the obvious question:

Who will profit?

MY FRIEND FRITZ

A high school buddy who played trumpet in the band. Half way through his ninth decade, he can still coax a tune out of his horn when the occasion calls for it.

Like most of the remnant of our 1947 graduating class, Fritz is a solid citizen, long married, lots of family, patriotic, saves his money, pays his taxes, supports the Church. Did his time in uniform.

And worries about America.

Every few weeks, I get an email from him. Some of them are shrill, unSnoped propaganda.

But not all. And when he weighs in about Benghasi, or the bureaucracy, or the IRS, he gives voice to the frustration so many Americans feel these days.

And he usually ends up with a call to arms.

Much as he loves me – and he does – he is quick to say that my dogged preachments about constitutional reforms are a fool’s errand, and the only message that will get through to the powers that be in Washington will come when the citizens rise up.

He is not alone. I know some golfers who spend almost as much time at the shooting range as they do on the driving range.

They know that the second amendment was not written to accommodate duck and deer hunters, but to allow Americans to defend their homeland from the enemies of liberty.

Including, if necessary, their own government..

Indeed these are perilous times.

The blogosphere shows a campy interest in the quote by Thomas Jefferson to the effect that an uprising like Daniel Shay’s 1786 Rebellion in Massachusetts ought to happen every twenty years or so.

Just to keep the tax collectors on their toes.

Historians suggest that Shay and his musket toting farmers rang the death knell of the Articles of Confederation and set the stage for the adoption of the constitution written in Philadelphia in 1787.

That constitution distinguishes us from every other nation on the planet.

As Alexander Hamilton said, our constitution made history.

It birthed a nation with words on a piece of paper instead blood in the streets.

Most often, politics is a bloody business. History books are full of it. So is the nightly news on television. Egypt, Libya, Yemen, Syria. People killing and getting killed over who is in power.

For many Americans, presidential politics is the sport of choice.

No sooner had Barack Obama been elected to a second term, than speculation about the Presidential election of 2016 began.

Hillary Clinton, Michelle Obama, Chris Christie, Marco Rubio. Who will run? Who can win?

The President of the United States is the celebrity’s celebrity.

Frequently hailed as the most powerful human being on the planet, the occupant of the Oval Office is revered, feared, obeyed, envied, and, of course, hated by more than a few.

In most of the world and throughout most of human history, kings and rulers have been deposed and replaced by force and violence.

And not a few have stayed in power by ruthlessly dispatching their opponents and enemies.

It’s not that way in the U.S.A. At least, not yet, Thank God.

As my old law partner used to say, “Eternal vigilance is the price of freedom.”

It’s good to have Fritz standing guard.

KEEPING FAITH

The fifty-five men who met in Philadelphia and wrote our federal Constitution knew what they were doing.

They were drafting a charter for a new nation.

Defining its powers. Spelling out how its leaders were to be chosen and specifying what they could and could not do.

Nobody ever did it before. They were writing on tabula raza, a blank piece of paper.

To be sure, adopting constitutions was a process familiar to the Founders.

In May of 1776, the Continental Congress had advised all thirteen colonies to form governments, and the colonial legislatures went to work writing and adopting state constitutions.

By 1780, every colony had a constitution. They were thirteen sovereign and independent states.

But the United States was not then a single nation. It was called a ’firm league of friendship,’ a confederacy, in which each state retained its freedom and independence.

Creating a nation was virgin territory. Novel. Untried.

Alexander Hamilton put it this way:

It has frequently been remarked that it seems to have been reserved to the people of this country, by their conduct and their example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

And George Washington wrote this:

…the citizens of America…are…actors on a most conspicuous theatre which seems to be peculiarly designated by Providence for the display of human greatness and felicity. This is the time of their political probation. This is the moment when the Eyes of the whole World are turned upon them.

They intended the constitution to be permanent, but they never claimed it was perfect. James Madison said:

A faultless plan was not to be expected. That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided.

Hamilton, again:

I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom of the individuals of whom they are composed.

In 1816, Thomas Jefferson had this to say:

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book reading; and this they would say themselves, were they to rise from the dead.

The Articles of Confederation were simply a treaty, an agreement among thirteen sovereign states. They could not be amended except by unanimous consent.

The Constitution was different. It was to be amendable. In fact, the first thing Congress did was to propose twelve amendments.

Two hundred years after the constitution was ratified the voice of Ronald Reagan was heard:

Indeed, we gave birth to an entirely new concept in man’s relation to man. We created government as our servant, beholden to us and possessing no powers except those voluntarily granted to it by us. Now, a self-anointed elite in our nation’s capital would have us believe we are incapable of guiding our own destiny. They practice government by mystery, telling us it’s too complex for our understanding. Believing this, they assume we might panic if we were to be told the truth about our problems.

Finally, a quote from old Ben Franklin, who was asked what the convention had created:

A Republic, madam. If you can keep it.

On these pages I ask the questions, “Have we the will? Shall we keep it?

FATHERS DAY

Driving North after a joyous family celebration at daughter Ellen’s house. In the back seat, a box of old files somebody found in their basement. I asked Polly to poke around, read some stuff. Jog some memories.

This one, written after an unsuccessful judicial election campaign, seemed especially apropos.

March 4, 1957

Civic Leadership Club

Holy Redeemer High School

Detroit, Michigan

Gentlemen:

I am enclosing a check for $14.65 representing the balance of your obligation to the student council fund for postage purchased on my behalf. Of course, it would be more satisfying to me to be able to express my thanks to you by enclosing a much larger check for your own treasury. Unfortunately, this is impossible at present.

But perhaps I can give you a few thoughts which, while they will not make your club any more affluent, may be of some help in advancing you, individually and as a group, toward your goal of leadership in the community. Remember first of all, that leadership is not an end in itself, but only a means to an end. The more successful you are in becoming leaders, the more certain you must be of the direction in which you are leading. And this is the awful responsibility of leadership.

The fact of that responsibility was brought home to me in a most unforgettable way when I was about your age.

When I was a freshman in college, a group of us fell into the practice of skipping classes and going over to Windsor to spend the day acquainting ourselves with the subtleties of the Canadian distiller’s art, by sampling their products in heady profusion.

None of us were of age to purchase the spirits, but I was amply endowed with the desire to be the ‘big shot’ and having purloined my older brother’s ID, I was the one who bought the bottle.

In due course, as it always happens, my father learned of the escapades and I was called on the carpet.

Here I should say a word about my father. I won’t bore you with the old joke about his being very stupid when I was 18, and learning a great deal by the time I was 21.

I will say, however, that when I was 18, I was scared to death of him, mostly because of an uneasy feeling that he was usually right and I was usually wrong.

In those days, if you had asked me to describe my dad, I think I would have simply said, “He is my father.” While I usually called him ‘Dad’ I never really thought of him as a “Dad.” To me, the word ’father’ meant the source of all money, all punishment, all favors, all disfavor, and all respect.

Somewhere along the line in these last ten years, my opinion of him has changed. I think today I would describe him simply as a ‘real man’ with all the nobility, the courage, the tenderness, and the strength which that expression implies.

Perhaps that’s all he ever was, and perhaps it was the cocked lamp of my own immaturity which cast his shadow so terribly long in those days.

In any event on that occasion, after pointing out that my big-shotism was responsible for the border crossing incidents, and that without my leadership, there would have been no trips to Windsor and no bottles of hooch, he when on to say, “Son, you are a leader. You don’t realize the power you have. Where you go, others follow. You wanted to go to Canada and they went with you. You could just as easily have led them to Saint Al’s.”

The point of it all is simply this: that a leader from Holy Redeemer High School should be a leader who knows where he is going and has the courage to go there.

Never let yourselves reach a point where you know more about unions, or law, or politics of anything else than you do about your religious faith.

As my father would say, “You know what’s wrong and you know what’s right. Do what’s right.”

Sincerely,

Thomas E. Brennan

A few days later, my check for $14.65 came back in the mail.

The boys said I needed it more than they did.

THE WAR ON TERROR

President Obama’s announcement that we have won the war on terror was not quite as dramatic as President Bush’s deckside declaration on the USS Abraham Lincoln on May 1, 2003.
Under a huge banner reading “Mission Accomplished,” Bush asserted, “ In the battle of Iraq, the United States and our allies have prevailed.”
He took a lot of flack for that. Most of the casualties in Iraq occurred after that speech.
Obama and his minions are fond of saying, “Osama Ben Laden is dead, and Al Qaeda is on the run.”
About as convincing as the Roman Emperor announcing, “We have executed that Hebrew fisherman, Peter, and the Christians are gone.”
The assassination of Ben Laden was a good sound bite, but whether it was good long range policy remains to be seen.
A dead martyr can be more trouble than a live financier.
Donald Rumsfeld was on Hannity the other day.
Smart fellow, he. Said the War on Terror is a lot like the Cold War. It will go on for a very long time.
In the last analysis, we are fighting for the minds and hearts of human beings.
Five years after the 9-11 attacks on the United States, Pope Benedict XVI gave a speech at the University in Regensburg. His subject: the connection between faith and reason.
Quite a scholar, that Pope. Harkening back to 1391, he quoted Byzantine Emperor Manuel Palaiologos asking a Persian Islamic scholar why the Quran says in one place that faith cannot be forced on someone and in another place that infidels should be killed.
The Pope was teaching long standing Christian doctrine: Faith and reason are inseparable. God is rational.
Islamic teaching is different. Their view is that Allah is all powerful. He can do anything, even act irrationally. He could, for example, command humans to worship false gods.
Or commit sin. Kill unbelievers, for example.
Command us to ignore His commandments?
Logic 101. A thing cannot be and not be at the same time.
Benedict took a lot of heat from the intelligentsia who accused him of ratcheting up the war on terror.
In Mogadishu, Somalia, a nun was killed five days after his speech. The killers said nothing, but a ‘senior Somali Islamist’ speculated that the killers were angered by the Pope’s comments.
A month later, a priest was murdered in Mosul, Iraq.
Like the uproar over the Westergaard cartoons in the Danish newspaper Jyllands-Posten, there were lots of protesters, effectively chanting “Death to those who call us murderers.”
Huh?
Less publicized were the many articles, treatises, symposiums and speeches from both sides of the religious divide which used Benedict’s lecture as a starting point for serious, reasonable dialog, discussion and debate.
Rumsfeld was right. This is going to take a very long time.
The battle for human hearts and minds is not a shooting war.
Maybe it’s time for the military to stand down.
And time for the rest of us to hike up our drawers and treat terrorists as criminals, not soldiers.

POLITICS IN COURT

Longer than my usual blogs, the following is a speech I gave in Detroit last week.

It has been twenty five years since then Chief Justice Dorothy Comstock Riley, God rest her beautiful soul, conceived of the idea for a society which would be dedicated to preserving and celebrating the history of the Supreme Court of Michigan.

I had then been an alumnus of the Court for more than fifteen years, and was pleased to join with Dorothy and her beloved Wally to launch this worthwhile endeavor.

And so I am especially honored to have been invited to this microphone, and asked to share some thoughts appropriate to this annual luncheon of the society.

This being an historical society, I have a few things to say about the good old days.

And maybe some thoughts about the where the Michigan Supreme Court ought to be going in the future.

Back in the eighteen nineties, my maternal grandfather, John Emmett Sullivan, ran unsuccessfully for Probate Judge in Wayne County.

Sullivan is best remembered as the Plaintiff in Sullivan v The Railroad, the oft quoted case which stands for the proposition that a lawyer who doesn’t get his money up front probably won’t get paid at all.

Judicial elections were partisan in those days. My grandfather was a Democrat.

So were all the Brennans. Except my father. He worked at the Secretary of State’s office all through the depression.

It was essentially a patronage job, and Joe Brennan was a faithful Republican precinct delegate.

I well remember wrestling on the front lawn of our house on Morley Avenue, defending our support of Landon and Knox against Roosevelt and Garner in 1936.

After law school, I was an unsuccessful Republican candidate for the state legislature, and later for the U.S. Congress against John Dingell in 1955.

When I graduated from the University of Detroit Law School in 1952, there were four lawyers named Brennan in Michigan.

Three of them were Circuit Judges.

Folks said I had a good name and should run for judge, and so I did.

I concede that the name Brennan gave me a head start, but it was hardly a simple matter of putting my name on the ballot.

I lost twice before being elected to the Common Pleas Court of Detroit by a narrow margin of 562 votes in 1961.

Campaigning for judge in Detroit in the late 1950’s and the early sixties taught me that most folks vote for judges on the basis of personal knowledge and recommendations.

Name recognition is important, of course, but mostly because it carries ethnic or religious identification.

I was welcomed at candidate meetings of both political parties.

I well remember the day I campaigned on twelfth street behind the popular democratic Governor, G. Mennen – Soapy – Williams.

I was tagging along with the Governor and a coterie of his judicial appointees.

We came to a drug store which had one of those old fashioned soda counters.

Soapy waded in and shook hands all along the counter, and I followed.

One very large, very black lady took my campaign card and studied it carefully.

Finally she asked me, “Aren’t you the Republican?”

I gulped and said, “Yes Ma’am.”

She looked up from the card with a big smile and said, “Well, you all right!”

I campaigned in black churches, once even preaching on Palm Sunday.

I campaigned at the Dompolski Hall, where I learned how to say, “dobry wieczór, panie i panowie.”

And of course, I campaigned among the Ancient Order of Hibernians, the Friendly Sons of Saint Patrick and the Thirty-Two Counties of Ireland Club, which sponsored a dance every week to raise money for Sister Mary Claire.

I never met Sister Mary Claire.

I always suspected it was a code name for the IRA.

When Governor Romney asked me to run for the Supreme Court in 1966, I was a little worried about accepting the Republican nomination.

I was part of the County Building crowd, the Irish Murphia as it was known.

Running against Thomas Matthew Kavanagh, the quintessential Irish Catholic, Knights of Columbus Democrat, and Otis Smith, the first person of African heritage to be elevated to the Supreme Court, was not exactly a way to build up a political base in Wayne County.

Still, it was a great honor for a 37 year old lawyer.

Governor Romney had appointed me to the Circuit Court. My kids called him “uncle George from the job.” There was no way I could turn him down.

But I did do something that, to my knowledge, no other person nominated for a public office by a partisan political convention has ever done.

In my acceptance speech, I paraphrased a famous line by New York Mayor Fiorello LaGuardia.

LaGuardia was his own man. He made that clear when he said, “My only qualification for public office is my monumental ingratitude.”

I liked that line.

I told the delegates to the Republican convention of 1966 that my only qualification for their partisan nomination was my monumental non-partisanship.

They put me on the ballot anyway.

So I went off on a lonely sixty thousand dollar campaign that no one, least of all my family and I, thought would be successful.

As it turned out, I ran second to Chief Justice Kavanagh, and defeated Otis Smith, probably the nicest, gentlest human being ever to grace the Michigan Supreme Court.

Otis and I became good friends.

He did me a great favor by asking me to retain his secretary, Mary Lou Shepherd.

And he always credited me for getting him a job at General Motors.

His salary as General Counsel was probably more than the whole Supreme Court.

It was during that campaign in the summer of 1966, that I began to learn something of the partisan in fighting that soils the linen of the Supreme Court.

In my campaign speeches, I criticized the Chief Justice for permitting the published opinions of the Court to be sullied by personal bickering among the Justices. Particularly between Justice Theodore Souris and Justice Eugene Black.

I felt that such wrangling was unseemly and that the Chief Justice should have been able to tone it down.

My criticism of the Chief piqued the interest of Justice Black and he began to call me regularly to egg me on.

Eugene Black was an interesting character. A self-educated lawyer, he spent one day at the Detroit College of Law, concluded that it was a waste of time, and went home to Port Huron to intern in a law office until he could sit for the Bar Exam.

He had been elected Attorney General of Michigan in 1946 as a nominee of the Republican Party. And in 1956 he was nominated for the Supreme Court by the Democratic Party.

When I won the election, Gene Black gleefully insisted that I should be a candidate for Chief Justice.

On January 1st, 1967, there were still eight members of the Court. The provision of the 1963 Constitution, reducing the Court to seven members would not take effect until Ted Souris retired the following year.

The Court was split down the middle.

Chief Justice Kavanagh, and Justices Paul Adams, Ted Souris, and Gene Black were nominees of the Democratic Party.

Mike O’Hara, John Dethmers, Harry Kelley and myself were Republicans.

Black insisted that if I could line up the Republicans to support me, he would cast the deciding vote in my favor.

I kept telling him I was too young, and insisting that Mike O’Hara should take the job.

The night before the first meeting of the Court which I attended, I closed the bar at the Jack Tar Hotel trying to persuade Mike O’Hara to accept the Chief Justiceship.

The best I could get from him was a promise to think about it.

At four in the morning he called to say that he couldn’t do it.

About eight hours later, to his shock and amazement, John Dethmers was returned to the office of Chief Justice.

In 1968, Mike O’Hara was defeated by Thomas Giles Kavanagh.

So now there were two Tom Kavanaghs on the Court.

We had to use their middle names. Matthew and Giles. TG and TM. Thomas the Good and Thomas the Mighty.

So in January of 1969, the Court was reduced to seven members.

There was a 4 to 3 Democratic majority, but one of the Democrats was the maverick Gene Black who wanted me to be Chief Justice.

So I was elected, at age thirty nine, the youngest person to hold that office.

Two years later John Dethmers and former Republican Governor Harry Kelley were replaced by two former Democratic Governors, G. Mennen Williams and John Swainson.

And that was the end of what I like to call Michigan’s judicial Camelot.

Certainly there was partisanship on the Court as I’m sure there had been for more than a hundred years before I came there.

It mostly had to do with who was chosen Chief Justice.

And of course, in classically partisan issues like reapportionment.

But the revolution of judicial activism that began with the appointment of Earl Warren as Chief Justice of the United States in 1953 had only begun to trickle down to the state courts when I was on the bench.

The unapologetic assertion by judges and academics that it is the proper function of courts to look for emerging public consensus and then declare new rights and new obligations, has spawned a novel and disturbing kind of partisanship in our courts.

Deciding cases and controversies between litigants has given way to weighing in on hot button political and social issues.

That infection has metastasized from Washington D.C. to Sacramento, Albany, Harrisburg, Columbus, Lansing and elsewhere.

As a result, a judicial campaign that cost less than twice a year’s salary in my day is now tallied in the millions, even tens of millions of dollars.

Money begets power and power begets money.

That’s why partisan politics is all about money.

But referees and umpires do not wear the uniforms of the contesting teams, and judges ought not to be labeled as adherents to any political party.

They shouldn’t think of themselves in partisan terms, and they shouldn’t act that way.

Recently a distinguished committee headed by former Justices Jim Ryan and Marilyn Kelly wrestled with the long percolating problem of judicial selection at the Michigan Supreme Court.

After much study, discussion and debate the committee recommended the adoption of a non-partisan Primary Election for the Supreme Court just as we have for the Court of Appeals and all of the trial courts.

It’s a simple change.

Doesn’t require a constitutional amendment.

It can be done with ordinary legislation.

I urged it more than forty years ago as Chief Justice.

The State Bar endorsed the idea long ago and still supports it.

If I had not resigned in 1973, I would have had to run for reelection in 1974. I had already given a great deal of thought about what I would do in that election year. My plan was rather simple.

My strategy was to go to both the Republican and Democratic conventions and ask for their endorsement and support, but to refuse to be nominated by either party.

The constitution permits an incumbent Justice to get on the ballot by filing a simple affidavit of intent to be a candidate.

That is what I would have done.

It was not an entirely idealistic thing to do.

As I saw it, only one of three things could happen.

If neither party nominated a candidate, I would have been reelected without opposition.

If both parties nominated candidates, it would have been a three way race in which I would be designated on the ballot as the incumbent, a very favorable situation.

And if only one party nominated a candidate, I would effectively become the candidate of the other party, with the additional benefit of having made a friendly overture to the party of my opponent.

Moreover, I would have had, in either event, a solid issue on which to campaign: keeping the Court out of politics.

I believe that with the publication of the Ryan-Kelly Committee Report on Judicial Selection, it is time for the Supreme Court of Michigan to step up and do something.

It is time for the Supreme Court to dig itself out of the ditch of partisan politics.

I urge the Justices to adopt a sense of the Court resolution, asking the political parties to refrain from nominating candidates to oppose incumbent Supreme Court Justices, and expressing the unanimous commitment of the seven members of the Court to rely only on the constitutional affidavit of candidacy in future elections.

I believe that such a resolution would be met with widespread, if not universal public support.

It would be trumpeted as a decision to take the Court out of partisan politics, to make the Court truly non-partisan.

It would bolster the public image and prestige of the Michigan Supreme Court in a way that no other single action can do.

It would announce to our profession and to the public, that in the Michigan Supreme Court, the Party is over, and a new era of non-partisan jurisprudence has dawned.

That action would trigger serious discussion and action in the legislature to create a non-partisan Supreme Court Primary election.

Experience shows that competent judges are hardly ever opposed in non-partisan primaries.

If a judge enjoys favorable repute among the lawyers, they leave him or her alone at election time.

Not true in the Supreme Court with party nominations.

The roster of able, dedicated and accomplished Supreme Court Justices who have been defeated at the polls is long and unhappy.

That roster includes the great Justice Thomas McIntyre Cooley who was defeated largely through the efforts of the Detroit News against which he had ruled in a libel case. In my time, it includes Clark Adams, Otis Smith, Paul Adams, Mike O’Hara, John Dethmers, and Thomas Giles Kavanagh. More recently, Larry Lindemer, Alton Davis and Chief Justice Cliff Taylor were voted out.

By contrast with all of that political blood letting, no incumbent Judge of the Michigan Court of Appeals, to my knowledge, has ever been defeated at the polls.

The sense of the court resolution which I recommend, would not only burnish the reputation of the Court. It would effectively safeguard the tenure of incumbent justices.

It would relieve them of the distasteful groveling associated with nitty gritty political campaigning.

Most important, it would get them out of fundraising.

It would get them out of the unholy business of asking for money.

And remembering who gave and how much they gave.

That resolution would not make Michigan’s high court the most non- partisan in the land.

We would still have unfettered gubernatorial appointment to fill vacancies.

The 1963 Constitution, before it was amended, abolished gubernatorial appointments and required that vacancies be filled by non-partisan election. Retired judges would fill in until a successor was elected.

Unfortunately, there weren’t enough retired judges and gubernatorial appointment was reinstated.

There isn’t any perfect system.

Everybody is somebody.

We all have our own predilections, prejudices and preferences.

But a wise public policy should try to lower the odds. That’s what Jim Ryan and Marilyn Kelly and their distinguished committee tried to do.

They came to the conclusion that, in a republic, courts need to have the acceptance and approval of the people.

Judges have no armies and courts have no taxing power.

The heartbeat of the judicial system is the confidence of the people.

The people of Michigan want to elect their judges on non -partisan ballots.

It’s the right thing to do.

And it’s time for the sitting justices to take the lead.

The honorable Charles Levin is the only person still living with whom I served on the Michigan Supreme Court.

He has the distinction of being the most non-partisan member of the Court.

He formed his own party, held a convention in his basement and got himself nominated.

We didn’t agree on many things when we sat together, but I will venture a guess that he supports the recommendation of the Ryan-Kelly committee.

Perhaps he would even concur – separately, of course – in my advice to the sitting justices.

In any case I will relish debating it with him.

For that opportunity and for everything else it has done in twenty-five years, I thank the Society and especially its distinguished President, and my dear friend, Wally Riley.

A NOTE FROM RICHARD

Celebrating our 62nd wedding anniversary, Polly and I went to Mass at Sacred Heart in downtown Tampa.

It’s a lovely old church, with all the stain glass and statuary we old timers associate with our Catholic faith.

Getting settled in our pew, Polly discovered a note in the hymnal pocket. Obviously hand written by a young child, the message was clear and curious.

Here’s what it said: Kate: Dear Sis, I love you and forgive you. Love, Richard.

Made for an interesting chat at brunch later.

Forty boys and girls had made their first communion the day before. We guessed that the note was left by one of those children, newly admitted to the community of Christians, who was clearing the decks of conscience in preparation for receiving the sacraments.

Polly handed the note to me and whispered, “This calls for a blog.”

So here it is.

“I forgive you.”

I wondered who I would say those words to.

Frankly, I could think of no one.

Funny. I’ve been around this old place for eighty-three, going on eighty-four years. I know I have taken more than a few hits that left hurts, bruises, even scars.

But I’m dogged if I can call any to mind.

The old joke is that Irish Alzheimer’s consists of forgetting everything but the grudge. If so, I’m either not very Irish or not yet afflicted.

I seem to recall my father telling me, when I complained about bullies in the neighborhood, that I should simply forget their names. It really works. Hard to remember being mad at somebody when you can’t recall his name.

As a judge, it was often my duty to pronounce sentence on people convicted of crime. More often than not, they would have pled guilty, if not by way of throwing themselves on the mercy of the court, then more likely as a condition of a plea bargain to get out from under a more serious charge.

Our criminal justice system is founded on humane principles. It’s not a matter of revenge or retribution. We send people to a ‘penitentiary’ operated by the department of ‘corrections.’

A penitentiary is a place to do penance. It’s where people do time to make up from doing wrong.

In the Catholic tradition, penance is the price of forgiveness, given in response to contrition.

In theory, a criminal who pays his debt to society, if not forgiven, is at least reinstated as a member of society.

One wonders how the families of people killed in terrorist attacks are supposed to feel. How do you forgive the unforgivable?

When the law has run its course, when the culprits have been caught and convicted, when the full and proper process of criminal justice has run its course, how should we feel?

Should our guts be twisted with resentment and anger?

Should we harbor hatred, and the insatiable urge to visit murder and mayhem on anyone and everyone connected with those who do us harm?

Hammurabi’s code is famously remembered for the dicta “an eye for an eye and a tooth for a tooth.”

It is quoted in these times as justifying vengeance. In truth, the admonition was that revenge should be limited by the scope of the injury.

In short, Hamurabi was advising against escalation of feuds. Or as the old Irish ballad bemoans, “an eye for an eye and another for another until everyone is blind.”

The truth is that there is evil in the world. Sin is as much a part of nature as tsunamis. People do bad things.

But that’s because people are designed to be free.

If someone invented a pill that would prevent human beings from wrongdoing, would you take it? Would anyone?

Isn’t the right to do wrong the very definition of liberty?

Totalitarian governments may promise safety and security, but at what price?

In the last analysis, forgiving is not what we do for someone else. It’s what we do for ourselves.

It’s the balm that soothes aching hearts.