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Two judicial candidates and Indiana Right to Life recently sued to overturn long-established Indiana rules of judicial conduct. Those rules prohibit judges from answering surveys from advocacy groups about matters likely to come before the court. In the case of Right to Life, the surveys ask judicial candidates their views on abortion and euthanasia, arguing that voters have a right to know where potential judges stand.

This is like choosing football referees by asking which teams they favor.

To belabor the sporting analogy, our legal system is set up with the expectation that the “teams”—the plaintiff and defendant—will vigorously compete in court. Judges and juries, however, are expected to be objective referees. Their job is not to root for one side or the other, but to apply the rules, or laws, fairly. Good referees are chosen for their knowledge of the rules, their ability to recognize instances when those rules have been broken, and to call them like they see them.

Biased judicial referees can apply the rules in ways that game the system. There has been a great deal of concern in the legal community about the imposition of ideological  “litmus tests” for appointees to the federal bench, especially to the Supreme Court. The Bush Administration has consistently preferred judicial candidates who favor authority, who believe in executive supremacy (sometimes called the theory of the “unitary executive”) and opt for order over justice. With the addition of Justices Roberts and Alito, especially, the Court has significantly limited the ability of ordinary citizens to complain about actions of either government or big business.

Two recent examples may illustrate the point.

Last year, the Court handed down a relatively obscure ruling in Hein v. Freedom from Religion Foundation. The case was a challenge to the constitutionality of portions of the President’s Faith-Based Initiative. Applicable precedents—the existing rules of the game—strongly favored the plaintiffs.  But the Court didn’t rule whether the program was constitutional or not; instead, it dramatically tightened a doctrine called “taxpayer standing” and ruled that the plaintiffs, being mere taxpayers, had no right to complain. If you’re not allowed to suit up or take the field, it doesn’t matter how well you can play.

Or take the case of Lily Ledbetter, the female Goodyear employee who discovered, after 19 years on the job, that she was making substantially less than male employees doing the same work. The company closely guarded its payroll information, making it nearly impossible for workers to discover relative pay scales. Nevertheless, the Court held that the applicable statute gives 180 days from the date of “the violation” to sue, and “the violation” occurred when Lily was first paid. (The dissenters would have upheld the lower court ruling in Lily’s favor, and would have considered each paycheck a new violation for purposes of the statute.)

That’s how rules get applied when one of the teams gets to pick the referee. I don’t think we want to change Indiana’s rules of judicial conduct.   

 

 

 

 

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Word Column                                                              Sheila Suess Kennedy

January 29, 2008                                                          811 words

 

A Post-Culture-War America?                                                                        

Okay, let me begin with an admission—I’m obsessed with the Presidential campaign. Totally, hopelessly obsessed. I spend really embarrassing amounts of time emailing back and forth with two of my sons who are equally obsessed, and equally enamored of “my” candidate.

By the time this column appears in print, the primary may well be decided. Worse, on those rare occasions when I force myself to be realistic, I have to admit that the odds are against my guy; the smart money says he isn’t going to be the candidate. The thing is, it has been so long since there has been a national candidate I could wholeheartedly support; it’s sort of like falling in love, even when you know—as my husband keeps warning me—you are likely to get your heart broken. Again.

When I sat down to write this column, I wasn’t going to write about the primary. But then I thought about why it is that I am so enthusiastic about Barack Obama, why his emergence has made me feel almost hopeful for the future of the country I love, and it seemed a phenomenon worth exploring, because his candidacy has a particular message for America’s minority communities, including the gay community.

The past seven years have been a disaster for America, and if polls are to be believed, a significant majority of Americans recognize the dimensions of that disaster. We are a sour, dispirited electorate. (My husband says I’ve been in a really bad mood since 2000.) In the immediate aftermath of 9-11, there was a rush of national solidarity and the best kind of patriotism, but it didn’t take long for this Administration to slam that window shut, and to turn us against each other. “Good Christian Amuricans” were under attack by “Islamofascists,” “homosexual deviates,” “secular humanists” and other assorted heathens—and they weren’t going to let us forget to be very, very afraid.

Fair is fair; this Administration didn’t invent the culture wars. They just used culture war issues to gain and retain power. I don’t have to remind readers of The Word how Karl Rove and his political disciples sliced and diced the electorate in order to win elections; anyone who voted in a swing state in 2004 knows just how well the cynical use of state constitutional marriage amendments worked—bringing out the haters to vote against the “queers” and not coincidentally to pull a lever for George W. Bush.

Bush and his crowd will be gone in November, and we can all breathe a sigh of relief. (Hell, we can have a party! I certainly intend to.) It is certainly true that almost anyone who takes the oath of office next January will be an improvement. But we have a chance to do more than trade a sleazy, incompetent Commander in Chief for a sleazy, competent one. We have a chance to elect a post-culture-war President, and begin to put the nastiness and intolerance behind us.

When the campaign began, I’d have gladly taken any of the Democratic front-runners. (Someday, perhaps, if the sane people retake control of the GOP, I can feel that way about Republicans again…). But after watching the Clintons’ willingness to say and do anything in South Carolina—their willingness to distort, smear and shamelessly use the race card a la Karl Rove—I no longer feel that way.

The Clintons have been allies of the African-American community for decades—but they were clearly willing to throw blacks under the bus when they thought it served their purposes. “Don’t ask, don’t tell” gave the gay community a taste of how lasting their commitment to gay rights was. Hillary is running well among Hispanics, but she was quick to retreat from her statement at an early debate that undocumented workers should be able to obtain drivers’ licenses—an issue very important to that community. It’s hard to escape the conclusion that the Clintons’ alliances are strategic—and disposable—rather than principled and enduring.

As Ted Kennedy said when he endorsed Obama, we have a chance to make this a transformational election. We can put a new kind of candidate in office; multi-ethnic, multi-racial and post-culture-war. As Obama himself said in his South Carolina victory speech, this is not an election about gender or race or ethnicity—it is about the old politics versus a new politics. It is about the past versus the future.

I am so ready for that future.

It may be that by the time you read this column, the primary is effectively over. It may well be the case that the “old politics” has won. (There’s an old saying that goes, “age and treachery will beat youth and skill every time,” and for all I know, that’s true.) But for right now, for the first time in a very long time, I’m in a good mood.

 

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I’ve had it. And the 2008 election system has just started.

According to the pollsters, I am one of those “older female voters” who can be counted on to support Hillary Clinton because, after all, we’re so much alike. We share a gender.

This may come as a big shock to the so-called “analysts” who like to slice and dice the electorate into “interest groups” and “market niches” based upon some wonky version of identity politics, but women—even those of a “certain age”—are not a monolithic voting bloc. Not long ago, I wrote about my irritation with negative gender stereotypes: the South Carolina (female) Republican who employed a sexist term for Clinton, and the patronizing (male) commentators who applied a gender lens to every tactic employed by her campaign. I think many women feel the same impatience with that sort of one-dimensional approach to her candidacy.

But guess what? Many of us are equally impatient with a candidate who seems to feel entitled to our votes simply by virtue of a common gender, and with pundits who give that entitlement legitimacy. When Barack Obama was asked whether he anticipated getting a major share of the African-American vote, he sensibly replied that he expected he’d need to earn every vote. He clearly recognized what the “chattering classes” seem unable to grasp, that women, blacks, Latinos, young people and all the other groups into which voters get lumped consist of individuals who are more—and more complicated—than those labels reflect.      

In both the Republican and Democratic primaries, we have seen strong signals that voters are tired to death of the poll-centered politics of the last few election cycles. Both Huckabee and McCain have based their appeals to GOP voters on straight talk; Mitt Romney, vastly better financed and clearly more acceptable to the business wing of the party, has dutifully designed (or changed) his positions on the basis of his polling. Conventional wisdom favored Romney, but so far, actual voters haven’t.  

Among Democrats, as Frank Rich observed in the New York Times, it is the Clinton campaign, led by pollster Mark Penn, that is following the older script. “In Mrs. Clinton’s down-to-earth micropolitics, polls often seem to play the leadership role. That leaves her indecisive when one potential market is pitched against another.” If those polls also tell her she can count on women’s votes, she’s in for a surprise. This election won’t be decided on the basis of gender or race. They won’t be irrelevant, but they won’t be decisive, either.

This is an election about the future, about where we are going as a nation. It is about who can best bring a sour, fractured, dispirited citizenry together again, about who can best heal the deep divisions created by wedge issues and culture wars and pandering to political bases. It’s about vision and hope—and yes, change.

It isn’t about identity politics. Candidates who think it is are part of the past we so desperately need to change.

 

Comments

I’ve had it. And the 2008 election system has just started.

According to the pollsters, I am one of those “older female voters” who can be counted on to support Hillary Clinton because, after all, we’re so much alike. We share a gender.

This may come as a big shock to the so-called “analysts” who like to slice and dice the electorate into “interest groups” and “market niches” based upon some wonky version of identity politics, but women—even those of a “certain age”—are not a monolithic voting bloc. Not long ago, I wrote about my irritation with negative gender stereotypes: the South Carolina (female) Republican who employed a sexist term for Clinton, and the patronizing (male) commentators who applied a gender lens to every tactic employed by her campaign. I think many women feel the same impatience with that sort of one-dimensional approach to her candidacy.

But guess what? Many of us are equally impatient with a candidate who seems to feel entitled to our votes simply by virtue of a common gender, and with pundits who give that entitlement legitimacy. When Barack Obama was asked whether he anticipated getting a major share of the African-American vote, he sensibly replied that he expected he’d need to earn every vote. He clearly recognized what the “chattering classes” seem unable to grasp, that women, blacks, Latinos, young people and all the other groups into which voters get lumped consist of individuals who are more—and more complicated—than those labels reflect.      

In both the Republican and Democratic primaries, we have seen strong signals that voters are tired to death of the poll-centered politics of the last few election cycles. Both Huckabee and McCain have based their appeals to GOP voters on straight talk; Mitt Romney, vastly better financed and clearly more acceptable to the business wing of the party, has dutifully designed (or changed) his positions on the basis of his polling. Conventional wisdom favored Romney, but so far, actual voters haven’t.  

Among Democrats, as Frank Rich observed in the New York Times, it is the Clinton campaign, led by pollster Mark Penn, that is following the older script. “In Mrs. Clinton’s down-to-earth micropolitics, polls often seem to play the leadership role. That leaves her indecisive when one potential market is pitched against another.” If those polls also tell her she can count on women’s votes, she’s in for a surprise. This election won’t be decided on the basis of gender or race. They won’t be irrelevant, but they won’t be decisive, either.

This is an election about the future, about where we are going as a nation. It is about who can best bring a sour, fractured, dispirited citizenry together again, about who can best heal the deep divisions created by wedge issues and culture wars and pandering to political bases. It’s about vision and hope—and yes, change.

It isn’t about identity politics. Candidates who think it is are part of the past we so desperately need to change.

 

Comments