Friday, October 19, 2018

Jottings - slice of life - 241 ( The nomination of a Justice to the supreme court, context, and a little commentary on the “Me too” campaigns)

Jottings - slice of life - 241 ( The nomination of a Justice to the supreme court, context, and a little commentary on the “Me too” campaigns)
From the time the declaration of Independence was signed in 1776 signaling to King George III the intentions of the pilgrims to live as an independent community, to the signing of the constitution in 1787, America and Americans had thought, cogitated, fought and wisely counseled for ten intervening years on how they should govern themselves. They borrowed the best of ideas from Europe, from France especially and constituted their own charter. However, It remains one of the greatest ironies in history that the founding fathers of the United states of America, after having spent a decade formulating, debating and refining the constitution of the country; after prolonged deliberations and persuasion managed to convince the thirteen odd fractious states to adopt a common framework of laws and institutions ; after bringing together some of greats minds of the generation - George Washington, James Madison, James Wilson and few more - into closed assembly halls of New York and Philadelphia to create statutes governing the rights and eligibility of citizens of free America; after achieving the due process of consensus established three arms of Executive, legislative and the Judiciary, and went to scope and write elaborate provisions on how to execute, legislate - did not, however, in an incomprehensible act of omission or oversight or supreme confidence or pride in the maturity of their infant republic, find it necessary to define with precision the qualifications for appointment of justice of supreme court of the Unites states of America - the supreme custodian of the national identity. All that Article 2 of the US constitution codifies regarding appointments to the highest court in the country is this: “ He (President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court…”
This simple statement without any frills or embellishments, interjected into statute as an adjunct , as though architects of the constitution were singularly unworried about the quality of the man selected for this high post - seems to be an inadvertent error, for which generations of Americans have paid the price of having men and women nominated and elected at the whim and fancies of the incumbent president in connivance with the Senate. The nominee could be anybody. He need not have background in Law, need not be a citizen of the United states; age is not barrier, nor is his upbringing of any importance. For every other appointment in the constitution , there are clear standards for nomination - including the President; but not for the justices of Supreme court. Additionally, the constitution set the original number of Justices serving anytime at nine; but again, the architects of the constitution gave the President and the congress powers to vary that number as needed. Presidents who needed judicial support to further their own agenda have sought to use this power indiscriminately - often successfully. In 1800, Thomas Jefferson, the most uncanny President of them all, increased the bench by two, in 1837 Andrew Jackson altered the number to suit his convenience, and in more recent times Franklin Roosevelt after his dream first term attempted to increase the numbers of Justices to further his “New deal” agenda. Roosevelt failed; but the point is that the constitution gives the President and the congress the ability to frame the national agenda on vital issues by packing the Supreme court benching with nominations leaning towards their own party ideologies or personal preferences at that time.
It was only during Nixon era and after that broad guidelines on who can be nominated came into being. Mind you, these were not mandated by law, but arose out of common belief that some basic criteria were required to occupy positions of the highest court in the land. That a nominee should be from a legal background, should have adjudicated matters of national concern and arbitrated in a fair manner, should be a member of the inner circle of the party and President, should also have a moral standing in community at the time of the nomination - these were the broad consensus on who could be nominated.
At 53, the handsome and articulate Brett Kavanaugh possesses all the qualifications necessary to be nominated and confirmed by the Senate. A top class Yale graduate, independent counsel, part of the commission which produced the Starr report urging the impeachment of Bill Clinton, part of President Bush’s inner circle of administration whetting judicial nominees, nominated to Court of appeals in early 2000 with distinguished track record in lower courts with notable ruling in wide ranging issues including areas of abortion, environment laws, free speech and civil liberties, written over 300 legal opinions on matters of national interest in a judicial tenure of 12 years, composed dissenting decision on past Presidents actions when constitutional law preponderated over parochial concerns. There is nothing in his professional career which can be cause for disqualification. Its Presidents Trump good fortune, that two supreme court vacancies turned up in his first two years at office, and both his nominations went through the senate process. This is the tradition since the day the republic was born, and practiced by no less than a president than Abraham Lincoln, who subtly recommended and sought to fill vacancies with people resonating with his own political views. In those days, not much was known about the inner process of appointments, but in our age, the whole drama is played out under the glare of public scrutiny.
I listened to senator collins’s speech at the Senate floor, and I think she hit the right note when she said: “ I have always opposed litmus tests for judicial nominees with respect to their personal views or politics, but I fully expect them to be able to put aside any and all personal preferences in deciding the cases that come before them”. This is the right approach to consider a nominee for any official position for great merit - whether it be in public service or private enterprise, unless there is grave moral deficiency in the present character of the nominee that debars him from such an office. To open cupboards, and let out thirty years old skeletons may seem very sensational and right thing to do; but not many can pass the litmus test of such a scrutiny. Christine Blasey ford was certainly speaking the truth, it was evident that she had been sexually assaulted; but at this distance of time, neither she or anybody else has any conclusive evidence that Brett Kavanaugh was the man. Her evidence, and her demeanor throughout this case was one of self-doubt heavily bolstered and egged on by politicians who had their own axes to grind and had little regard for Ms ford’s present, past or future. Now that Brett Kavanaugh is on the supreme court, I pray that Ms Ford gets back to normal life.
This surging world wide wave of “Me too” campaign is great and much needed in the times we live. Nobody should be sexually touched without their concern - male or female. This is the biological law, let alone social, moral and ethical. It is encouraging to see women opening up on their sexual abuses to wide eyed and sensation seeking couch potatoes in tear filled interviews on public media. It does bring in sympathy, restraint, civility and gender corrections to the discourse, and sometimes can add a touch of spotlight or help boost declining or fledging careers; but let us also be careful where we draw the line between where truth begins and fiction ends. While all attempts must be made to establish the truth of sexual assaults and inappropriate behavior, and initiate whatever corrective action is appropriate; we must be careful about our definitions, context and the nature of our professions. We are inclined ( and we must) to believe the victim when they talk openly about a male member, and nine out of ten times, the accusation is likely to be true. At the same time, we should also look at the redressing the balance holistically. By persistently tugging at one end of the string, we are likely to distort the shape of it. This is the case with gender imbalances and resulting accusations.
Coming back to my topic, I would like share with another insight from Senator Collins during her speech, that touched upon the role technology and social media plays in fueling our grievances, anger and ill will. Towards the end of her speech, she said: “When some of our best minds are seeking to develop even more sophisticated algorithms designed to link us to websites that only reinforce and cater to our views, we can only expect our differences to intensify”. The Brett Kavanaugh case wouldn’t have reached this level of frenzy, if not for the constant bombardment of our senses and intellect from different sources. Hysteria is the term doctors used in the seventeenth and eighteenth centuries to refer whipped up passions based on a trigger. Once the juggernaut starts rolling downhill, there is no stopping it, unless one steps out of way, look at it from a distance, and embrace the bigger picture. Perspective kicks in, and we see things in newer light.
In 1841, Charles Mackay, a Scottish poet, journalist and student of Human nature, wrote a great book, which sadly is not found in many bookshelves today. It is titled “ Extraordinary Popular Delusions and the Madness of Crowds”. A thick book that documents all the major cases of hysteria in recorded human history, which has its trigger in economic, social, religious and ethical concerns. It is a wonderful book, written in great style and energy, and can be quite appropriate for our current age. I have it with me by my bedside, and dip into its pages whenever I get emotionally carried away by something I have seen, read or heard. To read about frenzies that have taken hold of man over the ages, and the foolish mental traps we fall into based on hearsay, can be quite redeeming. In one of the most striking observations in the book, Charles Mackay writes:
“Of all the offspring of Time, Error is the most ancient, and is so old and familiar an acquaintance, that Truth, when discovered, comes upon most of us like an intruder, and meets with the intruder's welcome..”
I think the above statement sums it all.
God bless…
yours in mortality,
Bala

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