Missing the Conversations

Only that day dawns to which we are awake. There is more day to dawn. The sun is but a morning star. – Henry David Thoreau

Earlier this week I drove to Lehigh University in Bethlehem, Pennsylvania, for work-related business. An unseasonably warm and sunny March day, I cracked opened the car windows and let the early spring air brush against my forehead and refresh my senses. The hour plus drive up the Northeast Extension of the Pennsylvania Turnpike, a scenic and peaceful stretch of hills and farms, allowed me to reflect on life, longing, and the passage of time.

Upon arriving, I took a moment to walk around the beautifully wooded hillside campus spread across 2,300 acres of Pennsylvania’s Lehigh Valley. Situated fifty miles north of Philadelphia and 75 miles west of New York City, the campus contains a vibrancy that belies its quiet location. Although I was born a few miles away in Easton, my only previous visit to Lehigh’s campus was in the early 1970s when I accompanied my family to a Wittenberg-Lehigh football game. The air had a familiar feel and scent.

As I walked along the campus commons and watched students lounge, talk, walk hurriedly to class, and toss Frisbees, I felt the years melt away. I thought back to a time 35 years earlier when I walked across Wittenberg’s campus between classes, books in hand and thoughts filling my head as I stopped to talk with a classmate or to sit on a tree-sheltered bench in front of the library.

When my meetings at Lehigh concluded and it was time to leave, I took a final look around and felt a slight pang in my heart. A few minutes later I realized what it was, this sense of loss as I left campus, for I wanted to call home and talk with my Dad about work and life and my morning at Lehigh. He would have liked that. He had spent nearly a decade in this part of the country when he was a young Lutheran minister in Phillipsburg, New Jersey, just across the river. Like me, Dad enjoyed exploring college campuses. When I was younger, we occasionally found ourselves walking along the campuses of Princeton and Harvard, Holy Cross and Dartmouth, and many smaller and lesser known schools near places my Dad visited when we lived in New Jersey and later Massachusetts.

I think now I know why Dad liked college campuses so much. They remind us of when we were young, when life seemed full of possibility, the world and everything about it a place of creative exploration and learning; when opportunities awaited our advancing progress and many paths seemed open to us. College was a time of hopeful uncertainty, when it was safe to dream of being and doing anything; of being “a free man in Paris . . . unfettered and alive” as Joni Mitchell sang on Court and Spark.

There is a reason young people are on the whole more idealistic than the rest of us, and that cynicism and despair increase as we grow old. For Dad and me, college campuses were a brief respite from all of that. They reminded him, as they continue to remind me, of a time years ago when we possessed grander visions.

When he was a pastor in northern Virginia in the 1980’s and early 1990’s, one of Dad’s favorite activities was his annual visits to nearby colleges attended by the sons and daughters of congregants, the same kids he confirmed five or six years before and counseled in youth group rap sessions. From his church in Maclean, Virginia, he visited schools like Washington and Lee, Virginia, and VMI. Dad always had a sense of hope and optimism when he talked of such visits. He enjoyed speaking to young people, learning about their studies and college experiences, and discussing with them their future plans, anxieties, and dreams. I love that too, and I am certain I have annoyed more than a few college and graduate students with questions about their studies, their plans, their hopes for the future. And yet, I have had some of my best conversations with my daughters and their friends when focused on their goals, their concerns, and the many options and obstacles that lie ahead.

In the final decade of his life, my Dad loved hearing about what schools Jen and Hannah had applied to and, after leaving for college, what classes they were taking, their activities and internships, and their experiences abroad. He did not always have advice relevant to the 21st century economy (nor do I), but the girls and I enjoyed his interest in their lives and futures.

These are the conversations I miss the most since my Dad died nearly a year ago. It hits me only occasionally now, but there are some days, like my visit to the Lehigh campus, that leave me with a momentary sense of remorse, when I am reminded that death is forever and there is no turning back; and when I am forced to acknowledge that loss is permanent.

But then again, maybe the immutability of loss is but an illusion. I am reminded of a scene in one of my favorite movies – a cute, inspiring film I used to watch with my daughters when they were young about a 13 year-old girl named Amy who moves back with her Dad after her mother dies in a car accident. Her Dad, played by Jeff Daniels, is an eccentric, free-spirited inventor, who lives on a farm in rural Canada. Early on, Amy finds a nest of abandoned goose eggs, which she nurtures and watches over until they hatch. The baby geese immediately associate Amy as their mother, and she raises and cares for the goslings as if they were her children. The goslings follow Amy everywhere. But with the approach of winter, she and her Dad realize they must find a way to lead them south. Based on a true story, Fly Away Home contains beautiful scenes of the Canadian countryside and of the geese in flight after Amy’s Dad builds two small engine-assisted gliders, one painted to resemble a large goose. Ultimately, Amy learns to fly the goose-like contraption and, together, she and her Dad fly along the east coast of the United States from Canada, with all of the young geese in tow, before landing safely in a nature preserve in North Carolina.

In one memorable scene, the Dad’s glider malfunctions and he crash lands, dislocating his shoulder. He insists Amy continue on without him. But Amy doubts herself.

“I can't find my way without you,” she says.

 “Yes, you can,” insists the Dad. “Because you're like your mother. . . . She was brave, you know. . . . She went off, followed her dream. Nobody helped her. . . . You have that strength in you too.”

“I wish she was here now.”

“She is. . . . She's right next to you. She's in the geese. She's in the sky. She's all around you.”

There is wisdom and simplicity to this notion of spirit, of the ineffable presence of loved ones no longer with us. I would like to believe there is truth to the notion that those who precede us in death remain with us in life, present in the sun, the sky, the trees, and the geese. And why not? What is this life all about if not to fulfill some larger circle of existence?

“It’s not what you look at that matters, it’s what you see,” wrote Henry David Thoreau. “This world is but a canvas to our imagination.” To find inspiration in the clouds, the grass beneath our feet, and the mane of a wild horse, is to transcend the limits of time and mind. I can no longer talk with my Dad about the things which most excited him, and from which he had much to say. But I will continue to have those same conversations with my children. And I will know that, in some inexplicable way, Dad’s voice continues to be heard. For as the author Henry Stanley Haskins wisely said, “What lies behind us and what lies before us are tiny matters compared to what lies within us.”

Give me the splendid, silent sun with all his beams full-dazzling. 

– Walt Whitman

The Origins of an Argument: My Lunch with Antonin Scalia

The sudden and unexpected death of Justice Antonin Scalia heightens the importance of the 2016 presidential election. Whoever replaces Scalia will undoubtedly alter the balance of the Supreme Court. He was a conservative firebrand who, depending on your perspective, became one of the most revered or reviled justices in history. With three remaining justices over the age of 77, the direction of the Court, and the law of the land, could radically change in the coming years. But there will be time to address the political, legal, and social implications of these inevitable nomination battles. For now, I wish only to recount the day more than thirty years ago, armed with a bag of chips and a tuna sandwich, I debated constitutional law with then Judge Scalia.

In the fall of 1985, fresh from George Washington Law School, I was a judicial law clerk to Judge John Terry of the District of Columbia Court of Appeals. Judicial clerkships are highly sought after appointments for recent law school graduates and I was honored and privileged for having been selected. The D.C. Court of Appeals was the equivalent of a state supreme court, the highest appellate court in the District of Columbia for all criminal and civil cases originating in the city’s court system and before administrative agencies of the D.C. Government. The men and women who clerked on the Court of Appeals hailed from some of the nation’s best law schools. Intelligent and opinionated, we had many spirited debates about law and politics, individual rights, and notions of liberty and justice. It was an exciting year and remains one of the most satisfying experiences of my legal career.

Among the highlights of that year were the monthly brown-bag lunches hosted by the court librarian, who invited distinguished guests to join the appellate clerks for lunch in the judge’s conference room. Of all the guests we entertained that year, the most memorable was none other than Antonin Scalia, then an Associate Judge on the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit was the federal equivalent of the D.C. Court of Appeals, though more prestigious and influential. Because Congress, the White House, and most federal regulatory agencies are located in Washington, D.C., the D.C. Circuit is often the court of last resort for controversies of national import. Judges on the D.C. Circuit frequently make the short list of potential Supreme Court nominees whenever a vacancy arises. In fact, until Justice Scalia’s passing, four of the nine Supreme Court Justices originated from the D.C. Circuit (Antonin Scalia, John Roberts, Ruth Bader Ginsburg, and Clarence Thomas).

On a cool, sunny October day, dressed in a dark suit and red tie, Judge Scalia walked across the street from the federal courthouse to the sixth floor of the D.C. Courthouse, where he was met by 20 appellate clerks well aware of his confrontational and outspoken style. Although seven months would pass before President Reagan nominated Judge Scalia to the Supreme Court, he was widely regarded in legal circles as a brash and outspoken advocate of the Constitutional doctrine known as “originalism,” the idea that judges should interpret the Constitution consistent with the original meaning of its language. As a sitting judge and former law professor, Scalia mocked the notion of a “living” Constitution, one that evolved with the changing times, as simply an excuse for unelected judges to invoke their personal preferences and ideologies. He insisted his approach was value neutral and not necessarily a reflection of his personal views. If you don’t like what the Constitution says, he contended, amend the Constitution. But don’t read into the plain words of the text what is not there. No jurist or legal scholar in my lifetime has been as influential and effective in pressing his or her notion of constitutional scholarship as then Judge, and later Justice, Antonin Scalia.

As it happened, Judge Scalia sat to my immediate left the day he joined us for lunch. He had an intimidating, if slightly disarming, manner; part-Shakespeare, part Sicilian street fighter from Queens. He combined intellectual rigor and sarcasm with a caustic sense of humor. He was as irreverent and arrogant as advertised, even a bit rude, though he was open to dialogue and debate.

After introductions, Scalia offered his view of the Constitution and the role of a sitting judge. In discussing originalism, and by way of example, Scalia asserted that the Eighth Amendment prohibition against “cruel and unusual punishments” by definition did not outlaw the death penalty. This was so, explained Judge Scalia, because executions were widely practiced when the Constitution was ratified and thus the original meaning of the phrase “cruel and unusual” did not encompass death sentences for the most serious crimes. At this, I raised my hand, momentarily interrupting the judge’s train of thought. His glance impressed me as more Queens street fighter than Shakespeare.

“Yes, Judge Scalia, but does not society have the right to advance?” I asked with some hesitation. “I mean, two hundred years later, is it not the proper role of the courts to apply and interpret ‘cruel and unusual’ in a manner consistent with the standards of the 20th Century?”

“To what standards are you referring? Yours? Who decides? Why should it be up to nine unelected lawyers? By what right do they have to change the clear and unambiguous meaning of the words as written?” The judge waited impatiently for my response.

“It is the job of judges to interpret the Constitution in the context of changing times,” I replied. “It is not a static document.”

“Says who? And by what authority?”

“Um, well…”

“Look, stop trying to impose your values on the original meaning of the Constitution. If you are opposed to the death penalty, fine, then pass a law that abolishes it. Or amend the Constitution to explicitly prohibit the death penalty. But don’t suggest that the words of the Constitution, which meant one thing at the time they were written, now suddenly have a different meaning.”

Although there is more to this debate than can be resolved over a lunch box, I understood his argument. Up to a point, I agree with him. On the surface, it is a hands-off attitude, a nod to the separation of powers that gives the democratically elected branches of government the unfettered authority to make the laws. The Constitution should only intervene when Congress or the President clearly run afoul of their constitutional authority. Judge Scalia was not insisting on the existence of the death penalty. He was only stating that the Constitution, in his view, does not prohibit the death penalty. It is a distinction important to understand regardless of one’s opinion on the appropriateness or morality of state sanctioned executions.

But though I did not press the argument at the time, Scalia’s is not the only or even correct view of the Constitution and its proper interpretation. In 1922, Justice Louis Brandeis wrote that “our Constitution is not a strait-jacket” but “a living organism . . . capable of growth.” It requires judges to take account of the realities of American life. In 1791, public flogging was standard punishment in some communities and not widely considered a “cruel and unusual” punishment for certain crimes. And yet, is there really any question that fifty lashes on a public square for a convicted horse thief would today be considered by the courts, with near unanimity, a “cruel and unusual” measure? What changed, or evolved, if not the Constitution and our present-day understanding of it? As Justice Oliver Wendell Holmes wrote in 1920, the cases before the Court “must be considered in light of our whole experience and not merely of what was said a hundred years ago.”

Later, the conversation turned to the right of privacy, the foundation of Roe v. Wade and other decisions protecting the rights of individuals to abortion, contraception, and reproductive freedom.

“Where in the Constitution,” asked Judge Scalia, “is there a right to privacy?”

“In the concept of liberty under the Fourteenth Amendment,” I suggested.

“How so?” asked the judge.

“Well, what is liberty without the right to privacy? Especially from governmental interference in the most intimate and private decisions affecting one's body?” I replied.

“So, you would read into the Constitution a right not stated anywhere in its text, and then apply that right to prohibit democratically elected representatives from imposing the presumed will of the people in outlawing abortions?”

“Yes, because the concept of liberty, which includes privacy, has expanded over time,” I said.

“Are you applying the Constitution, or are you simply imposing your sense of morality and values into the law? And what gives you that authority?”

“But aren’t you doing the same thing?” I asked, evading the judge’s glare as I wiped the sweat from my forehead. The room had become intensely silent.

“No,” Judge Scalia insisted. “It makes no difference what my personal views are on the death penalty, abortion, any of these issues. What matters is what the Constitution does and does not prohibit. The document does not mean one thing in 1791 and something else in 1985. If Congress or a state legislature wants to legalize abortion, they can do so. But if the democratic process wants to outlaw abortion, unless and until the Constitution changes, they can do that as well. This is about upholding the democratic process. Judges are umpires, not law makers.”

For a solid hour, Scalia skirmished with a number of law clerks, most of whom were decidedly liberal and unpersuaded by Scalia’s reliance on originalism. I suggested at some point that certain constitutional principles have been expanded appropriately by the Warren and Burger Courts, especially in the areas of criminal procedure and civil rights, because “the courts' primary role is to protect the minority from the tyranny of the majority.” And though I cannot recall precisely Judge Scalia’s response – something like, “So does the Constitution change when today’s minority becomes tomorrow’s majority?” – I sensed, without any evidence, he was thinking, “Look, you little shit, you don’t know anything.” But I believe he enjoyed the intellectual exercise. He even may have found it invigorating. On that, we were in agreement.

By summer’s end, Judge Scalia was sworn in as an Associate Justice of the Supreme Court, where he would serve for the next 30 years. He will be remembered as one of the most influential conservative jurists in American history and a defining figure in American constitutional law. Although I did not agree with most of Scalia’s views on the Constitution or the role of the judiciary, I respected his intelligence and ability to articulate persuasively his overriding judicial philosophy. At a public appearance in 2015, Scalia said what he easily could have said during our lunch together 30 years earlier: “Don’t paint me as antigay or antiabortion or anything else. All I’m doing on the Supreme Court is opining about who should decide. Is it a matter left to the people, or is it a matter of my responsibility as a justice of the Supreme Court?” To him, at least in these public pronouncements, it was simply about the democratic process, the rule of law, and the separation of powers. Whatever one may think of the political and social impact of Justice Scalia, it is important to understand his point of view and confront honestly his questions, which go to the heart of American constitutional law and the essence of a democracy.

My problem with Scalia was that, despite a clearly articulated judicial philosophy, his rulings frequently were less value-neutral than he insisted. Scalia was a conservative through-and-through, and he exerted his power in ways that advanced a conservative political agenda. His doctrine of originalism served to set in stone the Constitution as it existed 225 years ago. But intentionally vague concepts such as “liberty,” “equal protection,” and “due process” do not remain fixed in time. Equal Protection and Due Process as understood in 1791 or 1868 did not preclude “Whites only” water fountains, racial and gender discrimination, slavery, or Jim Crow. Only with time and social progress did that change. The same is true for many other constitutional concepts.

In many politically-charged cases, Justice Scalia seemingly applied judicial restraint to laws he agreed with, and became a judicial activist for statutes he disagreed with. Thus, he consistently ruled against constitutional protections for gays and lesbians in voting to uphold laws that discriminated against same-sex couples. Dissenting in Obergefell v. Hodges, Justice Scalia wrote: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” But in District of Columbia v. Heller, he effectively disregarded 200 years of judicial precedent in overturning the District of Columbia’s gun registration law. Ruling that the statute violated an “individual’s” right to bear arms, he applied a view of the Second Amendment disconnected from its history and original meaning of a “well-regulated Militia.”

In Citizens United, Scalia joined the majority in ruling that a bipartisan campaign finance law limiting how much money corporations spend on political advertising violates the First Amendment’s “free speech” clause. According to Scalia, “to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.” Really? What was the basis of his authority? Did not Justice Scalia impose his own unelected view over that of the nation’s elected representatives through a concept of speech not previously recognized in 200 years of constitutional jurisprudence? What gives? Indeed, Scalia’s writings and opinions in these and many other cases betrayed the philosophical consistency so confidently asserted over tuna on rye more than three decades ago.

And yet, Justice Scalia was a persuasive and formidable proponent of passionately held views. I am grateful to have had the opportunity to “debate” Justice Scalia as a young law clerk. I did not change his mind, and he did not change mine. He was cantankerous and rude, arrogant and opinionated. But in one hour of interaction, he had an impact on me, and my fellow law clerks. I did not adopt Justice Scalia’s worldview or judicial philosophy, but I continue to share his professed respect for the law, the Constitution, and the democratic process. For better or worse, his judicial philosophy, if not his forceful personality, will remain a constant presence in legal and constitutional circles for years to come.

The Evolution and Perils of Conservative Orthodoxy

In 1960, Barry Goldwater published The Conscience of a Conservative, a manifesto of limited government that became, in the words of Patrick Buchanan, the “New Testament” of the conservative movement in the United States. Ghost written by The National Review editor and Goldwater speechwriter L. Brent Bozell, The Conscience of a Conservative portrayed the federal government as the enemy of liberty. Goldwater sought to abolish Social Security, defund the United Nations, and eliminate federal welfare programs and federal aid to schools. He asserted that Brown v. Board of Education and similar Supreme Court decisions were "abuses of power" and constitutionally invalid.

Fred Koch, a founding member of the John Birch Society (and father of Charles and David Koch) financed the publication of Goldwater’s treatise, which helped catapult Goldwater into national politics and made him into a hero among true believing conservatives. An avowed anti-communist, in a 1963 television interview, Goldwater suggested that “defoliation of forests by low-yield atomic weapons could well be done” to disrupt the flow of arms from North Vietnam. Many believed Goldwater’s extreme positions disqualified him for the presidency. But in 1964, Goldwater became the Republican nominee for President. Although he lost in a landslide to Lyndon Johnson, Goldwater’s embrace of states’ rights and opposition to the Civil Rights Act of 1964 helped him win the Deep South and paved the way for Richard Nixon’s Southern Strategy and successful presidential run in 1968.

Five years before The Conscience of a Conservative appeared on the scene, William F. Buckley (Bozell's brother-in-law) founded The National Review, a small but influential magazine that gave the conservative movement intellectual cache and sophistication. Buckley opposed the moderate policies of President Dwight Eisenhower, the first Republican President since Herbert Hoover. The National Review’s program statement implicitly attacked Eisenhower’s centrism, declaring: “Middle-of-the-Road, qua Middle-of-the-Road is politically, intellectually, and morally repugnant.” Eisenhower’s greatest sin, according to Buckley, was a willingness to govern through moderation and cooperation. To the dismay of “principled” conservatives, President Eisenhower made no attempt to dismantle the New Deal and accepted the political reality of the consequences of doing so. “Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs,” Eisenhower said, “you would not hear of that party again in our political history.” To the ideologically pure conservative, this statement equaled capitulation, a willingness to embrace the collectivist forces of evil liberalism.

As Garry Wills writes in a recent issue of The New York Review of Books (“The Triumph of the Hard Right”), “The sense of betrayal by one’s own is a continuing theme in the Republican Party.” Ideological division and disunity led by the radical right has historically haunted Republican politics. Right-wing forces opposed Gerald Ford in 1976 for his centrist foreign policy, leading to the election of Jimmy Carter. George H. W. Bush was attacked and abandoned by the right after he violated his pledge of “no new taxes” prior to the 1992 election, leading to the election of Bill Clinton. The right disliked even George W. Bush for his support of No Child Left Behind and Medicare Part D. And no modern Republican president, including Ronald Reagan, succeeded in shrinking the size and influence of the federal government.

Although the Republican Party has continued to shift rightward, for most of the 20th Century the Republican establishment consisted of insiders who spoke conservatively and governed moderately. But as the rise of the Tea Party and ascendance of conservative talk radio attests, a festering resentment has created a new and unpredictable turn in Republican politics.

“To be on the right is to feel perpetually betrayed,” writes Wills. “At a time when the right has commanding control of radio and television talk shows, it still feels persecuted by the ‘mainstream media.’ With all the power of the one percent in control of the nation’s wealth, the right feels its influence is being undermined by the academy, where liberals lurk to brainwash conservative parents’ children (the lament of Buckley’s very first book, God and Man at Yale).” As we have seen time and again this past decade, the most conservative elements of the Republican Party punish members willing to compromise with President Obama and the Democrats. It is why Republican presidential candidates contort themselves to demonstrate increasingly extreme anti-immigrant, anti-evolution, anti-climate change, anti-everything credentials.

As I proposed in an essay written over five years ago (“Where Have the Moderate Republicans Gone?”), it is increasingly difficult to identify the modern day statesmen in today’s Republican Party. I grew up observing moderate, sensible legislators, such as Howard Baker, Jacob Javitz, Rudy Boschwitz, Mark Hatfield, and John Danforth – Republicans who put the nation’s interests above petty partisanship and willingly worked with Democrats to solve the country’s problems. These leaders understood that governing a country as large and complex as the United States, with many diverse interests, requires political give-and-take.

It is now fatal for Republican presidential candidates to hint of moderation. Jeb Bush and John Kasich, both struggling in the early primary states, are two men who understand the complexities of governing. They harken back to George H. W. Bush’s call for a “kinder and gentler” Republican Party and George W. Bush’s promise of “compassionate conservatism,” concepts never taken seriously in far-right circles, which value ideological purity over compromise, obstruction over cooperation.

Perhaps no one is more responsible for the current uncompromising Republican orthodoxy than William Kristol, the conservative editor of The Weekly Standard. In 1993, Kristol drafted a memo outlining a strategy for Republican congressional leaders to defeat President Clinton’s proposed health care reform. Kristol noted that while the Clinton administration preferred “bargain and compromise” to achieve its goals, total defeat and surrender “must be our goal.” “Any Republican urge to negotiate a ‘least bad’ compromise with the Democrats, and thereby gain momentary public credit for helping the president ‘do something’ about health care,’ should . . . be resisted.” Kristol called for “a newly bold and principled Republican politics” that sought as its goal “the unqualified political defeat” of Clinton’s health care plan.

Grover Norquist, President of Americans for Tax Reform, who led efforts to make support for any form of tax increase equivalent to political suicide, reinforced Kristol’s approach. In 2003, while attending a Harvard alumni reunion, Norquist discussed his plans for a “permanent Republican majority.” When it was suggested that a Democrat would again someday occupy the White House, Norquist replied, “We will make it so a Democrat cannot govern as a Democrat.”

A Fox News poll found in September 2015 that 62% of Republicans feel “betrayed” by their party’s officeholders. This may help explain why perceived “outsiders” and anti-establishment candidates like Donald Trump and Ted Cruz are threatening to upset the political order. Like the creation of Frankenstein, conservative anger and bitterness fueled by years of establishment acrimony has turned the party establishment on its head.

During the Obama presidency, the Kristol-Norquist strategy came full circle. As reported by Michael Grunwald of Time magazine, the Republicans plotted

. . . to obstruct President Obama before he even took office, including secret meetings led by House GOP whip Eric Cantor (in December 2008) and Senate minority leader Mitch McConnell (in early January 2009) in which they laid out their daring (though cynical and political) no-honeymoon strategy of all-out resistance to a popular President-elect during an economic emergency. “If he was for it,” former Ohio Senator George Voinovich explained, “we had to be against it.”

For the past seven years, the far right and anti-establishment voices in the Republican Party have sought to defeat and obstruct President Obama’s agenda. Every Republican House member (and all but three Republican Senators) opposed the $831 million economic stimulus legislation in 2009, which according to a 2012 University of Chicago survey of economists, is widely credited with helping reverse the Great Recession and reducing unemployment. Similarly, not one Republican Senator or House member voted to expand health care coverage for uninsured Americans. Consistent with the Kristol-Norquist playbook, opposition to the Affordable Care Act was mandatory for every Republican. As David Frum, former speechwriter to George W. Bush, wrote in 2010:

At the beginning of this process we made a strategic decision: unlike, say, Democrats in 2001 when President Bush proposed his first tax cut, we would make no deal with the administration. No negotiations, no compromise, nothing. We were going for all the marbles. This would be Obama’s Waterloo – just as healthcare was Clinton’s in 1994. 

Could a deal have been reached? Who knows? But we do know that the gap between this plan and traditional Republican ideas is not very big. The Obama plan has a broad family resemblance to Mitt Romney’s Massachusetts plan. It builds on ideas developed at the Heritage Foundation in the early 1990s that formed the basis for Republican counter-proposals to Clintoncare in 1993-1994. 

Barack Obama badly wanted Republican votes for his plan. Could we have leveraged his desire to align the plan more closely with conservative views?  . . . Too late now. . . . We followed the most radical voices in the party and the movement, and they led us to abject and irreversible defeat.

Since then, House Republicans have voted more than 50 times to repeal the Affordable Care Act, with nothing to show for it. Twenty Republican Governors initially refused to expand their states’ Medicaid coverage under the Act, turning down federal dollars to score political points at the expense of millions of low-income working families.

As we enter Obama’s final year, Republican intransigence continues. One week after the terrorist attack in San Bernardino that killed fourteen people, the House and Senate defeated legislation to ban the sale of guns and explosives to anyone on the FBI’s terrorist watch list. As reported by the Government Accountability Office, during the past eleven years, individuals on the list have sought to purchase guns or explosives 2,233 times. Because of existing loopholes in federal law, 2,043 of these sales, or 91%, were approved. Opposition to a bill that would close this loophole and disallow the sales of pistols, rifles, assault weapons, and explosives such as ammonium nitrate and potassium chloride, to suspected terrorists, defies logic or reason. And yet, 53 of 54 Republican senators and all 241 Republican House members who voted on the bill opposed the measure.

A rigid conservative orthodoxy similarly requires disavowing the reality and implications of climate change and the near-scientific consensus in support of reasonable measures to counter the environmental effects of global warming (2014 and 2015 are the hottest years ever recorded). Thus, in two votes on November 17, 2015, only three Senate Republicans (out of 52) voted in favor of a proposed EPA regulation to reduce carbon pollution emissions, and the same margin voted to reject an EPA regulation to reduce greenhouse gas emissions. House Republicans voted by margins of 231-to-10 and 231-to-2, respectively, to defeat identical measures a week later. Most Republicans also opposed U.S. participation in the United Nations Climate Accord signed in Paris by representatives of 196 nations in December. These Republicans seem to know better than the U.S. military, the National Aeronautics and Space Administration, the National Oceanic and Atmospheric Administration, Pope Francis, and nearly every recognized climate scientist in the world.

In recent years, opposition to immigration reform and abortion have become mandatory in Republican circles. An expressed belief in evolution must be avoided like the plague. Any form of tax increase, however fiscally sensible, to pay for essential government services is anathema to conservative principles. Republican opposition to raising taxes resulted in a ten-year delay in long-term Highway Trust Fund legislation. Meanwhile, our nation’s infrastructure continued to decay, with one out of every nine bridges now deemed structurally deficient. It is indeed a credit to Obama’s skills that he has governed effectively despite levels of political obstinacy not seen in my lifetime.

A viable democracy requires that the winning side of a democratic election be allowed to govern. Democracy demands give-and-take after the election is over. Conservative principles should be read and understood by liberals so that common ground can be found. Even Buckley and Goldwater frequently engaged in civil dialogue with their philosophical opponents. But if conservatives wish to be taken seriously as political leaders, they must listen more to voices of reason, like David Brooks and David Frum, and listen less to talk radio. As Frum noted nearly five years ago:

Talk radio thrives on confrontation and recrimination. When Rush Limbaugh said that he wanted President Obama to fail, he was intelligently explaining his own interests. What he omitted to say – but what is equally true – is that he also wants Republicans to fail. If Republicans succeed – if they govern successfully in office and negotiate attractive compromises out of office – Rush’s listeners get less angry. And if they are less angry, they listen to the radio less, and hear fewer ads for Sleepnumber beds.

One need not set aside all principles to help government work and society function, but a government of, by, and for the people requires that its elected Presidents receive a semblance of respect, that votes on judicial appointments not be delayed indefinitely, and that the government not be threatened repeatedly with shut downs and politically motivated, factually-disingenuous congressional investigations. Zero-sum strategies designed to defeat the other side at all costs must be recognized as a violation of the public trust and an abdication of responsibility.

It remains to be seen whether Republicans will nominate a candidate who would rather govern everyone seriously than spew angry rhetoric to the delight of one-fifth of the country. While there is entertainment in watching Republicans fall into complete disarray, there is also great sadness in the spectacle. It is up to all of us to correct it. When Ben Franklin left the Constitutional Convention, he was asked by a passer-by what sort of government had been created. Franklin famously replied, “A Republic. If you can keep it.” The brevity of his response should not detract from its essential meaning, that a democratic republic remains healthy and viable only through an informed citizenry willing to work together for the common good. 

Why I Write

E.B. White at work

Writers do not merely reflect and interpret life, 

they inform and shape life. – E.B. White

There is a part of me that has always wanted to be a “writer,” by which I mean someone who makes a living as a writer. Wouldn’t it be nice, I have thought, to be an author of a bestselling novel or epic work of nonfiction; perhaps a nationally renowned journalist paid to cover the things I care about – U.S. politics, foreign affairs, world religions, and baseball. But as a young boy and through my teenage and early college years, it was an unrealized and mostly suppressed dream to which I gave little thought and even less effort. Although I wrote an occasional short story and made a few journal entries, I did not really begin writing, even for school, until college.

Freshman composition at Wittenberg University forced me to learn the process of putting words to paper, organizing my thoughts, and editing my own work. Though I cannot recall his name, I remember fondly my freshman writing instructor, for he helped me understand the writing process, validated my voice, and encouraged me to write more. When I wrote an essay on President Carter’s decision to grant amnesty to Vietnam War-era draft resisters, concluding it was the right decision and necessary to help the nation heal from a divisive war and a volatile time in American history, he offered skillful edits and gently asked probing questions that helped me to strengthen my arguments. It was the first time I can recall feeling inspired to write about social and political issues and the things that made me feel engaged with the world.

Over the years my writing developed slowly. In college, it consisted of essays and research papers – short reflections on 19th century English novels, a critique of Marxism and Capitalism, essays on political economy and the writings of John Kenneth Galbraith, Arthur Okun, Milton Friedman, and the country’s most prominent economic philosophers. I still have many of those college papers, because they remind me of when I first realized my passion for ideas and believed I had something worthwhile to say. And it laid a foundation for what later developed into a true love of writing, and desire to learn, that I continue to court and spark in the essays and writings on this blog and in my two books: Life Goes On and Eat Bananas and Follow Your Heart.

I am not likely ever to write a best-selling novel (I was cursed with a happy childhood) or the definitive biography of a Kennedy or Roosevelt. My professional career, as a trial lawyer and prosecutor, and for the past nine years as an investigative consultant, has been challenging and fulfilling. And yet, I remain compelled to write on these pages, not for money or fame, but to satisfy a profound need. Occasionally, I am asked, if not for money, if it is not something you are paid to do, why write? It’s a good question, for which I have many answers.

I write to enrich my understanding of the world around me. Writing helps me express my thoughts and put into words my perspectives on life and the rich diversity of humanity.

I write because I am fundamentally an optimistic person. I believe it is possible for the world’s major conflicts to someday end, for long-standing enemies to coexist in relative peace and mutual understanding. Some call this naïve – but they are mistaken. I fully recognize the obstacles to peace and hopeful resolutions. I believe in hope despite the odds. The possibility of peace in the most conflicted parts of the world is possible so long as human beings are capable of empathy and understanding, of walking in another man’s shoes. How the nations of the world can make this happen is the challenge for which writers, thinkers, and concerned citizens can and must make a contribution.

I write because I am inspired by a famous quote of Margaret Mead, which is printed on a large board in my study: “Never doubt that a small group of thoughtful committed citizens can change the world. Indeed, it’s the only thing that ever has.” Writers, musicians, artists, philanthropists, business and political leaders, and yes, citizens, have the capacity to genuinely transform not just perceptions, but reality.

I write because I am optimistic about life. Despite my occasional brooding, I am happy to be alive and to experience life in all its dimensions. I write to share with others how I see things and to invite respectful dialogue. Though I hope to impact the thinking of others, I write mostly to record my thoughts, goals, dreams, and struggles.

I write about life because to be alive, to breathe the cool winter air on a crisp, sun-filled day is a tiny miracle of creation. “When [was] the last time you tiptoed out your kitchen door, or onto a fire escape, and took in the sky show?” asks Barbara Mahany at OnBeing.  “It’s there every night: the stars and the moon, waxing or waning, a night-after-night lesson in fractions. Lessons in wonder.” Writing helps me see this more clearly.

Writing allows me to reflect on life’s journey, on personal history, on the hopes and fears for my children, on love and loss, dreams and disappointments. Supplemented by books and good conversation, writing helps me to more fully observe the world’s abundant beauty and chaotic mess.

I write frequently about religion and faith because I remain fascinated by our ancient quest for understanding, humanity’s struggle to understand its place in the universe, its relationship to God and to each other. “Religion is an answer to man’s ultimate questions,” wrote Abraham Joshua Heschel in God in Search of Man (Farrar, Straus and Giroux, 1955). “The moment we become oblivious to ultimate questions, religion becomes irrelevant, and its crisis sets in.”

I am awestruck by the many expressions of God and faith that have existed in human history and that continue to flourish in profoundly meaningful and, at times, deeply disturbing ways. Whether or not one believes in God, and what truths one accepts, are deeply personal. Some expressions of faith, even ones to which I cannot subscribe, are beautiful to observe – the liturgy of the Catholic Church, the passing of the peace, saying kaddish at Friday night Shabbat, the Muslim call to prayer, Buddhist meditation, the spiritual silence of a Quaker meeting; candles and blessings, prayers, recitations, and songs reflect the many different ways in which humans express their faith, honor traditions, and commune with God. The world contains a mosaic of faiths, beliefs and disbeliefs, grandeur and mystery. I write to explain my personal search for God and my ever-present struggle to understand the mystery of life and death and what Heschel called “the sense of wonder” and “awareness of the divine.”

I write also to counter religious provincialism and small-mindedness, which infect all of the world’s major religions. I believe religious illiteracy, simplistic and lazy thinking concerning the different religious beliefs and traditions of others – is the single greatest cause of hatred, bigotry, intolerance and violence in the world today.

I write about politics because I believe it our duty as citizens to remain engaged and informed. To write meaningfully requires one to think, read, observe, listen, and research. It is in the political arena that so much of what drives my writing is played out. For much of my life I have been an observer; interested, informed, opinionated, but not always involved. Although I attended an occasional march and protest rally, it is really not my style. Debate and dialogue, letters to elected officials, voting, canvasing, and the art of persuasion are where my energies are best used. And writing – from dispassionate reflection to passionate advocacy – is the forum in which I am most comfortable.

I write to express concern for the direction of our nation and the times in which we live. For all its flaws, American democracy is our best hope for positive social change, for incremental improvements to our civic life, for greater equality, better schools, fair housing and universal health care, peace and justice. It is where the great issues of the day are debated and decided. Lately, I struggle to understand the popularity of Donald Trump among a segment of the electorate that appears to desire a rude, boisterous, and perversely unenlightened leader who appeals to the basest elements of our nature, to xenophobia, and intolerance. It is a sad commentary on the state of American politics, though it is hardly the first time America has been divided or disproportionately influenced by a demagogue of despair. After all, it is hard to imagine that things were better in the days of Joe McCarthy and Father Coughlin.

Finally, I write about baseball because, from a very young age, baseball has captured my imagination and allowed me to live in an alternate universe, where the grass, the sun, the open air, the diamond shaped infield and green expanse of the outfield entered my soul and let me share in its wonder. No sport so easily translates into the written word, to literature and reflection, to life as metaphor. Few things in life give me as much satisfaction as a baseball game on a summer night. Baseball embodies the American spirit, the promise of childhood, and dreams of young boys in old men’s bodies.

So, as a new year begins, despite the noise and ugliness dominating the world scene on most days and the many conflicting demands on my time, I will continue to write and think about politics, life, and religion; to root unapologetically for the St. Louis Cardinals; and to offer my modest contribution to the literary craft.

. . . let me live, love, and say it well in good sentences. – Sylvia Plath