A Presidential Moment, A Foreign Policy Dilemma

Democracy is a disorderly form of government, often inefficient, always frustrating. Maintaining liberty and security, governing in such a manner as to achieve desirable political outcomes and at the same time military effectiveness, is among the most difficult dilemmas of human governance. – Professor Richard H. Kohn, University of North Carolina at Chapel Hill (An Essay on Civilian Control of the Military, 1997).

President Obama was right to dismiss General Stanley McChrystal as commander of U.S. forces in Afghanistan. It is a fundamental principle of all free and democratic societies that military authority be subordinate to civilian rule and a government elected by the people. The General’s disdain for his civilian counterparts and the lack of respect on display by McChrystal’s staff in the Rolling Stone profile were alone cause for dismissal; worse was McChrystal’s poor judgment in allowing the reporter such unguarded access. It is no surprise that certain uniformed personnel – military officials, police officers, and those on the front lines of dangerous missions – out of frustration or fatigue sometimes speak contemptuously of civilian leaders. But such conversations are expected to occur in private, away from journalists and microphones.

The purpose of the military is to defend society, not to define it. Civilian control allows a nation’s popular will to define its values and to set policy, even if contrary to the desires of its military leaders, whose institutional values are, by necessity, anti-democratic. The United States Constitution makes explicit this premise. The President is the “Commander in Chief of the Army and Navy of the United States” (Art. II, Sec. 2). Congress alone is granted the power to “declare War”, “[t]o raise and support Armies,” and “[t]o provide and maintain a Navy” (Art. I, Sec. 8). “The greatest danger to liberty is from large standing armies,” declared James Madison during the constitutional convention in 1787. The Founding Fathers countered the threat of an unfettered military by embedding in the Constitution the principle that military authority remains subservient to the two branches of government elected by the people.

Essential to civilian control is the military’s embrace of its Constitutional limits. We are endowed in the United States with a highly trained and professional military establishment; one committed to political neutrality, with unhesitating loyalty to the Constitution and the democratic system of government its job it is to defend. Of course, military leaders in democracies often possess great public credibility; this has been true throughout most of America’s history. And given the complexity of modern day warfare, military technology, and geo-political strategy, the military’s expertise is called upon, and often relied upon, by the president and Congress in setting strategy and deploying resources to counter threats to American security. A good president must know when to defer to military advice and when to push back. But in the final analysis, it is always the president’s call. Military leaders can and should forcefully advocate their positions and reasoning to the President and his advisers, but they must willingly accept and faithfully execute the President’s decisions. Once the line is crossed and a general’s disagreements become publicly aired, he or she risks and usually deserves reprimand or dismissal.

American history is replete with examples of presidents displaying the upper hand in public spats with their generals. During the Civil War, President Lincoln fired Union General George McClellan after McClellan repeatedly refused Lincoln’s orders to more aggressively fight Confederate forces (it did not help matters that McClellan often referred to the president in letters as an “idiot” and a “gorilla”). In 1951, President Truman fired General Douglas MacArthur after MacArthur publicly assailed Truman’s refusal to invade and attack China directly during the Korean War. Similar incidents of lesser fame include President Lyndon Johnson’s dismissal of General Curtis LeMay in 1965 after LeMay publicly criticized the White House for not carpet-bombing North Vietnamese cities. And just two years ago, President George W. Bush forced the resignation of General William J. Fallon, head of the U.S. Central Command, after Esquire magazine profiled Fallon as the Administration’s sole voice opposing an attack on Iran (a matter that, even if true, was not for public consumption and potentially undermined Bush’s strategic planning).

Although some commentators have compared Obama’s firing of McChrystal with the Truman-MacArthur feud, I do not believe this analogy apt. Truman was concerned that broadening the Korean conflict would provoke the Soviet Union and raise the specter of nuclear war, a very real concern in 1951. MacArthur wanted to take the war to China and, possessed of an inflated ego exacerbated by his popularity following World War II, believed he was essentially immune from presidential authority. After publicly criticizing the president’s conduct of the war on several occasions, MacArthur wrote a blistering attack on the president’s strategy in a letter to the House Minority Leader, declaring that Truman’s refusal to expand the war into China imposed “an enormous handicap, without precedent in military history.” When MacArthur then publicly threatened Beijing with “imminent military collapse,” Truman finally had enough and relieved the general of his military command. “I didn’t fire him because he was a dumb son of a bitch – although he was,” Truman later explained. “I fired him because he wouldn’t respect the authority of the president.”

The Obama-McChrystal incident does not rise to the level of the Truman-MacArthur feud. Indeed, the President commended General McChrystal for his past service and emphasized that theirs was not a policy disagreement. But Obama believed that McChrystal’s actions constituted a serious enough breach of respect for the Office of the President and the entire civilian leadership that it warranted his dismissal.

Overlooked in the McChrystal affair, however, is not the general’s contemptuous and public disrespect of civilian command; it is, instead, the questionable strategy being employed in Afghanistan – counterinsurgency – a policy endorsed by the President and McChrystal’s successor, General David Petraeus. Counterinsurgency calls for sending large numbers of ground troops to both sniff out and destroy the enemy, while also living among the civilian population and slowly rebuilding the nation’s government. Even its staunchest advocates admit that this is a process that will require years, if not decades, to achieve. It demands of the U.S. military not that it defend a nation, but that it build one. It requires our armed forces to handle not only the military and security side of warfare, of which they are very good, but also the diplomatic and political side of governance, of which they are neither equipped nor particularly skilled.

Vice President Biden has contended, correctly I believe, that a prolonged counterinsurgency campaign in Afghanistan will plunge the United States into a military quagmire without weakening the international terrorist network, which is presently more extensive in places like Yemen. The question becomes, therefore, not who is in charge, but what is America’s endgame in Afghanistan? And how do we measure progress?

The military conflict in Afghanistan has been officially declared the longest war in American history. While this is true only if one measures the Vietnam War from the Gulf of Tonkin resolution in 1964, our involvement in Afghanistan extends longer than World War II and the Korean War combined. Afghanistan is not the deadliest of American conflicts, but the costs have nonetheless been substantial, costing the lives of over 1,000 American servicemen and women, tens of thousands of Afghan civilians, and hundreds of billions of dollars from the public treasury. Yet we risk having in the end achieved very little from when we first invaded Afghanistan. According to recent reports in the British press, prior to his dismissal, General McChrystal acknowledged that progress over the next six months is unlikely and that serious concerns continue to exist over the levels of security, violence, and corruption of the Afghan administration.

The problem with the McChrystal incident, then, is not so much about a disrespectful general as it is a failed policy with little chance of success. The president’s critics are likely correct that setting a firm deadline for withdrawal is counter-productive to our stated mission. But I do not believe for a minute that we will be ending our occupation of Afghanistan any time soon, even if some troops start to come home in July 2011. Nine years into the conflict, it remains difficult to detect much improvement to American security. For every innocent civilian we kill through collateral damage, mistake, or an errant missile (even as precise and careful as our military professionals try to be), the seeds of further terrorism are planted.

If victory has not been achieved after nine years, I fail to see how we can ever accomplish it under current strategy. Terrorist cells continue to exist around the world; al-Qaeda leaders continue to hide in the mountainous terrains of northwestern Pakistan, a country that we do not fully trust and that is, at best, lukewarm to our efforts in the region. We have diverted badly needed funds to a failed military effort that could otherwise help educate our children, create jobs, rebuild our nation’s infrastructure, promote a green economy, and reduce our dependence on foreign oil. As I have said before on these pages, we could do so much more to enhance the security of the United States if we instead focused our efforts on building schools for Afghan children. The long-term solution to terrorism and militant fundamentalism in general, and Afghanistan in particular, is education and economic opportunity. A policy that relies upon long-term military power to bolster a corrupt government is destined to fail.

The Man From Jersey City

When a man has done his best, has given his all, and in the process supplied the needs of his family and his society, that man has made a habit of succeeding.-Mack R. Douglas

My father was born in Jersey City in 1929, three months before the stock market crashed. “Dad was born and the world went into a Great Depression,” I have often quipped. Twenty years earlier, his father, alone and only nineteen years old, left Denmark for the United States in search of work and economic security. My grandfather spoke no English when he arrived on the shores of Ellis Island, but through perseverance and the will to succeed, he found work as a carpenter, formed a family and created an American life. A quiet, kind-hearted man, with gentle mannerisms that contradicted his strong, calloused hands, I know little else about my grandfather. He died before I was born and my father has never told me much about him; his father rarely discussed his European roots and early struggles with his youngest son, which may explain why I have never possessed a strong ethnic identity even though that part of me is a second-generation American.

It was from my father, however, that I developed an interest in history – listening to his stories of growing up in a Jersey City row house during the Depression; of playing stick ball in the street and rooting for the New York Giants when they played in the Polo Grounds; of working at a pencil factory in the 1940’s when his two older brothers went off to war, one never to return. “You remind me of your Uncle Ted,” he has told me on occasion, with a sad look in his eyes, pained by thoughts of what might have been. “Everybody loved and respected Ted,” my mother would add.

My father was the first in his family to attend college, and it was a scary moment when the skinny 17 year-old kid from Lincoln High School first boarded a train for a southern Ohio town, having never ventured further than New York City. Arriving at Wittenberg University in 1947, its lush, green lawns and tree-filled campus amidst stone buildings and walkways, it was unlike anything from his prior citified existence. Over the next few years, he befriended returning vets studying under the GI Bill and divided his time between studies, part-time work, and fraternity life. In what may have been his most impressive move, at Wittenberg he met and proposed to my mom. It was my dad’s good fortune to have married up, much to the chagrin of his future father-in-law. A life-long love affair secured, he went on to three years of seminary education and, in 1953, became an ordained Lutheran minister, his professional calling.

The ministry was an odd mixture of success and disappointment for my father. He faithfully served four congregations in New Jersey, New England, and Virginia. He preached to and counseled professors and students, farmers and business executives, millworkers and janitors, Congressmen and even a Supreme Court justice, treating each as equal members of God’s family. He was elected Bishop of the New Jersey Lutheran Synod in the early 1970’s, a volatile time in our nation’s history and in church-state relations, when the Church was embroiled in issues of racism and civil rights, gender equality, war and peace, the sexual revolution, drugs and poverty – the same issues then enveloping the country. He helped young men conscientiously opposed to the Vietnam War develop alternative service options. He helped pastors struggling with personal and family problems, and mentored seminary students and young ministers who privately doubted their chosen paths. He confronted and overcame challenges posed by the growing alienation of our youth, rising divorce rates, changing social mores, growing secularism and a heightened skepticism of all things religious. He fought against the rising tide of Christian fundamentalism, a battle he continues to fight today in the Bible-Belt South. And he encouraged congregational leaders and choir directors to experiment with liturgy, music and worship styles to ensure that the Church remained relevant and connected to modern humanity.

Despite reaching the top of his chosen profession, I have always detected a sense of frustration deep within him; that somehow his labors were not fully appreciated and that, especially in retirement, his talents were not fully utilized. “The ministry is a very misunderstood profession,” he warned my brother when Steve first considered following my father’s example. “No one appreciates how much work and effort is involved. Most people think you work one day a week. People rarely praise you and they can be very critical.” For my dad and many of his contemporaries, the desire to preach prophetically and to act boldly in the face of social and economic injustice was under constant attack by existing power structures from within and outside of the Church.

When I was younger, my friends found it hard to believe my dad was a minister. Possessed of a lively sense of humor, his language occasionally reflected his Jersey City roots; it was . . . shall we say . . . salty, a bit impure, with an emphasis on his secular side. A sea of calm during times of crises and periods of great stress, he possessed an explosive temper that erupted only over trivial matters, such as when he misplaced his keys or broke his shoestring. Now in his twilight years, he has mellowed some, his body tired, his soul more contemplative. (“Oh, I don’t know about that,” I can hear my mom saying right now.)

But anyone familiar with my dad also knows of his enormous sense of compassion, empathy, and profound understanding for the sufferers among us, for those who are sick, or poor, or have lost a loved one. He is a great listener, a trait that has served him well in counseling and comforting people in need. Like my mom, he is compelled to serve. Even in retirement, a status he embraced only reluctantly, Dad was the president of the local chapter of Habitat for Humanity and, subsequently, president of Mainstay, a shelter for battered women in western North Carolina. He served as the interim pastor of three different congregations and, with my mom, continues to volunteer each week at the local soup kitchen.

I often wonder why he sometimes doubted his decision six decades ago to enter the ministry. Had he gone into business or banking, he likely would have become CEO and made a lot of money; had he become a teacher, he would have risen to principal or school superintendent. I believe he could have done most anything he wanted, given his straightforward determination and hard-driven work ethic developed in his formative Depression-ridden years.

A city boy who grew to despise cities, Dad chose to retire with Mom and their dog in a small country town in rural North Carolina, away from the congestion of metropolitan living. The son of an immigrant with little interest in his family’s heritage, he extends sincere interest to the backgrounds and stories of others. A man who has committed his entire life to the Church and to serving others, he refuses to let others serve him, and he becomes frustrated with the Church’s unresponsiveness to social ills and injustice. A tendency to focus on the negative, always moving in the opposite direction of his roots, my father is at times an enigma. He has been vaguely discontented with his life’s accomplishments, never realizing how much the people whose lives he has touched along the way respected and admired him.

But of all my dad’s career and life accomplishments, his most lasting legacy is the love and support he provided, along with my mom, to his three children. No matter how busy he was, regardless of his many late night meetings, he always made the time to join us for dinner and to ask about our days. He went out of his way to watch my brother and I play in our countless baseball and basketball games and other sporting events, which seemed to consume 365 days a year through high school. Along the way, he prodded but never pushed, nudging us in directions he thought we should go. Although I did not always appreciate it then, upon reflection I know now that my dad possesses a level of judgment and wisdom exceeding most mortal souls, gained from years of insight into the mistakes and milestones of the many families he has counseled and consoled along the way. He gave each of his three children the freedom to choose our own paths, to make our own mistakes, secure in the knowledge that, whatever we did, however we succeeded or failed along the way, we could always come home to the embrace of unconditional love. As award winning photographer Anne Geddes once said, “Any man can be a father, but it takes someone special to be a dad.”

Eat Bananas and Follow Your Heart: An Imaginary Commencement Address

I have never been asked to deliver a commencement address, an honor typically reserved to those who have achieved great public acclaim. But if ever I was asked, I probably would say something like this:

Congratulations to the Class of 2010. You are young and beautiful and full of life. You may not think so, but trust me, when you look back at your photographs thirty years from now, you will look in amazement at how young and truly beautiful you are. My heart goes out to you.

I sat in your place 29 years ago, pressed between 500 graduates, each of us uncertain of our future and unaware of our destiny, during an uninspired time in our nation’s history. The generation before had bequeathed us Vietnam and race riots, the dethronement of Camelot and the murder of a King, Kent State and Watergate, gas lines and oil embargoes, the Iranian Hostage Crisis and Three Mile Island. Ronald Reagan was our new president, elected on an anti-government platform that devalued public service. Consistent with the day’s prevailing sentiments, I chose practicality over passion, with business school in my immediate future. After accepting my degree, I departed the commencement stage unmindful of the tortuous paths my life would soon take.

Much has happened since that warm June day in 1981. However grateful I am for the joys and opportunities life has bestowed, I remain, in some ways, the same insecure student unsure of his direction in life, as apprehensive today as when I hugged my classmates goodbye. It is too soon for history to judge my generation, to know if we have built lasting legacies and positively contributed to future generations. For me, the final chapter has yet to be written. I envy that you begin today with fresh chalk and a clean slate, an unwritten tablet upon which to carve your story. The future is yours.

Any advice I divulge should be taken lightly, for in the words of the great philosopher Groucho Marx, “Time flies like an arrow. Fruit flies like a banana.” So to America’s future I present here a few slivers of wisdom collected through the years, offered with a strong dose of humility and a hint of hopefulness:

Eat bananas. This may be the best advice I will ever give you. Bananas are high in potassium and good for your heart and nerves, kidneys and bones; a great source of vitamin B6, bananas are good for your blood; and they are a great source of dietary fiber. So, if you remember nothing else, listen to me about the bananas.

Follow your heart. Your time here is limited. Don’t waste it trying to live someone else’s life, or someone else’s dream. Don’t let the noise of other people’s thinking drown out your own inner voice.

Be at peace with your own mortality. Embrace it. Death is the only certainty in life, a destiny we all share. No one, not kings or noblemen, presidents or sports stars, has ever escaped it. Trust me on this, even more than on the bananas. Life is short and moves quickly. Maintaining an awareness of your mortality can help with the big choices in life. Steve Jobs, who a few years back confronted and overcame cancer, wisely noted during a real commencement address at Stanford University in 2005: “Everything – all external expectations, all pride, all fear of embarrassment or failure – these things just fall away in the face of death, leaving only what is truly important. Remembering that you are going to die is the best way . . . to avoid the trap of thinking you have something to lose. You are already naked. There is no reason not to follow your heart.”

Follow your heart, but don’t completely ignore your head. Pursue your dreams, but fulfill your obligations. Understand the importance of real income, but do not devalue your psychic income – the level of satisfaction derived from a job. Many of life’s decisions are dictated by money – how much you have, how much you need, how much you owe. Money is, for most of us, a major influence in our choice of careers, where we live, and the number of children we have. I cannot tell you that money does not matter. It does. But look around and you will see that some of the happiest people in the world are teachers and public servants, artists and musicians, journalists and directors of non-profits, aid workers and clergy, people who forsake more lucrative careers for the sake of a satisfying life. Some of the most frustrated, unhappy souls are those who pursue careers for money and status and nothing more. Between European vacations and rounds of golf are dysfunctional lives torn asunder by the devastating knowledge of a life wasted.

This is not always the case, of course. Some people are very content with money. As Russian born actress and singer Sophie Tucker once said, “I’ve been rich and I’ve been poor. Believe me, honey, rich is better!” Money provides freedom and security. It provides for your family. Absent a revolution – and I don’t like your odds if you’re contemplating one – it is a necessary component of our social structure. But how much you need or want is determined by your values. Don’t be fooled into thinking it has anything to do with one's self worth or the worth of other human beings.

Never stop learning. You need not be in school to achieve a Master’s Degree in life. Expand your mind and push your limits. Turn off the television and pick up a book; write a poem; visit a museum; attend a play. Understand and use technology, but don’t lose touch with the traditional tools of learning – reading, writing, travel, study, and reflection. One of my favorite scenes in Dead Poets Society is when Robin Williams lectures his disinterested students on the importance of poetry:

We don’t read and write poetry because it’s cute. We read and write poetry because we are members of the human race. And the human race is filled with passion. Medicine, law, business, engineering, these are noble pursuits and necessary to sustain life. But poetry, beauty, romance, love, these are what we stay alive for. . . . That you are here - that life exists . . . that the powerful play goes on and you may contribute a verse. That the powerful play “goes on” and you may contribute a verse. What will your verse be?

Be skeptical, not cynical. Ask questions. Be cautious of smooth talking salesmen and slick politicians. Avoid gullibility, but don’t assume that you always have the answers. You don’t.

Oppose smugness. To those of you blessed with good health, good looks, and good families, understand that this has as much to do with luck as with anything you ever did or will ever do. To those soon to be blessed with happy marriages, understand that others struggle with relationships. To those soon to be blessed with healthy children and seemingly safe lives, know that others will not be so lucky. Do not take your blessings for granted. Show concern to those for whom life has not been so kind; recognize that we all are a mere phone call away from walking in their shoes.

Don’t feel too guilty about everything. What we used to think of as vices – wine, coffee, and chocolate – turn out to be good for you.

Call your parents. Stay connected to the people you love. Stay in touch with your closest friends. When times get rough, when you falter and make mistakes – and you will – the unconditional love of a parent and the support of a true friend are among the few constants on which you can count. And if you are fortunate enough to have children of your own, you will come to truly understand what I just said.

Choose your role models carefully. Don’t be impressed with celebrity. Seek conversations and ideas, not autographs. A person’s value is defined by character, which has more to do with sincerity and the ability to love, listen, and learn from others, than with society’s attributions of glitz and glamour.

Don’t be afraid of uncertainty. Some of the most creative and intelligent people I know still aren't sure what they really want to do with their lives. What may be important to you today will undoubtedly change when you are older. No one has all the answers, and most who think they do are full of shit.

Keep laughing. It is good for the soul. Laughter is life’s best medicine, almost as good for you as bananas.

Show kindness. It is a sign of strength. Except for presidents, dictators, and Philadelphia sports fans, no one was ever criticized for showing compassion and reaching out to someone in need. The world needs more of this, not less. Never lose sight of our shared humanity. We are all in this thing together. It is not as easy for some as for others. Sometimes really bad stuff happens that throws the universe out of whack. Life is unfair, but it need not be unkind.

Stay engaged. Life is not for spectators. Mix it up a little and live in the arena. There is a small plaque on my mother’s kitchen wall that probably cost her fifty cents at a flea market, but which possesses great wisdom. It is a simply knitted picture of a sailboat floating at sea. The caption says, “A ship in the harbor is safe, but that is not what ships are built for.” Or as Babe Ruth once said, “Don’t let the fear of striking out hold you back.” Simple, corny words, but ones that deserve to be quoted on occasion, for only wise souls know when to apply them.

Strive to be happy. But understand that happiness is a journey, not a destination. If you can bring passion, joy, and optimism to your life, you will succeed. But understand that success is not how much money you make in life, or how many gadgets you acquire and cars you drive, or how many high-powered friends you accumulate. Success is being missed when you are no longer here and leaving something of value behind. If you touch the lives of others, if you make the world a better place, even a little; if you inspire a young child or make a difference in someone’s life, then you will have succeeded.

“Go placidly among the noise and haste and remember what peace there may be in silence.” There is a plaque on Old St. Paul’s Church in Baltimore that contains the words of the oft-quoted poem, “Desiderata” by Max Ehrmann, a famous and beautiful writing, the words to which I never tire of reading. It ends thus:

You are a child of the universe, no less than the trees and the stars; you have a right to be here. And whether or not it is clear to you, no doubt the universe is unfolding as it should.

Therefore be at peace with God, whatever you conceive Him to be, and whatever your labors and aspirations, in the noisy confusion of life keep peace with your soul.

With all its sham, drudgery and broken dreams, it is still a beautiful world.

But don’t forget the bananas.

A Lesson in Grace, Forgiveness, and the Imperfections of Man

The true perfection of man lies not in what man has, but in what man is.
--Oscar Wilde

It is part of the human condition to strive for perfection. We all seek it. We all fall short. In most aspects of life, to achieve perfection is impossible. In baseball, it has occurred 20 times, at least according to the record books. But for anyone who watched the end of last Wednesday night’s game involving the Detroit Tigers and the Cleveland Indians, perfection has happened 21 times. Armando Galaragga, an otherwise mediocre starting pitcher for the Tigers, pitched what amounted to a 28-out perfect game. In that there are only 27 outs in a nine inning game, this was no easy feat. But in the permanent archives of baseball history, Galaragga pitched a 1-hit shutout. Impressive, but not perfect.

James Joyce, the famous author, once wrote, “A man’s errors are his portals of discovery.” Jim Joyce, the first-base umpire who blew the call that should have been the 27th and final out in the ninth inning, recognized his namesake’s wisdom the hard way. Joyce (the umpire) ruled that Jason Donald of the Indians beat out a ground ball that had been hit between the first and second baseman. The replay clearly showed that Donald was out – by nearly two feet – after Tigers’ first baseman Miguel Cabrera fielded the ball and threw to Galarraga covering first. Galarraga and Cabrera clenched their fists and smiled at each other, about to celebrate Galarraga’s feat as the 21st pitcher in baseball history to throw a perfect game – 27 up and 27 down, no hits, no walks, no errors – when suddenly they realized that Joyce called the runner safe. “Why is he safe?” asked Rod Allen, a Detroit television announcer. Then the replays, in slow motion from several different angles, made certain what everyone thought had been obvious to the naked eye – the umpire got it wrong. Donald was clearly out. Galarraga had indeed pitched a perfect game, but the umpire, the other James Joyce, flubbed it. “Jim Joyce – no,” Allen said in a tone of astonished disappointment.

On watching the replays, my first reaction was anger. How could the umpire have made such a terrible mistake? This was an error of historic proportions. But then the camera focused on Joyce, who stood alone, stoic and emotionless, the most unpopular man in the world at that given moment. The home faithful at Comerica Park in Detroit were not pleased with this man in black, who appeared to represent in human form all of the Satanic forces of the universe. Joyce may have been the only person in that stadium, at that moment, unaware of what the replays showed, though you can be certain he was replaying it in his mind over-and-over, convincing himself he had made the right call, hoping for vindication. I suddenly felt sorrow and pity for Joyce, who I knew would soon be the subject of ridicule and hate-filled diatribes, as the lynch mob mentality of angry sports fans, combined with the media-induced dissections of his every move would dominate the airwaves for the next 24 hours. He made a mistake, a costly mistake in the confines of a potentially historic baseball game, but he had not done so intentionally. He had tried to make the right call, courageously ruling the runner safe knowing that his call would end Galarraga’s strive for perfection.

Immediately following the game, before Joyce had a chance to leave the field, angry members of the Detroit Tigers, led by manager Jim Leyland, all of whom by now had seen the replay, confronted Joyce and lit into him. Joyce stood there, stone faced and silent, as he listened to the manager and several players vent their frustration. Joyce took the abuse gracefully, offering nothing in response. One player absent from this confrontation was Armando Galarraga, who offered not one critical word about the seeming unfairness of it all.

After the game, when Joyce had an opportunity to see the replays, he was emotionally distraught and visibly upset. “I just missed the damn call,” he said. “This isn’t ‘a’ call. This is a history call. And I kicked the [expletive] out of it.” Joyce is a veteran umpire with a stellar reputation, one of the best in the business. 99% of the time, he and most other major league umpires get the calls right. But to error is human, and umpiring, like baseball, is a human endeavor. Mistakes are made all the time in life. A person’s character is defined, however, not by the mistakes we make, but by what we do after making them. When told afterward that Joyce felt terrible about the missed call, Galarraga said that he wanted to tell Joyce not to worry about it, that people make mistakes. Joyce, for his part, sought out Galarraga after the game in the Tigers’ clubhouse and apologized.

“I take pride in this job, and I took a perfect game away from that kid over there who worked his ass off all night.” He did not blame the Tigers for being upset at him after the game. “If I had been Galarraga,” Joyce said, “I would have been the first one standing there [screaming]. I would have said something immediately. He didn’t say a word, not one word.” No one felt worse about his mistake than Joyce himself. Galarraga was impressed with Joyce’s humility and sense of integrity. “I give a lot of credit to that guy,” the Venezuelan pitcher said in broken English. “In my heart, I have no problem with him.” He noted the rarity of an umpire apologizing to a player for a blown call after a game. “Nobody’s perfect,” Galarraga said, as he pardoned Joyce of his sin.

Perhaps it was the obvious pain that Joyce displayed for his own mistake after the game Wednesday night, and the knowledge that Joyce’s career will be forever marred by his unforgivable call, which permitted Galarraga, the Tigers and their fans, to offer remission. Joyce was the scheduled home plate umpire the next day, when the Tigers and Indians had a day game. Jim Leyland, in an act of grace and mercy, sent Galarraga to home plate before the game to hand the official lineup card to Joyce. The two men stood together and shook hands. Tiger fans stood and cheered, offering their own form of compassion and forgiveness. Joyce was overcome with emotion; his eyes swelled, he put his hands to his face and rubbed away his tears. Galarraga patted Joyce on the back, and Joyce returned the gesture. It was a small act of contrition by men not accustomed to such acts of solace and humility.

Many people are predictably calling for baseball to institute a new instant replay rule so that such mistakes are prevented in the future. Why should the umpire be the only person in the stadium who is not allowed to see a replay? Why not get the call right? Maybe it will happen. Maybe it is a good idea. The Cardinals were victims of a blown call in game six of the 1985 World Series that led to their loss in the bottom of the ninth and eventual implosion in game seven. Had there then been an instant replay rule, Don Denkinger, the umpire who blew that call, may have rectified the mistake and prevented an injustice. But then again, there is something charming about baseball’s reliance on human beings to make the right calls; had Galarraga been awarded a perfect game following an instant replay review, it would have been fair and just, but it would have deprived us of the acts of human grace, redemption, and forgiveness displayed after the game and by the Tigers and their fans the next day. Perhaps something greater would have been lost, something larger than baseball and record books.

Bad calls have always been part of the game; umpires are rarely the object of our affections. When one side agrees with a call, the other side usually does not. Fans and players are an impossible lot to please. Baseball is a game of imperfection, full of gaffes and brain cramps, fielding errors, running errors, and mental errors. The players, like the umpires, are human and imperfect. But, as Ross Douthat of the New York Times noted, “baseball is also a game where history matters, and where continuity – those mystic chords of memory, connecting the Tiger fans who watched Charlie Gehringer and Hank Greenberg and Al Kaline and Mickey Lolich to the Tiger fans watching Armando Galarraga last night – matters even more.” We sometimes get carried away with analogies to history and the metaphysical significance of the game’s outcomes, but “baseball’s past is real, those mystic chords are real, and a hundred years and counting of bad calls are part of the sport’s history, part of the legacy of glories and grievances that one generation hands down to the next.”

That umpires are human and infallible, and have always been thus, is one of the charming attributes of the national pastime. Call me old school, but I like that the outcomes of games are sometimes determined by a bad call and not by a video machine. It is not always fair, but then life is not fair, and the lessons learned from baseball’s little injustices are often worth the pain and despair. It is not fair that Galarraga will not get credit for a perfect game. But what happened is far more memorable and extraordinary, something that will be talked about for a long time to come.

Best of all, Joyce’s blunder on Wednesday night brought out the best in those most impacted by its unfairness. And it allowed Joe Posnanski, a nationally acclaimed sportswriter, to pen these words:

Galarraga pitched a perfect game on Wednesday night in Detroit. I’ll always believe that. I think most baseball fans will always believe that. But, more than anything it seems that Galarraga will always believe it. The way he handled himself after the game, well, that was something better than perfection. Dallas Braden’s perfect game [earlier this season] was thrilling. Roy Halladay’s perfect game was art. But Armando Galarraga’s perfect game was a lesson in grace.

And when my young daughters ask, “Why didn’t he get mad and scream about how he was robbed,” I think I will tell them this: I don’t know for sure, but I think it’s because Armando Galarraga understands something that is very hard to understand, something we all struggle with, something I hope you learn as you grow older: In the end, nobody’s perfect. We just do the best we can.

Guns and Violence: An American Problem

Nine year-old Eddie Smith* walked home from school on a sunny spring afternoon in 1992 and headed in the direction of his grandmother’s apartment in Barry Farms, a housing project in southeast Washington, D.C. Eddie’s grandmother had lived in the Anacostia section of Washington her entire life and was wise to the dangers that confronted the city’s youthful inhabitants. She frequently admonished Eddie to come straight home after school, determined to keep him under her watchful eye. Eddie cut through a grassy field leading to his home on Sumner Road, when he noticed Kenny Copeland, a 29 year-old drug dealer who drove fancy cars, wore lots of gold jewelry, and flashed wads of cash, driving down the street in his gold Pathfinder SUV. Eddie watched from 50 feet away as Copeland came to a screeching halt, jumped out and, in broad daylight, walked briskly to a parked car, where Lamar Jones* was seated listening to rap music. Copeland pulled from his waist a .45 caliber pistol, pointed at the driver’s side window, and pumped six bullets into Jones’ head. Copeland ran back to his SUV and sped off, leaving exhaust fumes and a dead body in his wake. Three days later, the family of Lamar Jones gathered at the local Baptist Church and mourned the death of their beloved family member. The family wept and wailed in agony, not understanding why God had taken their son and brother, nephew and grandson, whose life was cut short at the age of 25.

Two years later, Eddie Smith was the government’s sole eyewitness in the case of United States v. Kenneth Copeland. I was the prosecutor. On the day of jury selection, about two hours before opening statements were set to begin, Eddie’s uncle was in the witness room with the two FBI agents who had painstakingly worked the case for more than a year as part of a Cold Case Squad Task Force. Based on information supplied by confidential sources and old fashioned detective work, the agents had learned the identity of Eddie and his grandmother. After much soul searching, persuasion, and offers to relocate them to a safer neighborhood with better schools, miles away from the drug-infested, crime ridden streets of Barry Farms, Eddie and his grandmother agreed to testify. But on the day of trial, Eddie’s uncle would have none of it. He said there was no way Eddie was getting on the witness stand. My case was about to fall apart.

During the lunch break, while anticipating what I was to tell the judge about the government’s readiness for trial, and before resuming jury selection, we convinced the uncle that allowing Eddie to testify was the right and necessary thing to do, that otherwise Kenny Copeland would kill again and that, without citizens willing to stand up to these thugs, entire neighborhoods like Barry Farms would remain unsafe. In the end, Eddie courageously testified and identified Copeland as the killer. Despite the best efforts of Mark Rochon, a prominent D.C. defense attorney who failed to shake Eddie on cross-examination, the jury found Copeland guilty in less than an hour. Six weeks later, Copeland was sentenced to 30 years in prison.

The Copeland prosecution was a success, if such a word can be applied to the daily toil of murder and intimidation that occurs in our nation’s cities. In the early 1990’s, murder trials similar to Copeland’s case, in which witnesses were scarce and reluctant, happened every day in D.C. Superior Court; funerals laying to rest sons and daughters before their prime occurred several times a week. The city was in the midst of a crack epidemic accompanied by turf wars and a slew of drug-related shootings that left hundreds of young black men dead and wounded on the streets of the nation’s capital. Lamar Jones was just one of 450 murder victims gunned down each year on the streets of Washington. The Metropolitan Police Department solved less than half of the murders in those years – the District of Columbia was called the murder capital of the United States – as witnesses refused to testify and the anti-snitch culture took root. Most of the murders occurred in the poorest sections of southeast D.C., far from the view of tourists and the plush confines of Georgetown and Dupont Circle. Lawyers, sociologists, journalists, and policy makers debated the root causes of the drug underworld and the cultural influences that contributed to a de-sensitization of violence and dehumanization of its victims. We debated mandatory minimum sentences and demanded that politicians “get tough on crime,” yet the shootings continued.

Sixteen years later, hundreds of young men and women continue to die every year in the District by gunfire and, according to the Centers for Disease Control, over 12,000 Americans die of gunshot wounds annually. Of all industrialized countries, the United States exceeds each in gun-related deaths and violent crime. Despite the number of prescriptions offered to prevent the violence, it is the easy access to guns that make the shootings so prevalent. The strict gun control laws of the District of Columbia had little effect, since anyone could cross the Potomac River and purchase a firearm in Virginia with little effort and no identification. That Kenny Copeland, who already had a murder conviction under his belt – as a juvenile he killed his stepbrother – could so easily obtain a concealable handgun with which to murder Lamar Jones, speaks volumes to this pure insanity.

As a prosecutor in Washington and later Philadelphia, I considered gun violence in America a uniquely urban problem. But a recent article in the journal Pediatrics proves otherwise. A study of gun deaths in the United States from 1999 to 2006 found that children in the most rural areas of the United States die from guns at the same rate as children from the inner city. Although homicides are more prevalent among city youth, gun suicides and accidental gun deaths even the score among rural youth. The study examined data on 15,000 homicides, 7,000 suicides, and 1,400 accidental shootings that occurred over a seven-year period among those aged 19 and younger. The researchers found that children in rural areas die from guns at about the same rate as urban youth – about four deaths per 100,000 children. A previous study showed that adult gun deaths followed similar patterns.

We live in a country that romanticizes gun ownership and glorifies violence. We fought and won a violent revolution, survived a bloody civil war, and forcefully settled the frontier on the backs of native Americans. Today, not a day goes by that we don’t witness gun violence on our television screens and in the movies. The newspapers of all our major cities report tragic gun deaths virtually every day of the year. Yet when someone attempts to question the wisdom of guns and gun ownership, or suggests some modest restrictions on the types of weapons that can be sold or whom can lawfully purchase them, the gun lobby and Second Amendment advocates come out of the woodwork.

Gun proponents contend that gun ownership serves two primary purposes: (1) self-defense from criminals, and (2) protection against political tyranny. Neither contention stands up to scrutiny in today’s world. I understand the desire of some law abiding people to own a gun. If I thought my family was in danger and that a gun could protect them, my first instinct would be to obtain a gun. Emotionally, it is completely understandable. A rational look at the evidence, however, suggests that gun ownership makes one’s family less safe, not more so. Two long-standing, peer-reviewed studies in The New England Journal of Medicine, in 1986 and 1993, found that having a gun in the home makes it 2.7 times more likely that someone will be the victim of a homicide (with the perpetrator most likely related to or intimately acquainted with the victim) and 4.8 times more likely that someone will commit suicide.

To provide maximum protection against an intruder, a gun must remain loaded and within arm’s reach at all times. A gun safely stored in the closet, separated from its ammunition, provides little help in a fast-moving emergency. Not surprisingly, however, research has shown that a gun in the home is 43 times more likely to kill a member of the household, or a friend, than an intruder. There can be little dispute that the risk of a loaded weapon in the home greatly exceeds the benefits. (I am not talking about hunting rifles or those in law enforcement who need to have weapons in their possession on most occasions).

The notion that private gun ownership will protect us from political oppression makes even less sense. Private gun ownership was very common under Saddam Hussein’s regime and gun ownership was legalized in Germany five years before Hitler’s rise. In neither case was political tyranny prevented or even diminished. By contrast, although guns are banned in the United Kingdom, the British (call me crazy) enjoy far more freedom than the citizens of Saddam’s Iraq or Hitler’s Germany. And should the U.S. military, with its tanks, fighter jets, and nuclear arsenal, someday declare martial law, that .22 caliber pistol in your closet will do you little good. The best protection against political tyranny is the U.S. Constitution, a strong press, and three branches of government.

Nor does gun control mean that only the criminals will have guns. Today in the United States, the criminals can get a gun anytime they want. States like Pennsylvania and Virginia won’t even consider restricting gun purchases to one gun a month. So a straw purchaser (someone who can legally buy a handgun and will not have any issue with background checks) can go to a gun store, buy multiple handguns, and sell them on the street to convicted felons. It is not legal, but it happens every day, and many of these guns end up being used to commit homicides and other gun-related crimes. The easier it is for everyone to obtain guns, the more prevalent and lethal are the guns in the hands of criminals.

Although the Supreme Court recently instructed that the Second Amendment protects an individual’s right to own firearms and is not restricted to the ability of citizens to form a well-regulated militia (despite 200 years of case precedent to the contrary), it makes no sense that, in many states, it is more difficult to obtain a driver’s license than to buy a gun. In an ideal world, except for police officers and active military personnel, there really is no good reason to permit the civilian population to possess concealable handguns, assault weapons, and cop-killer bullets. Few people dispute the government’s right to ban the private sale of dangerous chemicals, hand grenades and bombs, and all sorts of inherently dangerous items. Why are guns so protected? What does it say about the maturation of American society that gun ownership is considered, in some circles, more sacrosanct than home ownership? If the Second Amendment really does mean that individuals are entitled to own as many handguns as they like, then it is time to amend the Constitution.

Although I would like to see the elimination of many civilian-owned firearms, I understand that this goal is politically unrealistic and, given the historical prevalence of guns in American society, not practical. But there are sensible, reasonable restrictions on gun ownership that everyone should embrace. First, we should have a national system for registering guns and ammunition. Second, instant background checks must be made a priority, and the flaws of existing laws should be corrected. Anyone with a prior criminal record, or mental health issues, should not be allowed to purchase a gun, period. Third, gun purchasers should be required to pass a test on gun safety; obtaining a permit to own or possess a gun should not be easier than obtaining a driver’s license. Just as drivers must prove they know the rules of the road and can handle a car safely before they are entitled to drive, gun owners should be required to prove they can handle a gun safely and lawfully. Fourth, gun owners, like car owners, should be required to purchase insurance, to compensate victims and society from intentional or accidental injury caused by a gun's use. Fifth, there should be stiffer sentences for illegal gun possession and straw purchasing, so that those who are not entitled to possess a gun (e.g., convicted criminals) will be deterred or prevented from doing so, or pay a steep price when they are caught. Sixth, no state should permit anyone to purchase more than one gun a month, in order to prevent straw purchases and the circumvention of other gun laws. And finally, all loopholes that apply to gun shows and private gun dealers must be eliminated. The laws should not vary from state-to-state or allow any exceptions based on the nature of the gun seller.

Kenny Copeland will be eligible for parole before 2020, free to return to Anacostia and walk the streets of D.C. Will the political forces of the gun industry and the NRA continue to promote the myth of a John Wayne America, where people like Copeland and thousands of other drug dealers, thugs, and violent criminals, have easy access to firearms, assault weapons, and the instruments of death? Or will the forces of reason prevail, those who would balance Second Amendment rights with reasonable restrictions on the sale and possession of firearms? Let’s hope, for the sake of victims and their families, it is the latter.

* - Denotes that the name has been changed for purposes of this essay.

In Search of a Good Justice: Elena Kagan and the Supreme Court

A few weeks ago, I knew nothing about Elena Kagan, the U.S. Solicitor General who President Obama has nominated to replace Justice John Paul Stevens on the Supreme Court. My gut tells me, however, that she possesses the attributes we want in a Justice – an open mind, intellectual depth, a willingness to listen to opposing views and to seek consensus, a non-ideological approach to the law, one driven by reason, fairness, and a respect for democracy. Kagan has an impeccable resume, having clerked for the Supreme Court, taught at the nation’s finest law schools, and served as a presidential domestic policy adviser, Dean of Harvard Law School, and now Solicitor General of the United States.

Kagan does not have a prolific written record from which to determine where she stands on important legal issues, but she has known Obama since their days together teaching law at the University of Chicago, and reportedly shares Obama’s cautious and pragmatic judicial philosophy. She has politically progressive instincts, with a cerebral, yet practical approach to legal questions. Her academic writings, it is said, are completely non-ideological. When she served as Dean of Harvard Law School, Kagan was a forceful critic of the military’s ban on openly gay and lesbian service members, but she also was instrumental in bringing more intellectual diversity and conservative legal scholars to a law school previously mired in ideological divisiveness and political correctness. And while she greatly admired her former boss, Justice Thurgood Marshall, she has expressed ambivalence toward his jurisprudence, a brand of judicial activism anachronistic by today’s standards.

What makes a good Supreme Court Justice? What traits should we look for in a person when selecting someone to fill this all-powerful, life-tenured post? When the Founding Fathers met in the summer of 1787 to draw up a Constitution, they gave seemingly little thought to the judiciary. Article III of the Constitution says nothing about the qualifications of judges and almost nothing about the mechanics of the judicial process, only that “[t]he judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time establish.” And while Article II empowers the Executive to appoint justices of the Supreme Court “by and with the Advice and Consent of the Senate,” the Founders offered little additional guidance.

History, if not the Constitution itself, has dictated that federal courts fulfill weighty and far-reaching responsibilities, more than any other judicial branch in the world. The importance of the Supreme Court to the daily lives of all Americans and to the functioning of our democracy owes its origins to an opinion in 1803 by Chief Justice John Marshall declaring a federal statute unconstitutional. “It is emphatically the province of the judiciary to determine what the law is,” Marshall wrote in the case of Marbury v. Madison. In holding that the Federal Judiciary Act of 1789 conflicted with Article III of the Constitution, Marshall considered it “the essence of judicial duty” to follow the Constitution. He declared “that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” These seemingly non-controversial positions were unsettled at the time, as the Constitution said nothing about which branch of government had the authority to address the constitutional validity of federal and state law. Marshall’s bold and visionary ruling risked a constitutional crisis, for had the Executive or Legislative branches not accepted the Court’s self-declared supremacy on questions of law, it could have altered irreversibly the young republic. The ruling has withstood the test of time, and today stands as the classic expression of judicial review in American constitutional law. It is precisely why we care about the character, intellect, and judgment of the men and women seated on our highest court.

There exist many conflicting views on the proper role of the courts, from strict constructionists and those who believe in discerning the text’s original intent, to those who believe in a “living” Constitution that changes with the times. In U.S. history, the Supreme Court has been a source of great inspiration as a symbol of liberty and justice for all, as in 1954 when Brown v. Board of Education held that segregated schools violated the Equal Protection Clause. It also has been the source of embarrassment and shame, as in 1857, when the Court ruled in the Dred Scott decision that people of African descent, forcibly imported into the United States and held as slaves, were not “citizens of a state” within the meaning of the Constitution.

If confirmed, Elena Kagan will become one of nine individuals responsible for interpreting and applying a document that embodies 18th century ideas about the rights of man and the powers and limitations of government. It is a text written in a slower, agrarian time that now must be applied to the exigencies of a rapidly changing industrial and technological society, which faces issues and circumstances the Founders did not and could not envision.

The most important, if perhaps the most elusive, quality of a Justice is, quite simply, judiciousness – the ability to judge dispassionately and impersonally. A justice represents neither her political party, her geographic region, nor her ethnicity, but only the Constitution. When Benjamin Cardozo, one of the great judicial minds of the Twentieth Century, was nominated to the Supreme Court in 1932, he faced resistance in part because New York already had two justices on the Court. In defending the nomination, one senator noted, “Cardozo belongs to Idaho as much as to New York,” that there is but one U.S. Constitution and but one national law. In an essay published in The New Republic nearly forty years ago, historian Henry Steele Commager wrote, “We do not want judges who confess a regional view, a partisan view, a racial view, or an economic view; we want judges who express a commonwealth view. This may be a counsel for perfection, but if we are allowed to strive for perfection anywhere, it is in the judiciary.”

John Marshall said that “a constitution is framed for ages to come and is designed to approach immortality as nearly as any human institution can approach it.” But the Constitution contains concepts like due process, equal protection, and liberty; concepts that mean different things to different people, and which depend on the particular circumstances. When the nation awakened to its history of racial oppression and applied the ideals of equality and due process to the challenge of segregated schools, whites’ only businesses, and restrictive covenants, it took justices who foresaw the insincerity of the “separate but equal” doctrine and who truly believed in a colorblind Constitution. In the sexual and reproductive privacy cases of the 1960’s and early 1970’s, it took justices willing to infer a right to privacy as essential to ordered liberty in the due process clause, in order to forbid the government from intruding into our bedrooms and interfering with our most intimate, private decisions.

Elena Kagan has the ability to process diverse points of view and to mediate between different factions. But does anyone really know what her judicial philosophy is, or whether she has a “judicial philosophy”? It seems that Kagan, like Obama, is not enamored of the judicial activism practiced by certain adherents of the left or the right, those who put their faith in the courts to affect social and political change, outpacing and moving ahead of (or pushing back) our democratic institutions. Jeffrey Toobin of The New Yorker has suggested that “Obama’s jurisprudence may rest less on any legal theory or nomenclature than on a more primal political skill – the ability to keep winning elections.”

“It used to be,” Obama remarked last month, “that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” In the 1960’s and 1970’s, judicial activism was a liberal concept that emphasized racial and gender equality, enforcing through the courts – through expansive interpretations of Due Process and Equal Protection – what could not be obtained through the legislative process. The social and political progress made through the rulings of the Warren and Burger eras was mostly necessary at the time, particularly on issues of race, and the country is better off for it. Nevertheless, an expansive view of constitutional rights, particularly when such rights are implied and not found within the four corners of the text, poses philosophical difficulties in a democracy, when unelected justices are essentially creating new rights and entitlements that the elected representatives of the people have not embraced.

In earlier years, judicial activists were conservatives opposed to legislative protections for consumers, children, and employees, striking down laws that violated the “freedom of contract”, a right stated nowhere in the text of the Constitution but implied by the Fourteenth Amendment’s due process clause. Today’s judicial activists also are conservative – “movement judges” like Justices Scalia, Roberts, Alito and Thomas – who set aside judicial restraint to overturn long-standing precedent and laws with which they disagree. The Citizens United case, for example, applied an overly broad reading of the First Amendment to corporate and union political contributions and voided a duly enacted statute that placed limits on such contributions. Such activist, results-oriented rulings, whether from the left or the right, pose the same troubling questions for a democratic republic.

The constitutional doctrine of substantive due process – from which most judicial activism, left or right, stems – originated in the late 19th century, when the Court barred government action that abridged one’s “freedom of contract” or “liberty of enterprise” and thus restricted the ability of government, through its democratically elected representatives, to regulate private industry. Certain conservative justices believed that the “freedom of contract” was implied in the Fourteenth Amendment’s concept of liberty (i.e., that no state may deprive someone of liberty without due process of law). Progressive critics countered that, through an application of “freedom of contract,” unelected justices imposed their personal economic and political philosophies on the populace, acting as a “super legislature” by overturning the will of the people as reflected in democratically enacted laws. Many progressive judicial voices – men such as Louis Brandeis, Benjamin Cardozo, Charles Evans Hughes, and Harlan Fiske Stone, among others – criticized what they perceived as extra-constitutional jurisprudence.

In the mid-20th century, liberal judicial activists adopted an expansive notion of substantive due process for their own purposes, particularly in the area of civil rights (they similarly adopted expansive notions of procedural due process on matters of criminal and administrative law). In ending segregation in public schools, a unanimous Court in Brown v. Board of Education used sweeping language that, while morally and politically just, had no firm textual basis in the Constitution. Brown led to decades of expansive applications of Equal Protection and Due Process that fueled criticism from the political right, who conveniently ignored the prior brand of judicial activism. Conservatives are particularly adamant about the “right to privacy” cases – symbolized most boldly by Roe v. Wade – contending that, like “freedom of contract,” there is no explicit “right to privacy” in the four corners of the Constitution.

Some leftist legal scholars contend that there is a constitutional right to economic equality, and to housing, health care, and many other areas of life. The further one advances such arguments in the courts, the less democratic the law becomes and, at some point, the legitimacy of the courts must be questioned. Most constitutional principles should not be taken to extremes. While it is impossible to determine the original intent of the Framers on most constitutional provisions – they were far too smart and politically astute to attempt to draft a constitution that could anticipate every issue – it is important to understand the historical context in which the Constitution originated and to remain true to the spirit and principles of its text. That the concept of liberty in the Fourteenth Amendment would encompass a right to sexual and reproductive privacy is, to me, a very reasonable interpretation of the textual language of the Due Process Clause. Changing societal mores, advances in technology, greater enlightenment on social and medical issues are proper considerations in discerning the meaning and application of the Constitution’s enduring principles. On the other hand, imposing one’s economic ideology onto constitutional doctrines to void democractically enacted laws (as some on the right would do), or to force economic equality on all aspects of society through the courts (as some on the left would do) are equally misguided notions of constitutional jurisprudence.

Obama understands this. In choosing Elena Kagan, as with his choice of Sonia Sotomayor, Obama is not seeking a justice with an overly broad view of constitutional rights. According to Richard Epstein, who served as interim dean of the University of Chicago Law School when Obama taught there, “Obama has nothing much he wants from the courts. He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.” Obama’s jurisprudence essentially comes down to, “leave me alone on economic issues and protect me on civil rights.”

Regardless of one’s constitutional and judicial philosophy, there is no aspect of our economic, social, and political life completely unaffected by the Supreme Court. Who fills its nine seats is too important for an informed citizenry to ignore. Of course, how a justice will evolve once given the chance to shape a nation is impossible to predict. Earl Warren and William Brennan, among the most liberal activist judges of the past century, were appointed by a Republican President, as was Harry Blackmun, the author of Roe v. Wade. President Kennedy’s sole appointment to the Court, Byron White, turned out to be a disappointment to liberals. In 1986, Justice White authored Bowers v. Hardwick, a deplorable opinion that upheld the right of the government to criminalize private, consensual homosexual behavior (a beautifully written dissent by Justice Blackmun, and a separate dissent by Justice Stevens, would eventually become the prevailing constitutional view when Hardwick was more recently overruled).

It is clear that, since Marbury v. Madison, when the Supreme Court decidedly became the final arbiter of the Constitution and the limits of federal power, there have been, from the left and the right, varying degrees of judicial rule-making and differing interpretations of constitutional provisions. This is understandable given the human nature of the Court as an institution. The conservatives presently serving on the Supreme Court, for example, believe in a far more sweeping view of the Second Amendment than judges and scholars – including the Founders – ever applied. It is a form of judicial activism of the worst kind to conclude, as many gun proponents do, that Congress cannot ban the sale of assault weapons or place reasonable restrictions on the private ownership of deadly weapons. Neither side is pure on constitutional issues – ideologues on the left or the right simply do not make for good justices. But in choosing a justice, the President and the Congress must be attuned to how a justice’s world view, concepts of judicial restraint, and ideological leanings will translate into the decision making process in real life cases.

What we will think of Elena Kagan twenty or thirty years from now is anyone’s guess. But if she retains a cautious pragmatism and a fidelity to the Constitution that does not ignore the realities of life; if she has an open mind, is willing to listen to all sides of an argument; if she maintains a sense of fairness, compassion, and justice and a healthy respect for history, judicial precedent and the democratic process, she may indeed become a justice who serves with pride and distinction.

America and Energy: A Failure of Vision

In the fall semester of my senior year, I attended American University as part of its Washington Semester Program. The 1980 presidential race in full swing, I became caught up in the issues of the day, issues which defined the times and, in many ways, remain with us today. As in most election years, the economy was on everyone’s mind, with talk of high inflation, stagnant job growth, double digit interest rates, and a mounting federal deficit (though at $50 billion, it was a surplus by 21st century standards). The Iranian Hostage Crisis was approaching its 365th day and represented a failure in presidential leadership that defined the Carter Presidency. And the Energy Crisis, as illustrated by rising oil costs, long gas lines, and America’s growing dependence on Middle Eastern oil supplies demonstrated how closely related all three issues actually were.

1980 was the only presidential election year in which I did not vote for the Democratic presidential candidate. President Carter was a disappointment to me and, following Ted Kennedy’s inspirational speech at the Democratic National Convention, I salvaged little enthusiasm for Carter. Though I dreaded the thought of a Reagan Presidency, my vote was to be cast in the District of Columbia, whose three electoral votes were safely in the hands of the Democrats. So I voted with my heart, rather than my head, and pulled the lever for John Anderson, a liberal Republican Congressman from Illinois who ran as an Independent that year. Anderson, I knew, could not win, but he was intelligent, articulate, and talked about the issues that most needed to be addressed.

One of Anderson’s primary concerns was America’s dependence on foreign oil, which he viewed as both an economic and a national security issue. Starting in August 1979, Anderson called for a 50-cent-per-gallon energy conservation tax to encourage reduced gasoline consumption and to spur more fuel efficient automobiles, steps he believed essential to reduce our dependence on oil supplies from the Middle East and other politically unstable regions. Anderson recognized the regressive nature of such a tax and its short-term economic burdens, so he proposed that the new gas tax revenues be used to cut in half employee Social Security taxes, to increase Social Security benefits, and to compensate those not on payrolls. He also proposed to exempt farmers and allow tax credits for businesses unfairly penalized. Although ridiculed at the time by the two major parties, had they or Congress paid attention, we would today be driving more fuel efficient cars, importing less oil, enjoying cleaner air and experiencing fewer oil spills. And we would be far more advanced in our energy conservation efforts and the development of alternative, renewable energy sources.

Anderson’s candidacy caught my attention that summer when I read Energy Future: Report of the Energy Project at the Harvard Business School (Random House, 1979), which surprisingly became a bestseller despite its 72 pages of footnotes. Edited by Harvard professors Robert Stobaugh and Daniel Yergin and written in plain English, Energy Future applied a business school perspective to the energy industry, assessing costs and risks, priority and potential, incentives, profits, and the marketplace. It explained that the oil shocks of the 1970’s were predictable, a reflection of the shifts in market power between energy users and energy producers (as countries like Saudi Arabia, Iran, and Iraq accumulated exorbitant power over the consuming nations). The report examined the external costs of energy use – the environmental, social, and geopolitical costs – which it contended had to be considered for there to be an accurate market analysis of each industry sector. And it advocated for an energy policy that combined subsidies and tax incentives, but which emphasized a free market approach, to achieve energy independence without sacrificing economic growth.

According to the B-School whiz kids, for different reasons, none of the four conventional sources of domestic energy – oil, coal, natural gas, or nuclear – could be relied upon to supply any more of our energy needs than these sources already did by the late 1970’s. Oil reserves in the United States were limited, and the potential for offshore drilling came with major environmental concerns and political barriers. Coal, while abundant in supply, brought with it serious labor-management disputes and a militant labor union, deadly health and safety risks, and huge environmental drawbacks. Building more nuclear reactors, while a potential source of relatively clean energy, was not politically viable in the United States due to the partial core meltdown that had occurred at Three Mile Island in March 1979, and given the growing public concerns with reactor safety (concerns heightened seven years later when a catastrophic accident occurred at the Chernobyl Nuclear Power Plant in Ukraine that dispersed large amounts of radioactive fallout into the atmosphere); and no reliable method had been developed to store the radioactive waste produced by nuclear power plants. Nor could we realistically rely on natural gas to provide much more than 25% of America’s energy needs (about what this source supplied in 1979). While natural gas provided a clean source of domestically produced energy and lacked the problems associated with nuclear and coal, it involved huge production and exploration costs in an industry mired in price fluctuations, an uncertain cost structure, regional disputes, and a complex interstate pricing and regulatory scheme. Although we could count on some growth in natural gas production, it alone could not lessen our reliance on foreign oil.

Energy Future also examined the negative externalities, or external costs (social, political, environmental), of each energy source. The study demonstrated that, if external costs were factored into the pricing structures of the traditional energy sources, then coal, oil, and nuclear were among the most expensive energy sources, while the true costs of natural gas production contained too many uncertainties to provide a reliable measurement. The report suggested not that we give up on the traditional sources, only that such sources would not and could not solve our energy problems and reduce our dependence on foreign oil.

What John Anderson and the Harvard Business School both realized was that the best hope for the United States, the solution that had the most chance of success and that made the most sense, economically and politically, was conservation (principally through increased energy efficiency) and development of solar energy. Anderson discussed policy measures similar to that set forth in Energy Future – tax credits and subsidies that provided market incentives promoting fuel efficiency, conservation, and the development of solar and other forms of renewable energy, which had high start-up costs but offered long-term solutions to America’s oil addiction and reliance on dirty and dangerous energy sources. It was essentially an attempt to place conservation and solar on an even footing with the traditional energy sources, all of which had benefitted for decades from subsidies and tax breaks. Although John Anderson tried to educate a reluctant populace, mainstream politicians and the two major political parties refused to listen.

Thirty years later, we find little has changed. America continues to suffer from a short-term perspective. When oil prices temporarily declined on global markets in the 1980’s, the Reagan administration backed expanded domestic oil production and Americans continued to drive large cars and SUVs, blast air conditioners, and play with motor boats and recreational vehicles. The United States, having lost its enthusiasm for a new approach to energy policy (President Reagan even ordered the removal of solar panels that President Carter had placed on the roof of the Department of Energy’s Forrestal Building), by the mid-1980’s once again returned to gas-guzzling cars and trucks. Today, our oil consumption has increased by over 40% and we remain as reliant as ever on foreign oil, as American dollars increase the wealth of Iran and Saudi Arabia, and our government spends over a trillion dollars on the War in Iraq.

Our oil addiction and reliance on conventional energy sources is further apparent when we look at the recent oil spill in the Gulf of Mexico, one of the worst environmental disasters in American history, yet reminiscent of 1969, when a major spill from an offshore platform off the coast of Santa Barbara, California, coated its pristine beaches in oil and led to the founding of Earth Day. Several major oil spills later, including the Exxon Valdez disaster in Prince William Sound in 1989, America continues to consume increasing amounts of energy. Despite some tinkering around the edges, little has been done to seriously address the environmental, health and safety, and national security risks of our stagnant energy policy. As Thomas Friedman of the New York Times wrote recently:

There is only one meaningful response to the horrific oil spill in the Gulf of Mexico and that is for America to stop messing around when it comes to designing its energy and environmental future. The only meaningful response to this man-made disaster is a man-made energy bill that would finally put in place an American clean-energy infrastructure that would set our country on a real, long-term path to ending our addiction to oil.

That is so obviously the right thing for our environment, the right thing for our national security, the right thing for our economic security and the right thing to promote innovation. But it means that we have to stop messing around with idiotic “drill, baby, drill” nostrums, feel-good Earth Day concerts and the paralyzing notion that the American people are not prepared to do anything serious to change our energy mix.

President Obama has the right instincts on energy policy, but it remains to be seen whether he has the political will and courage to truly lead our nation in the direction it needs to go. He has taken some positive steps:

• Accelerating the development of renewable energy – wind, solar, and geothermal power and battery-powered vehicles – through subsidies and tax incentives.

• Investing in high-speed rail, clean coal technology and smart grid investments as part of last year’s economic stimulus act.

• Defining greenhouse-gas emissions as a danger to human health and the environment and implementing a new “clean car” standard that, for the first time, allows the Environmental Protection Agency to regulate greenhouse-gas tailpipe emissions; and

• Adopting improved fuel efficiency standards for cars and trucks.

Of course, the President has also pushed for expanded offshore oil drilling (much to the chagrin of environmentalists, who can now honestly say, “I told you so”) and authorized financing for the construction of two new nuclear power reactors, the first such reactors since the 1970’s.

As the Harvard Business School concluded in Energy Future, there is no easy fix to America’s energy problems. We are all to blame – I am no exception, for I watch my color television sets, crank up the air conditioning on hot summer days, enjoy the freedom of travel, and regularly turn on the light switch – but until we finally see the big picture, until we can envision where our energy future is headed, until we realize the true costs – environmental, national security, and economic – of our dependence on oil and coal (and nuclear, until we find safe means to dispose of radioactive spent fuel), we will continue to be held hostage by Arab sheiks, Texas tycoons, and Wall Street commodities traders. The real problem with the oil spill in the Gulf and the coal mining tragedy in West Virginia (and the repeated history of such tragedies over the past two centuries), are not the tragedies themselves, for the risks are foreseeable and will continue to be so as long as we depend on these energy sources. The real problem is our reliance on oil and coal itself.

Until we as a nation – as consumers, as business owners, as policy makers – embrace conservation as a national priority, adopt serious fuel efficiency standards, and maximize our development and use of clean and renewable energy sources, we will continue to harm our most precious resource, the Earth, and be dependent on forces and nations outside of our control, at great risk to our economy, our environment, and our national security.